809.41 Note
Judicial Council Committee's Note, 1981: Rule 809.41 is amended to harmonize with ch. 192, Laws of 1979.
809.41 Annotation
Sub. (1) is amended to apply the procedure for requesting a 3-judge panel for appeals to other proceedings in the types of case specified in s. 752.31 (2). The rule is also amended to require that if the motion for 3-judge panel is in a case in which the state is a party the motion must be served upon the attorney general as well as all persons of record. If the district attorney files the motion for 3-judge panel, the district attorney must serve the motion on the attorney general. The attorney general is given 7 days to respond to the motion.
809.41 Annotation
The rule is further amended to require that the motion for 3-judge panel be filed with the copy of the notice of appeal required to be sent to the clerk of the court of appeals under Rule 809.10 (1) (a) and not with the original notice of appeal filed with the clerk of the circuit court.
809.41 Annotation
Subs. (2) and (3) are amended to clarify that their provisions may apply to both an appeal and a petition requesting the exercise of supervisory jurisdiction or original jurisdiction to issue a prerogative writ.
809.41 Annotation
Section 752.31, as amended by ch. 192, Laws of 1979, provides for a hearing in the county of origin for appeals but not for other proceedings such as a petition for supervisory writ or original jurisdiction prerogative writ. Sub. (4) is created to set out in a separate subsection of Rule 809.41 the procedure to request that an appeal be heard in the county where a case or action originated as authorized under sub. 752.31 (3). The creation of this separate subsection makes no substantive change in the prior procedure that was contained in Rule 809.41 (1). The rule requires that the motion for hearing in county of origin be filed with the copy of the notice of appeal required to be sent to the clerk of the court of appeals under Rule 809.10 (1) (a).
809.41 Annotation
Rule 809.41 is also amended to clarify that the appeal or petition is decided rather than heard, as oral argument may not occur in all matters filed in the court of appeals. [Re Order effective Jan. 1, 1982]
809.42
809.42
Rule (Waiver of oral argument). The appellant and respondent in an appeal under
s. 752.31 (2) may waive oral argument, subject to approval of the court.
809.42 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979).
809.42 Note
Judicial Council Committee's Note, 1979: This rule is amended to delete language authorizing an appellant and respondent to waive the filing of briefs in an appeal to the Court of Appeals. The Court of Appeals as a consistent policy does not allow the waiving of filing of briefs. The rule is brought into conformity with that policy. [Re Order effective Jan. 1, 1980]
809.43
809.43
Rule (Number of briefs). 809.43(1)
(1) A person who files a brief or appendix shall file 8 copies with the court, or such other number as the court directs, and serve 3 copies on each party.
809.43(2)
(2) A person who is found indigent under
s. 814.29 and files a brief or appendix shall file the original and 2 copies with the court and serve one copy on each party.
809.43 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 164 Wis. 2d xxix (1991).
DISCRETIONARY JURISDICTION PROCEDURE IN COURT OF APPEALS
809.50
809.50
Rule (Appeal from judgment or order not appealable as of right). 809.50(1)
(1) A person shall seek leave of the court to appeal a judgment or order not appealable as of right under
s. 808.03 (1) by filing within 10 days of the entry of the judgment or order a petition and supporting memorandum, if any. The petition and memorandum combined may not exceed 35 pages if a monospaced font is used or 8,000 words if a proportional serif font is used. The petition shall contain:
809.50(1)(a)
(a) A statement of the issues presented by the controversy;
809.50(1)(b)
(b) A statement of the facts necessary to an understanding of the issues;
809.50(1)(c)
(c) A statement showing that review of the judgment or order immediately rather than on an appeal from the final judgment in the case or proceeding will materially advance the termination of the litigation or clarify further proceedings therein, protect a party from substantial or irreparable injury, or clarify an issue of general importance in the administration of justice; and
809.50(1)(d)
(d) A copy of the judgment or order sought to be reviewed.
809.50(2)
(2) An opposing party in the trial court shall file a response with supporting memorandum, if any, within 10 days of the service of the petition. The response and memorandum combined may not exceed 35 pages if a monospaced font is used or 8,000 words if a proportional serif font is used. Costs and fees may be awarded against any party in a petition for leave to appeal proceeding.
