809.22
809.22
Rule (Oral argument). 809.22(1)
(1) The court shall determine whether a case is to be submitted with oral argument or on briefs only.
809.22(2)
(2) The court may direct that an appeal be submitted on briefs only if:
809.22(2)(a)1.
1. Are plainly contrary to relevant legal authority that appear to be sound and are not significantly challenged;
809.22(2)(a)2.
2. Are on their face without merit and for which no supporting authority is cited or discovered; or
809.22(2)(a)3.
3. Involve solely questions of fact and the fact findings are clearly supported by sufficient evidence; or
809.22(2)(b)
(b) The briefs fully present and meet the issues on appeal and fully develop the theories and legal authorities on each side so that oral argument would be of such marginal value that it does not justify the additional expenditure of court time or cost to the litigant.
809.22(3)
(3) The court shall determine the amount of time for oral argument allowed to each party in a case either by general or special order.
809.22(4)
(4) On motion of any party or its own motion, the court may order that oral argument be heard by telephone.
809.22 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 141 Wis. 2d xiii (1987).
809.22 Note
Judicial Council Committee's Note, 1978: The Supreme Court has for a number of years scheduled some cases for submission on briefs only without oral argument in an effort to accommodate its burgeoning caseload. The criteria by which the court decides whether a case is to have oral argument have never been formally adopted. This rule is a statement of those criteria. Counsel should address these criteria in their briefs in discussing the question of the need for oral argument. See Rule 809.19 (1) (c). Flexibility is provided by sub. (3) as to the length of oral argument in order to meet the needs of an individual case. It may be appropriate, for example, to have an oral argument for the sole purpose of allowing the court to ask questions of counsel. [Re Order effective July 1, 1978]
809.22 Note
Judicial Council Note, 1988: Sub. (4) [created] authorizes oral arguments to be heard by telephone conference on motion of any party or the court of appeals. [Re Order effective Jan. 1, 1988]
809.23
809.23
Rule (Publication of opinions). 809.23(1)(a)(a) While neither controlling nor fully measuring the court's discretion, criteria for publication in the official reports of an opinion of the court include whether the opinion:
809.23(1)(a)1.
1. Enunciates a new rule of law or modifies, clarifies or criticizes an existing rule;
809.23(1)(a)2.
2. Applies an established rule of law to a factual situation significantly different from that in published opinions;
809.23(1)(a)3.
3. Resolves or identifies a conflict between prior decisions;
809.23(1)(a)4.
4. Contributes to the legal literature by collecting case law or reciting legislative history; or
809.23(1)(a)5.
5. Decides a case of substantial and continuing public interest.
809.23(1)(b)1.
1. The issues involve no more than the application of well-settled rules of law to a recurring fact situation;
809.23(1)(b)2.
2. The issue asserted is whether the evidence is sufficient to support the judgment and the briefs show the evidence is sufficient;
809.23(1)(b)3.
3. The issues are decided on the basis of controlling precedent and no reason appears for questioning or qualifying the precedent;
809.23(1)(b)5.
5. It is a per curiam opinion on issues other than appellate jurisdiction or procedure;
809.23(2)
(2) Decision on publication. The judges of the court of appeals who join in an opinion in an appeal or other proceeding shall make a recommendation on whether the opinion should be published. A committee composed of the chief judge or a judge of the court of appeals designated by the chief judge and one judge from each district of the court of appeals selected by the court of appeals judges of each district shall determine whether an opinion is to be published.
809.23(3)
(3) Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of res judicata, collateral estoppel, or law of the case.
809.23(4)(a)(a) Except as provided in
par. (b), any person may at any time file a request that an opinion not recommended for publication or an unreported opinion be published in the official reports.
809.23(4)(b)
(b) No request may be made for the publication of an opinion that is a decision by one court of appeals judge under
s. 752.31(2) and
(3) or that is a per curiam opinion on issues other than appellate jurisdiction or procedure.
809.23(4)(c)
(c) A person may request that a per curiam opinion that does not address issues of appellate jurisdiction or procedure be withdrawn, authored and recommended for publication. That request shall be filed within 20 days of the date of the opinion and shall be decided by the panel that decided the appeal.
809.23(4)(d)
(d) A copy of any request made under this subsection shall be served under
s. 809.80 on the parties to the appeal or other proceeding in which the opinion was filed. A party to the appeal or proceeding may file a response to the request within 5 days after the request is filed.
809.23 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii;
1981 c. 390 s.
252; Sup. Ct. Order, 109 Wis. 2d xiii (1982); Sup. Ct. Order, 118 Wis. 2d xiii (1984);
1991 a. 189, Sup. Ct. Order 96-10, 208 Wis. 2d xiii (1997).
809.23 Note
Judicial Council Committee's Note, 1978: As with Rule 809.22 on oral argument, a former practice of the Supreme Court is written into this Rule and formal criteria established for it. The trend toward nonpublication of opinions is nationwide and results from the explosion of appellate court opinions being written and published. Many studies of the problem have concluded that unless the number of opinions published each year is reduced legal research will become inordinately time-consuming and expensive. Some argue that even accepting the premise that a court may properly decide not to publish an opinion this should not prevent that opinion from being cited as precedent since in common law practice any decision of a court is by its nature precedent. Others argue that a court may try to hide what it is doing in a particular case by preventing the publication of the opinion in the case.
