809.80 Rule (Filing and service of documents by traditional methods). (1) FILING BY TRADITIONAL METHODS. A person who is not an electronic filing user, as defined in s. 809.01 (33), shall file a paper copy of any document required to be filed by these rules with the clerk of the court unless a different place of filing is expressly required or permitted by statute or rule. The clerk of the court is located at 110 E. Main Street, Madison, Wisconsin 53703. The mailing address for the clerk of the supreme court and the court of appeals is P.O. Box 1688, Madison, Wisconsin 53701-1688. (2) SERVICE BY TRADITIONAL METHODS. (a) In this subsection, “service by traditional methods” means service in the manner provided in s. 801.14 (1), (2), (2m), and (4) of any document required or authorized under these rules to be filed in a trial or appellate court. (bm) A party initiating a proceeding under s. 809.51, 809.70 or 809.71 shall serve a petition and memorandum on all parties by traditional methods. (c) Except as provided in par. (bm), a paper party may initiate a proceeding in the appellate courts without serving electronic filing users by traditional methods. The clerk of the circuit or appellate court shall promptly enter filed documents into the electronic filing system and generate a notice of docketing. Service on electronic filing users shall be as provided in s. 809.10, 809.11, 809.14, 809.32, 809.50, 809.60, or 809.62. (d) A paper party may file subsequent documents in the appellate courts without serving electronic filing users by traditional methods. The clerk of the circuit or appellate court shall image the documents and promptly enter the documents into the electronic filing system. The notice of activity generated by the entry shall constitute service on the electronic filing users in the case as provided in ss. 801.18 (6) (d) and 809.801 (6) (d). (e) Paper parties shall be served by traditional methods. Paper parties shall serve other paper parties by traditional methods. (3) TIME OF FILING BY TRADITIONAL METHODS. (a) All filings — general rule. Except as provided in pars. (b) to (e), filing by traditional methods is not timely unless the clerk receives the paper documents within the time fixed for filing. Filing may be accomplished by hand delivery, mail, or by courier. Filing by facsimile is permitted only as set forth in s. 801.16 (2) (a) to (f) and the rules and directives governing facsimile filing in the court of appeals and supreme court. Documents completing transmission after 11:59 p.m. central time are considered filed the next business day the clerk’s office is open. (b) Brief or appendix — general rule. Except as provided in par. (c), a brief or appendix is timely filed if, on or before the last day of the time fixed for filing, it is correctly addressed and: 1. Deposited in the United States mail for delivery to the
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clerk by first-class mail, or other class of mail that is at least as expeditious, postage pre-paid; or 2. Delivered to a 3rd-party commercial carrier for delivery to the clerk within 3 calendar days. (c) Pro se brief or appendix from person confined in institution — special rule. A pro se brief or appendix from a person confined in an institution is timely filed if the brief or appendix is correctly addressed and delivered to the proper institution authorities for mailing on or before the last day of the time fixed for filing. A confined person who mails a brief or appendix under this subsection shall also file a certification or affidavit setting forth the date on which the document was delivered to the proper institution authorities for mailing. (d) Petition for review — general rule. Except as provided in par. (e), a petition for review is timely filed only if the clerk actually receives the petition within the time fixed for filing. (e) Pro se petition for review from person confined in institution — special rule. The 30-day time limit for the clerk’s receipt of a pro se petition for review filed by a person confined in an institution is tolled on the date that the confined person delivers a correctly addressed petition to the proper institution authorities for mailing. The confined person shall also file a certification or affidavit setting forth the date on which the petition was delivered to the proper institution authorities for mailing. (4) PROOF OF FILING DATE FOR BRIEF OR APPENDIX FILED BY TRADITIONAL METHODS. (a) When a brief or appendix is filed by mail or commercial carrier in accordance with s. 809.80 (3) (b), the person filing the document shall include a certification or affidavit setting forth the date and manner by which the document was mailed or delivered to a 3rd-party commercial carrier. (b) If a certification or affidavit is included, the clerk’s office shall consider the brief or appendix filed on the date of mailing or delivery set forth in the certification or affidavit. If no certification or affidavit is included, the date of filing shall be the date on which the brief or appendix is received by the clerk’s office. (c) The date shown on a postage meter does not establish that the document was mailed on that date. (5) CLERK REVIEW. The clerk may review a document for compliance with rule requirements relating to form, including caption, format, length, and confidentiality, to determine if the electronic document should be accepted for filing. If the clerk rejects the document following review, the filer shall receive notification of the rejection. The filer may be required to resubmit the document. (6) PRINTING SPECIFICATIONS. When paper copies of briefs or appendices in cases are required to be filed or served, the briefs or appendices shall be printed, typed, duplicated or reproduced by a process that produces a clear, black image of the text on white paper, in conformity with this chapter. History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390 s. 252; Sup. Ct. Order, 130 Wis. 2d xi (1986); 1989 a. 31; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01, 2002 WI 120, 255 