809.50(3)
(3) If the court grants leave to appeal, the procedures for appeals from final judgments are applicable to further proceedings in the appeal, except that the entry of the order granting leave to appeal has the effect of the filing of the notice of appeal.
809.50(4)
(4) A person filing a petition under this section shall append to the petition a statement identifying whether the petition is produced with a monospaced font or with a proportional serif font. If produced with a proportional serif font, the person shall set forth the word count of the petition.
809.50 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 151 Wis. 2d xvii (1989); Sup. Ct. Order, 164 Wis. 2d xxix (1991); Sup. Ct. Order, 171 Wis. 2d xxxv (1992); Sup. Ct. Order No.
93-20, 179 Wis. 2d xxv.
809.50 Note
Judicial Council Committee's Note, 1978: Section 808.03 (1) makes only final judgments and final orders appealable as of right. All other judgments and orders are appealable only in the discretion of the court. This section provides the procedure for asking the court to permit the appeal of a nonfinal order. The issue of whether the court should hear the appeal is presented to the court by petition with both parties given the opportunity of submitting memoranda on the question. The standards on which nonfinal judgments or orders should be reviewed immediately are set forth in s. 808.03 (2) and are taken from the American Bar Association's Standards of Judicial Administration, Standards Relating to Appellate Courts, s. 3.12 (b). [Re Order effective July 1, 1978]
809.50 Note
Judicial Council Committee's Note, 1979: Sub. (1) (c) is amended to conform with 808.03 (2) (b), which sets out the standards created by the Wisconsin Legislature for appeals to the Court of Appeals by permission. A drafting error in the original preparation of chapter 809 replaced the word "or" found in 808.03 (2) (b) with the word "and", which results in a party having to show in a petition to the Court of Appeals for the court to assume discretionary jurisdiction that granting such a petition will protect a party from both substantial "and" irreparable injury rather than meeting just one of the 2 criteria, as was the intention of the Wisconsin Legislature. [Re Order effective Jan. 1, 1980]
809.50 Annotation
Once leave to appeal is granted, a cross-appeal from the same interlocutory order or judgment in the action requires a petition for leave to appeal. Fedders v. American Family Mutual Insurance Co.
230 Wis. 2d 577,
601 N.W.2d 861 (Ct. App. 1999).
809.50 Annotation
Interlocutory Appeals in Wisconsin. Towers, Arnold, Tess-Mattner & Levenson. Wis. Law. July 1993.
809.51
809.51
Rule (Supervisory writ and original jurisdiction to issue prerogative writ). 809.51(1)
(1) A person may request the court to exercise its supervisory jurisdiction or its original jurisdiction to issue a prerogative writ over a court and the presiding judge, or other person or body, by filing a petition and supporting memorandum. The petition and memorandum combined may not exceed 35 pages if a monospaced font is used or 8,000 words if a proportional serif font is used. The petitioner shall name as respondents the court and judge, or other person or body, and all other parties in the action or proceeding. The petition shall contain:
809.51(1)(a)
(a) A statement of the issues presented by the controversy;
809.51(1)(b)
(b) A statement of the facts necessary to an understanding of the issues;
809.51(1)(d)
(d) The reasons why the court should take jurisdiction.
809.51(2)
(2) The court may deny the petition ex parte or may order the respondents to file a response with a supporting memorandum, if any, and may order oral argument on the merits of the petition. The response and memorandum combined may not exceed 35 pages if a monospaced font is used or 8,000 words if a proportional serif font is used. The respondents shall respond with supporting memorandum within 10 days of service of the order. A respondent may file a letter stating that he or she does not intend to file a response, but the petition is not thereby admitted.
809.51(3)
(3) The court, upon a consideration of the petition, responses, supporting memoranda and argument, may grant or deny the petition or order such additional proceedings as it considers appropriate. Costs and fees may be awarded against any party in a writ proceeding.
809.51(4)
(4) A person filing a petition under this section shall append to the petition a statement identifying whether the petition is produced with a monospaced font or with a proportional serif font. If produced with a proportional serif font, the person shall set forth the word count of the petition.