809.23 Annotation
There are several reasons why an unpublished opinion should not be cited: (1) The type of opinion written for the benefit of the parties is different from an opinion written for publication and often should not be published without substantial revision; (2) If unpublished opinions could be cited, services that publish only unpublished opinions would soon develop forcing the treatment of unpublished opinions in the same manner as published opinions thereby defeating the purpose of nonpublication; (3) Permitting the citation of unpublished opinions gives an advantage to a person who knows about the case over one who does not; (4) An unpublished opinion is not new authority but only a repeated application of a settled rule of law for which there is ample published authority.
809.23 Annotation
If it is desirable to reduce the number of published opinions, the only alternative to having some opinions unpublished is to decide cases without written opinions. This would be far worse because it would compound the problems of nonpublication and at the same time take away from the parties the benefit of a written opinion.
809.23 Annotation
Section 752.41 (3) authorizes the Supreme Court to establish by rule the procedure under which the Court of Appeals decides which of its opinions are to be published. Sub. (1) provides for a committee of judges of the Court of Appeals to make this decision.
809.23 Annotation
As a safeguard against any mistakes as to nonpublication, sub. (4) adopts the procedure of the United States Court of Appeals for the Seventh Circuit in permitting a person to request that an unpublished opinion be published. [Re Order effective July 1, 1978]
809.23 Note
Judicial Council Committee's Note, 1979: Sub. (4) is amended to delete the prior requirement that a motion had to be filed in order to ask the Court of Appeals to have one of its unreported opinions published in the official reports of the Court of Appeals. Requiring a motion to be filed led to confusion in some instances because the person requesting the opinion to be published may not be a party to the appeal decided by the opinion and uncertainty can occur as to who should be served with a copy of the motion and given an opportunity to respond. The requirement to file a motion has been replaced by the need to simply make a request to the Court of Appeals for publication of an unreported opinion. [Re Order effective Jan. 1, 1980]
809.23 Note
Court of Appeals Note, 1997: A request under this paragraph [sub. (4) (c)] does not affect the time under sec. (Rule) 809.62 for filing a petition for review. As in the case of reconsideration of a Court of Appeals decision or opinion, withdrawal of an opinion renders that opinion a nullity. Accordingly, a petition for review of that opinion filed prior to its withdrawal is of no effect, except that the petitioner may incorporate it by reference in a petition for review of the opinion subsequently issued in the appeal or proceeding.
809.23 Note
Court of Appeals Note, 1997: The Court of Appeals recognizes that many of its opinions are issued as per curiam opinions that should not be published under sec. (Rule) 809.23(1)(b)5, Stats. This amendment [of sub. (4)] establishes a procedure whereby a person may request that a per curiam opinion be withdrawn, authored and recommended for publication. The amendment also expressly states that an opinion issued by a single judge of the Court of Appeals under sec. 752.31(2) and (3), Stats., will not be published.
809.23 Annotation
An attorney was fined $50 for citing an unpublished opinion of the Court of Appeals. Tamminen v. Aetna Casualty & Surety Co.
109 Wis. 2d 536,
327 N.W.2d 55 (1982).
809.23 Annotation
Citation to an unpublished Court of Appeals decision to show a conflict between districts for purposes of s. 809.62 (1) (d) is appropriate. State v. Higginbotham,
162 Wis. 2d 978,
471 N.W.2d 24 (1991).
809.23 Annotation
A party's invitation to the court of appeals to consider an unpublished opinion, or even a naked citation to it, violates the letter and spirit of sub. (3). Kuhn v. Allstate Co.
181 Wis. 2d 453,
510 N.W.2d 826 (Ct. App. 1993).
809.23 Annotation
Only the Supreme Court has the power to overrule, modify or withdraw language from a published opinion of the Court of Appeals. Cook v. Cook,
208 Wis. 2d 166,
560 N.W.2d 246 (1997).
809.23 Annotation
The noncitation rule and the concept of stare decisis. Walther. 61 MLR 581 (1978).
809.23 Annotation
Publication of court of appeals' opinions. Scott. WBB July 1988.
809.24
809.24
Rule (Reconsideration). The court of appeals may on its own motion reconsider a decision or opinion at any time prior to remittitur if no petition for review under
s. 809.62 is filed or within 30 days of the filing of a petition for review. A motion for reconsideration is not permitted.
809.24 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981);
1981 c. 390 s.
252.
809.24 Note
Judicial Council Committee's Note, 1981: Rule 809.24 is amended to refer properly to the petition for supreme court review of decisions of the court of appeals. The rule has been redrafted stylistically. No substantive change is intended. [Re Order effective Jan. 1, 1982]
809.25
809.25
Rule (Costs and fees). 809.25(1)(a)(a) Costs in a civil appeal are allowed as follows unless otherwise ordered by the court:
809.25(1)(a)1.