Wis. 2d xiii; 2005 a. 253; Sup. Ct. Order No. 08-15 and Sup. Ct. Order No. 08-18, 2009 WI 4, 311 Wis. 2d xxix; Sup. Ct. Order No. 13-10, 2014 WI 45, 354 Wis. 2d xliii; Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii; Sup. Ct. Order No. 14-03A, 2016 WI 80, 370 Wis. 2d xxxiii; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii. Judicial Council Committee’s Note, 1978: The prior requirement of an affidavit of service is eliminated. The provision of the Rules of Civil Procedure that the filing of a paper is a certification that the paper has been served is adopted. [Re Order effective July 1, 1978] Judicial Council Note, 1986: Sub. (2) (b) does not change the existing service rules; it is intended to consolidate and clarify the procedure specified by ss. 59.47 (7), 165.25 (1) and 752.31 (2) and (3). [Re Order effective July 1, 1986] Judicial Council Note, 2001: Subsection (1) was amended to provide the correct address of the clerk of the supreme court and court of appeals. [Re Order No. 00-02 effective July 1, 2001] Judicial Council Note, 2002: Subsections (3) through (4) are new, and are taken largely from the Federal Rules of Appellate Procedure, Rule 25. Under the former rules, a brief was not filed until the clerk physically received it, regardless of when the brief may have been mailed. Because a party outside the Madison area had to allow time for postal or courier delivery, briefing periods were often adversely af-
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fected merely to ensure that a brief was actually received by the clerk before the expiration of the filing deadline. Subsection (3) (a) retains the general rule that a document is not filed until it is received by the clerk. Filing may be accomplished in person, by mail, or by courier or common carrier. Electronic filing of papers, other than filing by facsimile, is not permitted unless otherwise ordered by the supreme court. See s. 801.16 (2) addressing rules governing facsimile filing. The supreme court and the court of appeals have adopted local rules governing facsimile filing. However, sub. (3) (b) creates a mailbox rule for briefs and appendices only. For briefs and appendices, filing will be considered timely if, on or before the deadline, the brief or appendix is correctly addressed and either: (a) deposited in the United States mail for delivery by first-class mail, or other class of mail at least as expeditious, postage pre-paid, or (b) delivered to a commercial delivery service for delivery within 3 calendar days. When a brief or appendix is mailed or sent by commercial courier, subsection (4) requires that the party also file a certification or affidavit of mailing stating the date and manner of mailing or delivery. Subsection (3) (c) addresses pro se briefs and appendices filed by confined persons. For confined persons, a brief or appendix will be timely filed if, on or before the deadline, the brief or appendix is correctly addressed and delivered to the proper institution authorities for mailing. In order for the brief or appendix to be timely filed under sub. (3) (c), a certification or affidavit must be filed stating the date on which the brief or appendix was delivered to the proper institution authorities for mailing. The important point is that the pro se confined person must follow the institution rules or practices as to outgoing mail — whether they require placing mail in the hands of certain institution authorities, depositing mail in a designated receptacle, or some other procedure. See State ex rel. Nichols v. Litscher, 2001 WI 119 ¶ 32 n. 6, 247 Wis. 2d 1013, 1028 n. 6, 635 N.W.2d 292. Subsection (3) (d) reiterates the long-standing rule that a petition for review filed with the clerk of the supreme court must actually be received by the clerk on or before the last day of the filing period. The time limit for filing a petition for review cannot be extended. The timely filing of a petition for review is necessary to invoke the supreme court’s appellate jurisdiction. See First Wis. Nat’l Bank of Madison v. Nicholaou, 87 Wis. 2d 360, 274 N.W.2d 704 (1979). The mailbox rule for briefs and appendices created in sub. (3) (b) does not apply to the filing of a petition for review under s. 809.62. Subsection (3) (e) expands the coverage of the rule tolling the time limit for the clerk’s receipt of a pro se petition for review from a prisoner on the date the prisoner delivers a correctly addressed petition to the proper prison authorities, as established in State ex rel. Nichols v. Litscher, supra. to include petitions for review from all pro se confined persons. Subsection (3) (e) also adds a requirement for filing of a certification or affidavit setting forth the date on which the petition for review was delivered to the proper institution authorities for mailing. The important point is that in order to trigger tolling, the pro se confined person must follow the institution rules or practices as to outgoing mail — whether they require placing mail in the hands of certain institution authorities, depositing mail in a designated receptacle, or some other procedure. See State ex rel. Nichols v. Litscher, supra. [Re Order No. 02-01 effective January 1, 2003] To avoid potential delay, address all types of mail to: Clerk of the Court, Supreme Court of Wisconsin, P. O. Box 1688, Madison, WI 53701. Gunderson v. State, 106 Wis. 2d 611, 318 N.W.2d 779 (1982). NOTE: Sup. Ct. Order No. 14-03 states that “the Comments to the statutes and to the supreme court rules created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.” Comment, 2016: Subd. (3) (a) is amended to maintain the time for filing by facsimile in the appellate courts as the regular business hours of the clerk of the supreme court and court of appeals. NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.” Comment, 2021: Section 809.80 adds the term “traditional methods” to refer to forms of filing and service such as hand-delivery and mail, describes how paper parties may file their documents, and outlines the standards that paper briefs must