809.51 History
History: Sup. Ct. Order, 83 Wis. 2d xiii; Sup. Ct. Order, 104 Wis. 2d xi (1978); Sup. Ct. Order, 151 Wis. 2d xix (1981); Sup. Ct. Order, 164 Wis. 2d xxix (1991); Sup. Ct. Order, 171 Wis. 2d xxxv (1992); Sup. Ct. Order No.
93-20, 179 Wis. 2d xxv.
809.51 Note
Judicial Council Committee's Note, 1981: Sub. (1) is amended to reflect the procedure for issuance of a prerogative writ currently followed by the court of appeals and to alert attorneys to the correct procedure to be followed. Rule 809.51 governs the procedures for seeking a petition for supervisory writ or original jurisdiction prerogative writ in the court of appeals. [Re Order effective Jan. 1, 1982]
809.51 Annotation
The Court of Appeals abused its discretion by ordering oral argument one day after the petition for a writ was filed and served. State ex rel. Breier v. Milwaukee County Cir. Ct.
91 Wis. 2d 833,
284 N.W.2d 102 (1979).
809.51 Annotation
The Court of Appeals does not have jurisdiction to entertain original actions unrelated to its supervisory or appellate authority over circuit courts. State ex rel. Swan v. Elections Bd.,
133 Wis. 2d 87,
394 N.W.2d 732 (1986).
809.52
809.52
Rule (Temporary relief). A petitioner may request in a petition filed under
s. 809.50 or
809.51 that the court grant temporary relief pending disposition of the petition. The court or a judge of the court may grant temporary relief upon the terms and conditions it considers appropriate.
809.52 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1981 c. 390 s.
252.
809.52 Note
Judicial Council Committee's Note, 1978: Rules 809.51 to 809.52 incorporate into the rules for the first time the procedures to be followed when the court is asked to exercise its supervisory jurisdiction. For an excellent discussion of original and supervisory jurisdiction of the Supreme Court and the distinction between them see the opinion by Justice Wickhem in Petition of Heil, 230 Wis. 428, 284 N.W. 42 (1939). To a large degree the procedures specified in 201 Wis. 123, 229 N.W. 643 (1930) are followed, but some of the features of Rule 21, FRAP, are included.
809.52 Annotation
There are a number of changes, however, from prior procedures. The parties in the action or proceeding in the trial court must be made respondents in the Court of Appeals because they in most cases are the real parties in interest. Usually the judge whose order is being challenged has no direct interest in the outcome and should not be forced to appear but may, of course, do so. The Attorney General must also be served in certain cases such as declaratory judgments involving the constitutionality of a statute or arising under Chapter 227, the administrative procedure act.
809.52 Annotation
The petition must be filed with the clerk rather than being submitted ex parte to a judge of the court. By virtue of the requirement that the petition be filed, it must previously have been served on opposing parties as required by s. 809.80. The initial action of the court will be to direct the respondents to answer the petition rather than to issue an order to show cause why the relief requested should not be granted. [Re Order effective July 1, 1978]
APPELLATE PROCEDURE IN SUPREME COURT
809.60
809.60
Rule (Petition to bypass). 809.60(1)
(1) A party may file with the supreme court a petition to bypass the court of appeals pursuant to
s. 808.05 no later than 10 days following the filing of the respondent's brief under
s. 809.19 or response. The petition must include a statement of reasons for bypassing the court of appeals.
809.60(2)
(2) An opposing party may file a response to the petition within 10 days of the service of the petition.
809.60(3)
(3) The filing of the petition stays the court of appeals from taking under submission the appeal or other proceeding.
809.60(4)
(4) The supreme court may grant the petition upon such conditions as it considers appropriate.
809.60(5)
(5) Upon the denial of the petition by the supreme court the appeal or other proceeding in the court of appeals continues as though the petition had never been filed.
809.60 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981).
809.60 Note
Judicial Council Committee's Note, 1981: The amendment to sub. (1) establishes time periods for filing a bypass petition to discourage use of the petition for dilatory purposes. [Re Order effective Jan. 1, 1982]
809.61
809.61
Rule (Bypass by certification of court of appeals or upon motion of supreme court). The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court's own motion. The supreme court may refuse to take jurisdiction of an appeal or other proceeding certified to it by the court of appeals.