1. Against the appellant before the court of appeals when the appeal is dismissed or the judgment or order affirmed.
809.25(1)(a)2.
2. Against the respondent before the court of appeals when the judgment or order is reversed.
809.25(1)(a)3.
3. Against the petitioner before the supreme court when the judgment of the court of appeals is affirmed by the supreme court.
809.25(1)(a)4.
4. Against the respondent before the supreme court when the judgment of the court of appeals is reversed by the supreme court and the costs in the court of appeals are canceled and may be taxed by the supreme court as costs against another party.
809.25(1)(b)1.
1. Cost of printing and assembling the number of copies and briefs and appendices required by the rules, not to exceed the rates generally charged in Dane County, Wisconsin, for offset printing of camera-ready copy and assembling;
809.25(1)(b)3.
3. Cost of the preparation of the transcript of testimony or for appeal bonds;
809.25(1)(b)4.
4. Fees of the clerk of the trial court for preparation of the record on appeal;
809.25(1)(c)
(c) A party seeking to recover costs in the court shall file a statement of the costs within 14 days of the filing of the decision of the court. An opposing party may file, within 7 days of the service of the statement, a motion objecting to the statement of costs.
809.25(1)(d)
(d) Costs allowed by the court are taxed by the clerk of the court of appeals irrespective of the filing by a party of a petition for review in the supreme court. In the event of review by the supreme court, costs are taxed by the clerk of the supreme court as set forth in
pars. (a) and
(b). The clerk of the supreme court shall include in the remittitur the costs allowed in the court. The clerk of circuit court shall enter the judgment for costs in accordance with
s. 806.16.
809.25(2)(a)(a) The clerk of the court shall charge the following fees:
809.25(2)(a)1.
1. For filing an appeal, cross-appeal, petition for review, petition to bypass, or other proceeding, $150.
809.25(2)(a)2.
2. For making a copy of a record, paper, or opinion of the court and comparing it to the original, 40 cents for each page.
809.25(2)(a)3.
3. For comparing for certification of a copy of a record, entry or paper, when the copy is furnished by the person requesting its certification, 25 cents for each page.
809.25(2)(a)4.
4. For a certificate and seal, $1, except for an attorney's certificate of good standing, $3.
809.25(2)(b)
(b) The state is exempt from payment of the fees set forth in
par. (a) 1. to
4., except that the clerk is not obligated to supply the state with free copies of opinions.
809.25(2)(c)
(c) The clerk of the court of appeals may refuse to file, record, certify, or render any other service without prepayment of the fees established by this section.
809.25(3)(a)(a) If an appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party costs, fees and reasonable attorney fees under this section. A motion for costs, fees and attorney fees under this subsection shall be filed no later than the filing of the respondent's brief or, if a cross-appeal is filed, the cross-respondent's brief.
809.25(3)(b)
(b) The costs, fees and attorney fees awarded under
par. (a) may be assessed fully against the appellant or cross-appellant or the attorney representing the appellant or cross-appellant or may be assessed so that the appellant or cross-appellant and the attorney each pay a portion of the costs, fees and attorney fees.
809.25(3)(c)
(c) In order to find an appeal or cross-appeal to be frivolous under
par. (a), the court must find one or more of the following:
809.25(3)(c)1.
1. The appeal or cross-appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
809.25(3)(c)2.
2. The party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
809.25 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981);
1981 c. 316,
317;
1981 c. 390 ss.
220,
252;
1985 a. 29; Sup. Ct. Order, 151 Wis. 2d xvii (1989);
1995 a. 224;
1997 a. 254;
1999 a. 85.
809.25 Note
Judicial Council Committee's Note, 1978: Most of the provisions of former ss. 251.23 and 251.90 are retained. The major change is to provide that execution for costs in the Court of Appeals is to be had in the trial court in accordance with Rule 806.16 rather than in the Court of Appeals. The Judicial Council did not review the adequacy of the fees and thus made no recommendations on them. It is suggested, however, that many of the fees appear to be out of date and should be revised. This should be done in connection with a general review of fees in all courts. [Re Order effective July 1, 1978]
809.25 Note
Judicial Council Committee's Note, 1979: Sub. (1) (a) and (d), which governs costs that are allowed in an appeal to the Court of Appeals or a review by the Supreme Court, have been amended for purposes of clarification.
809.25 Annotation
A provision has been added to clarify that costs are taxed by the clerk in the Court of Appeals irrespective of the filing of a petition for review in the Supreme Court. In the event of review by the Supreme Court, a provision has been added specifically stating that costs are allowed against a petitioner in a case before the Supreme Court when the decision of that court affirms a judgment of the Court of Appeals.
809.25 Annotation
An additional clarifying provision has been added allowing costs against a respondent in a case before the Supreme Court when the petitioner before the Supreme Court has achieved reversal of a judgment of the Court of Appeals. The provision further states that the costs that were allowed when the case was originally decided by the Court of Appeals are canceled. [Re Order effective Jan. 1, 1980]