meet for format, printing, and proof of mailing. This is distinguished from electronic filing and service, which are addressed in s. 809.801. Sub. (2) does not require a paper party to provide service of a filed document on an electronic party. Because the clerk will be scanning all paper documents submitted by paper parties, electronic filing users will automatically receive notification of new paper documents without the need for traditional service. The current provision regarding service on the attorney general in certain cases has been moved to s. 809.802. Under sub. (3), documents faxed by 11:59 pm are considered filed the same day. This gives paper parties the same filing hours as electronic parties. The appellate courts place a number of restrictions on filing by fax with respect to length, type of document, and payment of applicable fees. Persons wishing to file by fax should consult the clerk’s office for guidance. Since 2009, the appellate clerk has reviewed electronic briefs to make sure that rule requirements relating to form have been met. Under sub. (5), the clerk’s review includes review of all filed documents, both paper and electronic. The same review is applied to electronic documents under s. 809.801 (4) (b).
809.801 Rule (Appellate electronic filing). (1) DEFINITIONS. The definitions in s. 809.01 apply in this section. (2) EFFECTIVE DATE; APPLICABILITY. (a) At the direction of the supreme court, the director shall implement an electronic filing system for the Wisconsin supreme court and court of appeals. The requirements of this section shall govern the electronic filing
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of documents in all types of actions and proceedings in the appellate courts. (b) At the direction of the supreme court, mandatory use of the electronic filing system shall be phased in according to a schedule set by the director until the system has been fully implemented. Information about the transition schedule shall be made readily available to the public in advance of its application. (c) Subject to the schedule in par. (b), mandatory users shall be required to use the appellate court electronic filing system for all new filings covered by the schedule. Electronic filing shall be required for all new actions and proceedings brought in the court of appeals and the supreme court, and for all new documents submitted in previously filed cases, except as otherwise provided in this section. (e) Electronic filing is limited to methods specifically approved by the director. The director may enter into an agreement with any state agency to allow electronic filing through a custom data exchange between the court case management system and the agency’s automated information system. Parties using a custom data exchange are considered mandatory users and are subject to the requirements of this section. (f) The procedures in this section shall be interpreted in a manner consistent with existing procedures. This section is not intended to limit the director’s approval of new technologies that accomplish the same functions. (g) All judicial officers, the clerk of court, and all court staff shall cooperate and assist with the implementation of electronic filing. (h) This section does not apply to documents required by law to be filed with court officials that are not filed in an action before the court. These documents may be filed by traditional methods unless otherwise required. (k) The procedures under this section are intended to be consistent with the procedures governing electronic filing and service in the circuit courts under s. 801.18. The circuit and appellate court electronic filing and service rules shall be interpreted consistently to the extent practicable. (3) REGISTRATION REQUIREMENTS. (a) The following individuals shall register for access to the electronic filing system prior to filing documents: 1. Licensed Wisconsin attorneys. 2. Attorneys appearing under SCR 10.03 (4). 3. High-volume filing agents. (b) Parties who are not subject to par. (a) may voluntarily register to use the electronic filing system. (c) Except as otherwise provided, a party not subject to par. (a) who does not choose to participate in the electronic filing system under par. (b) shall file, serve, and receive paper documents by traditional methods. (d) All users shall register through the electronic filing system by executing a user agreement governing the system’s terms of use. To register, users must have the capability to produce, file, and receive electronic documents meeting the technical requirements of the electronic filing system. The electronic filing system shall make information on the technical requirements for filing readily available. By registering, users agree to electronically file all documents to the extent the electronic filing system can accept them. Users shall promptly provide notice through the electronic filing system of any change in the information provided for registration. (e) Upon completion of a properly executed user agreement under par. (d), the electronic filing system shall provide the user with a confidential, secure authentication procedure for access to the electronic filing system. This authentication procedure shall