809.61 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
809.61 Annotation
The Supreme Court's denial of certification has no precedential value on the merits of case. State v. Shillcutt,
119 Wis. 2d 788,
350 N.W.2d 686 (1984).
809.61 Annotation
Discretionary review by the Wisconsin supreme court. Pokrass, WBB March, 1985.
809.62
809.62
Rule (Petition for review). 809.62(1)
(1) A party may file with the supreme court a petition for review of an adverse decision of the court of appeals pursuant to
s. 808.10 within 30 days of the date of the decision of the court of appeals. Supreme court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. The following, while neither controlling nor fully measuring the court's discretion, indicate criteria that will be considered:
809.62(1)(a)
(a) A real and significant question of federal or state constitutional law is presented.
809.62(1)(b)
(b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.
809.62(1)(c)
(c) A decision by the supreme court will help develop, clarify or harmonize the law, and
809.62(1)(c)1.
1. The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or
809.62(1)(c)2.
2. The question presented is a novel one, the resolution of which will have statewide impact; or
809.62(1)(c)3.
3. The question presented is not factual in nature but rather is a question of law of the type that is likely to recur unless resolved by the supreme court.
809.62(1)(d)
(d) The court of appeals' decision is in conflict with controlling opinions of the United States Supreme Court or the supreme court or other court of appeals' decisions.
809.62(1)(e)
(e) The court of appeals' decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination.
809.62(2)(a)
(a) A statement of the issues presented for review, the method or manner of raising the issues in the court of appeals and how the court of appeals decided the issues.
809.62(2)(c)
(c) A concise statement of the criteria of
sub. (1) relied upon to support the petition, or in the absence of any of the criteria, a concise statement of other substantial and compelling reasons for review.
809.62(2)(d)
(d) A statement of the case containing a description of the nature of the case; the procedural status of the case leading up to the review; the dispositions in the trial court and court of appeals; and a statement of those facts not included in the opinion of the court of appeals relevant to the issues presented for review, with appropriate references to the record.
809.62(2)(e)
(e) An argument amplifying the reasons relied on to support the petition, arranged in the order of the statement of issues presented. All contentions in support of the petition must be set forth in the petition. A memorandum in support of the petition is not permitted.
809.62(2)(f)
(f) An appendix containing, in the following order:
809.62(2)(f)2.
2. Judgment, orders, findings of fact, conclusions of law and memorandum decisions of the circuit court and administrative agencies necessary for an understanding of the petition.
809.62(2)(f)3.
3. Any other portions of the record necessary for an understanding of the petition.
809.62(2m)
(2m) Subsection (2) does not apply to a petition for review of an appeal that is governed by
s. 809.105. A petition governed by that section shall comply with
s. 809.105 (11).
809.62(3)
(3) Except as provided in
s. 809.32 (4), an opposing party may file a response to the petition within 10 days of the service of the petition.
809.62(4)
(4) The petition and response, if any, shall conform to
s. 809.19 (8) (b) and
(d) as to form and certification and shall be as short as possible but not exceed 35 pages in length if a monospaced font is used or 8,000 words if a proportional serif font is used, exclusive of appendix.
809.62(5)
(5) Except as provided in
s. 809.24, the filing of the petition stays further proceedings in the court of appeals.
809.62(6)
(6) The supreme court may grant the petition upon such conditions as it considers appropriate, including the filing of additional briefs. If the petition is granted, the petitioner cannot raise or argue issues not set forth in the petition unless ordered otherwise by the supreme court. The supreme court may limit the issues to be considered on review.
809.62(7)
(7) A party who seeks a modification of an adverse decision of the court of appeals may file a petition for cross-review within the period for filing a petition for review with the supreme court, or 30 days after the filing of a petition for review by another party, whichever is later. A party seeking cross-review has the same rights and obligations as a party seeking review under
ch. 809.
809.62 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);
1991 a. 263; Sup. Ct. Order No.
93-20, 179 Wis. 2d xxv;
1993 a. 395.