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be used only by that user and by any agents or employees that the user authorizes. The same authentication procedure shall be used for all cases on which the user is an attorney or a party. The electronic filing system may reset authentication procedures as needed for administrative and security purposes. Upon learning that the confidentiality of the authentication procedure has been inadvertently or improperly disclosed, the user shall immediately report that fact through the electronic filing system. (f) After registering to use the electronic filing system, a user shall also opt in as an attorney or party on any case in which the user intends to participate. Users shall promptly opt in or out on each case upon beginning or ending appearance as an attorney or as a party. Filing agents appearing under par. (a) or (b) shall promptly opt in or out upon any change in the identity of a filing agent. Mandatory users who do not opt in on a case will not receive notices of activity or service of documents. (g) Attorneys appearing under SCR 10.03 (4) shall register following court approval of a motion to appear pro hac vice. (i) Voluntary users who wish to opt out of a particular case shall use the “opt out” feature of the electronic filing system or notify the clerk of court. The electronic filing system shall indicate that traditional methods must be used for this party for future filings and service. (j) The electronic filing system may provide a method for filing documents by individuals who are not parties to the case. It may also provide a method for professionals and agencies associated with the case to receive information and file reports. (4) TIME AND EFFECT OF ELECTRONIC FILING. (a) The electronic filing system is an agent of the appellate courts for purposes of filing, receipt, service, and retrieval of electronic documents. The electronic filing system shall receive electronic filings 24 hours per day except when undergoing maintenance or repair. (am) A document is considered filed on a particular day if the submission is completed by 11:59 p.m. central time, as recorded by the electronic filing system, so long as it is subsequently accepted by the clerk of court upon review. Documents filed after 11:59 p.m. are considered filed the next day the clerk’s office is open. The expanded availability of time to file shall not affect the calculation of time under other statutes, rules, and court orders. The electronic filing system shall issue a confirmation that submission to the electronic filing system is complete. (b) When a document is submitted by a user to the electronic filing system, the electronic filing system shall transmit it to the appropriate clerk of court. The clerk may review documents for compliance with rule requirements relating to form, including caption, case number, format, length, and confidentiality, to determine if the documents should be accepted for filing. (c) If the clerk of court accepts a document for filing, it shall be considered filed with the court at the date and time of the original submission, as recorded by the electronic filing system. The electronic filing system shall issue a notice of activity to serve as proof of filing. When personal service or traditional service is not required, the notice of activity shall constitute service on the other users in the case. (cm) If the clerk rejects the document following review, the user shall receive notification of the rejection. The user may be required to resubmit the document. (5) COMMENCEMENT OF ACTION OR PROCEEDING; FILING OF INITIATING DOCUMENTS. (a) Original actions, writs, and other matters commenced in the appellate courts. A user seeking to initiate an action or proceeding in an appellate court under s. 757.85 (5), 809.51, 809.70, or 809.71 shall first register with the electronic filing system as provided in sub. (3). The user shall
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then file an initiating document in the appellate court and provide the additional information requested by the electronic filing system. At the written or oral request of the filer, the clerk of court may reject the document for filings made in error, if the request is made before the clerk of court has accepted the document. Initiating documents shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method. (b) Petitions for review and petitions to bypass. A user seeking review by the supreme court under s. 809.60 or 809.62 shall file an initiating document in the supreme court. At the written or oral request of the filer, the clerk may reject the document for filings made in error, if the request is made before the clerk has accepted the document. Service shall be as provided in s. 809.60 (1) (b) or s. 809.62 (1m) (a) 2. (c) Appeals from circuit court. A user seeking to initiate an appeal under s. 809.10, 809.103, 809.104, 809.105, 809.107, 809.109, 809.30, 809.32, or 809.40 shall file a notice of appeal in the circuit court case appealed from as provided in that section. The clerk of circuit court shall transmit the notice of appeal to the clerk of the court of appeals. The docketing statement, motions under s. 809.41 (1) or (4), and statement on transcript, where applicable, shall also be filed with the clerk of circuit court and transmitted to the clerk of the court of appeals. Service shall be as provided in s. 809.10 (1) (h). (d) Petitions for leave to appeal. A user seeking leave to appeal under s. 809.50 shall file a petition in the court of appeals and provide the additional information requested by the electronic filing system. At the written or oral request of the filer, the clerk of the court of appeals may reject the document for filings made in error, if the request is made before the clerk has accepted the document. Service shall be as provided in s. 809.50 (1m). (e) Motions prior to appeal. A user moving the court for an order or other relief under s. 809.14 (5) before a notice of appeal is filed shall file an initiating document in the court of appeals and provide the additional information requested by the electronic filing system. At the written or oral request of the filer, the clerk of the court of appeals may reject the document for filings made in error, if the request is made before the clerk has accepted the document. Service shall be as provided in s. 809.14 (5) (b). (f) Respondent to opt in. A mandatory user who represents a responding party shall register to use the electronic filing system as provided under sub. (3) (d). After registering to use the electronic filing system, the user shall opt in on the case as provided in sub. (3) (f). (6) FILING AND SERVICE OF SUBSEQUENT DOCUMENTS. (a) The electronic filing system shall generate a notice of activity to the other users in the case when documents other than initiating documents are filed. Users shall access filed documents through the appellate electronic filing system. For documents that do not require personal or traditional service, the notice of activity is valid and effective service on the other users and shall have the same effect as traditional service of a paper document. (b) If a document requires personal or traditional service, it shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method. (c) Paper parties shall be served by traditional methods. The electronic filing system shall indicate which parties are to be served electronically and which are to be served by traditional methods. (d) Paper parties shall file documents with the court by traditional methods. The clerk of court shall image the documents and enter the imaged documents into the electronic filing system promptly. The notice of activity generated by the entry shall con-
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stitute service on the users in the case. Paper parties shall serve other paper parties by traditional methods. (e) An electronic notification that cannot be successfully delivered to a user shall be returned to the clerk of court. If the clerk cannot contact the user to update the information, the user shall be treated as a paper party until the problem is corrected. (f) For cases that were originally filed by traditional methods, all of the following apply: 1. Subject to the schedule in sub. (2) (b), all mandatory users shall opt in on each case for which they continue to appear. Mandatory users who do not opt in on a case do not receive notices of activity or service of documents. 2. For all cases that are in open status at the time electronic filing is mandated, the clerk of court shall send a notice by traditional methods to each party who has not opted in stating that the case has been converted to electronic filing. Mandatory users shall promptly opt in on these cases unless the user informs the court that the user is no longer appearing on behalf of the party. 3. For all cases that were in closed status prior to the time electronic filing was mandated, no action is required until there is a subsequent filing or the court initiates further activity on the case, subject to all of the following: a. A mandatory user who wishes to file on a closed case shall opt in on the case and shall serve any paper parties by traditional methods. Any mandatory user so served shall promptly opt in on the case or shall notify the court that the user is no longer appearing on behalf of the party. b. A voluntary user who wishes to file electronically in a closed case shall opt in as a user on the case and shall serve any paper parties by traditional methods. Any mandatory user so served shall promptly opt in on the case or shall notify the court that the user is no longer appearing on behalf of the party. c. Service on a party who might be a voluntary user shall include a notice stating that the case has been converted to electronic filing and giving instructions for how to use the electronic filing system if the party chooses to do so. (7) PAYMENT OF FEES. (a) Users shall make payments due to the clerk of court by check or through the court electronic payment system, unless otherwise ordered by the court or unless arrangements are made with the clerk of court. The court electronic payment system shall deposit the fees due to the clerk of court in the clerk’s account. (b) A user may submit a petition or motion for waiver of costs and fees under s. 814.29 (1) or (1m) using a form provided by the court for that purpose. If a document is submitted with a petition or motion for waiver, it shall be considered filed with the court on the date and time of the original submission if the waiver is subsequently granted by the court or other arrangements for payment are made. (8) FORMAT AND CONTENT OF FILINGS. (a) The director shall make information about the technical requirements of the electronic filing system readily available to the public. Users are responsible for keeping up with these requirements and providing the necessary equipment, software, communication technology, and staff training. (b) Users shall provide any case management information needed to file documents. The electronic filing system shall reject a document for failure to include information in any one of the mandatory fields identified by the system. (c) Users shall format the appearance of all electronically filed documents in accordance with statutes and appellate court rules governing formatting of paper documents, including page limits. (d) The electronic filing system may set limits on the length or
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number of documents. Leave of court may be granted for traditional filing and service in appropriate cases. If a brief or appendix cannot be electronically filed as a single document due to the size limitations of the system, the user shall contact the clerk of court for assistance. (e) Electronically filed appendices, exhibits, and affidavits shall be filed in portable document format. All other electronically filed documents shall be filed in text-searchable portable document format. (f) Electronically filed documents may include bookmarks that allow the reader to navigate quickly within a document, such as from the table of contents to the corresponding sections of a brief or from the table of contents to the corresponding documents in an appendix. (g) Electronically filed documents may include hyperlinks that allow the reader to jump directly to another location in the document or to an external source of information, such as a published case or statute posted on the Internet. External hyperlinks shall be used only in accordance with security procedures set by the court. (h) Users shall format electronically filed documents to leave a blank space 2 inches by 2 inches square at the top right corner of the first page to accommodate the court file stamp. (9) OFFICIAL RECORD. (a) Electronically filed documents have the same force and effect as documents filed by traditional methods. The electronic version constitutes the official record. No paper copy of an electronically filed document shall be sent to the court. (b) The duties of the clerk of court under this chapter and all other statutes, court rules, and procedures may be fulfilled through proper management of electronic documents as provided in this section. The requirements of statutes and rules that refer to paper copies, originals, mailing, and other traditional methods may be satisfied by transmission of documents through the electronic filing system. (c) Subject to the schedule in sub. (2) (b), the clerk of court shall maintain the official court record only in electronic format for all cases commenced after that date. Documents filed by traditional methods shall be electronically imaged and made part of the official record. The clerk of court may discard the paper copy pursuant to SCR 72.03 (3). Any official court record containing electronically filed documents must meet the operational standards set by SCR 72.05 for electronic records. (d) If a document is filed in a case in closed status, the clerk of court shall file the document electronically and convert that case to electronic format within a reasonable time. If conversion of the case would be unusually burdensome, the clerk of court may maintain the record in paper format with the permission of the court. (e) The clerk of court shall make the public portions of the electronic record available for viewing at the clerk of court’s office. The clerk of court shall make nonpublic portions of the electronic record available for viewing by authorized persons. (f) The clerk of court may provide either paper or electronic copies of pages from the court record. The clerk of court shall charge the per-page fee set by s. 809.25 (2) for electronic court records. (g) Certified copies of an electronic record may be obtained from the clerk of court’s office by traditional methods, as provided by s. 889.08. The electronic system may also make available a process for electronic certification of the court record. The seal of the court may be applied electronically. No use of colored ink or an impressed seal is required. (h) Parties filing by traditional methods shall file a copy of any document and not the original paper document. The court
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may require the submitting party to produce the original paper document if authenticity of document is challenged. If the court inspects the original paper document, it shall be retained as an exhibit as provided in SCR 72.03 (4). (L) For documentary exhibits submitted directly to the supreme court or court of appeals, parties shall submit a copy of the exhibit and not the original. The clerk of court shall image each documentary exhibit and enter the imaged document into the court record. Copies of documentary exhibits so imaged may be discarded as provided in SCR 72.03 (3). If inspection of the original document is necessary to the court proceeding, the court may order that the original document be produced. Any original document so produced shall be retained as an exhibit as provided in SCR 72.03 (4). (m) When an action or proceeding requires a record to be submitted by a party directly to the court, the record shall be imaged and electronically submitted using a method provided by the electronic filing system. The electronic record shall be the official record in the action or proceeding. If inspection of an original document is necessary to the court proceeding, the court may order that the original document be produced. (11) NOTARIZATION AND OATHS. (a) Notaries public who hold valid appointments under ch. 140 may issue certificates of notarial acts for electronically filed documents as provided in this section. (b) Court officials authorized by law to perform notarial acts may do so by application of their electronic signatures provided through the electronic filing system. (c) Unless specifically required by statute or court rule, electronically filed documents are not required to be notarized. (d) Documents notarized by traditional methods may be filed through the electronic filing system if a handwritten signature and physical seal appear on the original document. The user shall submit an imaged copy of the notarized document to the electronic filing system, and the court shall maintain the imaged copy as the official court record. The court may require the submitting party to produce the original paper document if the authenticity of the notarization is in question. (f) The director, in his or her discretion, may approve the use of an electronic notary technology compatible with the existing electronic filing system. (12) SIGNATURES OF USERS. (a) To be considered electronically signed, a document must be submitted by or on behalf of a user through the electronic filing system. A document requiring the signature of a user shall bear either an electronic signature or a handwritten signature applied to a document before it is imaged. An electronic signature shall state “Electronically signed by” followed by the name of the signatory, and shall be placed where the person’s signature would otherwise appear. Either form of signature shall be treated as the user’s personal original signature for all purposes under the statutes and court rules. (b) An initiating document that is signed in compliance with par. (a) bears a sufficient signature under s. 802.05. (c) Each electronically filed document shall bear that person’s name, mailing address, electronic mail address, telephone number, and state bar number if applicable. Users shall notify the electronic filing system of any change in this information, consistent with sub. (3) (d). (d) An attorney may delegate the authority to submit documents to the electronic filing system to a person under the attorney’s supervision. Any document requiring the attorney’s signature is deemed to have been signed by the attorney if submitted to the electronic filing system and signed as provided in par. (a). Every attorney is responsible for all documents so submitted.
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(e) Every attorney is responsible for electronically filed documents to the same extent as for paper filings. Attorneys using the electronic filing system are subject to sanctions under s. 802.05 and contempt procedures under ch. 785, and are subject to discipline for a violation of any duty to the court under the supreme court rules. (f) Self-represented parties and filing agents under s. 799.06 are responsible for electronically filed documents to the same extent as for paper filings. Self-represented parties and filing agents using the electronic filing system are subject to sanctions under s. 802.05 and contempt procedures under ch. 785. (fm) An electronically filed certification required by this chapter may be signed by applying the user’s signature as provided in par. (a). (g) A stipulation will be considered signed by multiple persons if it bears the handwritten signatures of all signatories or if it bears the printed name of each signatory and contains a representation by the filing party that the filing party has consulted with the signatories and all have agreed to sign the document. This paragraph does not apply to the signature requirements of s. 809.107 (2) (bm) 6., (5) (a), and (6) (f), where a signature is required from the appellant or petitioner, other than the state, on whose behalf the document is filed. (h) For paper parties, every document requiring a signature shall be signed using a handwritten signature. If a document requiring a signature is filed by traditional methods, the filing party shall file a copy of that document and not the original paper document, as provided under sub. (9) (h). (i) Documents containing handwritten signatures of third parties, such as affidavits, may be filed through the electronic filing system if a handwritten signature appears on the original document. The user shall submit an imaged copy of the signed document to the electronic filing system, and the court shall maintain the imaged document as the official court record. The court may require the submitting party to produce the original paper document if validity of the signature is challenged. (j) The director, in his or her discretion, may approve the use of other signature technologies to the extent that they work with the existing electronic filing system. (13) SIGNATURES OF COURT OFFICIALS. (a) If the signature of a court official is required on a document, an electronic signature applied through the court case management system may be used. The electronic signature shall be treated as the court official’s personal original signature for all purposes under Wisconsin statutes and court rules. Where a handwritten signature would be located on a particular order, form, letter, or other document, the official’s printed name shall be inserted. (b) The electronic signature of a court official shall be used only by the official to whom it is assigned and by such delegates as the official may authorize. The court official is responsible for any use of his or her electronic signature by an authorized delegate. (c) A court official may delegate the use of his or her electronic signature to an authorized staff member pursuant to the security procedures of the court case management system. Upon learning that the confidentiality of the electronic signature has been inadvertently or improperly disclosed, the court official shall immediately report that fact to the consolidated court automation programs. Court officials shall safeguard the security of their electronic signatures and exercise care in delegation. (14) CONFIDENTIAL INFORMATION. (a) The confidentiality of an electronic record is the same as for the equivalent paper record. The electronic filing system may permit access to confidential information only to the extent provided by law. No person in possession of a confidential electronic record, or an electronic
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or paper copy thereof, may release the information to any other person except as provided by law. (b) Parties shall exercise care with respect to redaction of protected information, as defined in s. 801.19 (1), identification of confidential material, and sealing of filed documents. (c) If a document is confidential, it shall be identified as confidential by the submitting party when it is filed. The clerk of court is not required to review documents to determine if confidential information is contained within them. (d) If a user seeks court approval to seal a document, the user may electronically file the document under temporary seal pending court approval of the user’s motion to seal. (e) If the clerk notes that a document has been identified as confidential or sealed, the electronic filing system shall place a visible mark on the document to identify it as confidential or sealed. (f) An amicus party may, in the court’s discretion, be granted access to confidential, redacted, or sealed portions of the court record upon motion to the court and a showing of good cause. (15) TRANSCRIPTS. (a) A transcript filed in the circuit court shall be electronically transmitted to the clerk of the court of appeals when made part of the record on appeal. (b) The transcript of any proceeding originating in the court of appeals or supreme court shall be electronically filed by the court reporter in accordance with procedures developed by the director. The clerk shall note in the court record that the transcript has been prepared and filed with the court. (c) Arrangements for payment of the court reporter, access to the transcript, and service shall be as directed by the court. (d) Any notice to the clerk of the supreme court and court of appeals filed under s. 809.11 (7) (a) or 809.32 (5) or any motion filed under s. 809.11 (7) (c) shall be electronically filed. The court reporter shall serve paper parties by traditional methods. (e) A transcript, when filed under this section, becomes a part of the court file. The transcript shall be made available to the public in accordance with the statutes and rules governing court records and any court orders. (f) A court reporter may certify that the transcript is a verbatim transcript of the proceedings by applying the court reporter’s signature in the same manner as provided in sub. (12) (a) and then electronically filing the transcript. (16) TECHNICAL FAILURES. (a) A user whose filing is made untimely as a result of a technical failure may seek appropriate relief from the court as follows: 1. If the failure is caused by the court electronic filing system, a user may move the court for relief on the basis that the user attempted to file the document with the court in a timely manner by submitting it to the electronic filing system. The court may enter an order permitting the document to be deemed filed or served on the date and time the user first attempted to submit the document electronically or may grant other relief as appropriate. 2. If the failure is not caused by the court electronic filing system, the court may grant appropriate relief upon satisfactory proof of the cause. Users are responsible for timely filing of electronic documents to the same extent as filing of paper documents. (b) A motion for relief due to technical failure shall be made on the next day the office of the clerk of court is open. The document that the user attempted to file shall be filed separately and any fees due shall be paid at that time. (c) This subsection shall be liberally applied to avoid prejudice to any person using the electronic filing system in good faith. History: Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii; 2021 a. 240 s. 30; Sup. Ct. Order No. 23-05, 2024 WI 20, filed 5-2-24, eff. 7-1-24. NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes
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created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.” Comment, 2021: Although proposed s. 809.801 is new, the numbering reflects an effort to stay parallel with the section numbering of the circuit court eFiling rule, s. 801.18. Section 809.801 is built on the template of the circuit court electronic filing rule, s. 809.18, with respect to structure, language, and procedure. There are no major differences between the two systems with respect to how electronic filing works. Sub.(2) (k) provides that the two rules “shall be interpreted consistently to the extent practicable”. At the direction of the supreme court, subs. (2) (b) and (c) provide for the use of an implementation schedule to govern the availability of electronic filing according to the type of proceeding involved and the type of court. Sub. (3) (a) mandates that three types of filers participate in the electronic filing system. An exception for attorneys representing themselves was included in the circuit court electronic filing rule but is eliminated here. Experience has shown that electronic filing is straightforward to use, with minimal technical impediments and expense. Subs. (3) (d) and (f) require electronic filing users to promptly opt in and opt out from the cases where they are representing parties or participating as litigants. Users are required to keep their contact information up to date to receive electronic service. Under sub. (3) (j), persons filing documents in cases where they are not parties, such as amicus curiae, may register to use the electronic filing system and file a document. Sub. (4) (am) provides that filing occurs when the document is submitted to the electronic filing system as long as it is accepted by the clerk at a later time. Extending the filing day to 11:59 p.m. is consistent with the circuit court electronic filing rule and federal court electronic filing rules. This supersedes the decision in St. John’s Home v. Continental Casualty Co., 150 Wis. 2d 37, 441 N.W.2d 219 (1989), per curiam, requiring filing to occur only within the office hours of the clerk. This gives a user an extra few hours to file on the last day a document is due but does not otherwise affect the calculation of time. If a user submits a document or the court issues an order on a day when the clerk’s office is closed, it is considered filed on the next day the clerk’s office is open, except as provided by other statutes and rules, or by court order. Since 2009, the appellate clerk has reviewed electronic briefs to make sure that rule requirements relating to form have been met. Together with s. 809.80 (5), subd. (4) (b) provides that the clerk may review all types of documents, both paper and electronic. Sub. (4) (c) is consistent with s. 809.80 (2) (d), which provides that a document filed by a paper party will be served on the electronic users when the clerk scans and dockets the document and a notice of activity is generated. Sub. (5) addresses how the first document or group of documents should be filed in each type of appellate proceeding. Sub. (6) (a) provides that the electronic filing system now serves as the means of delivery between users for documents filed after the case is initiated. Electronic filing users will receive a notice of activity letting them know that a new document has been filed in the proceeding. Paper parties will continue to be served by traditional methods for both initiating and subsequent documents. Sub. (6) (e) provides that if an email to a party is returned as undeliverable, the clerk will attempt to locate the party and correct the problem. The other parties must serve that party by traditional methods in the meantime. Sub. (6) (f) outlines how mandatory electronic filing will be initiated on previously filed cases. The clerk will work with attorneys to opt in on their open cases and will provide voluntary users with instructions on how to participate in the electronic filing system if they choose. Sub. (8) (a) requires electronic filing users to keep their hardware, software, and staff training up to date with the minimum requirements set by the court. Under former s. 809.18 (12), the supreme court required that briefs, no-merit reports, and petitions for review be submitted in text-searchable portable document format (PDF). Sub. (8) (e) broadens this requirement to include most documents submitted to the court, including motions, writs and petitions. Appendices, exhibits, and affidavits must be submitted in portable document format but are not required to be text-searchable. Sub. (8) (g) provides for the permissive use of external hyperlinks to sources of information such as published cases and statutes posted on the Internet. Hyperlinks come with a small amount of risk for the introduction of malicious software into the electronic filing system and into law office case management systems. For that reason, hyperlinks may be used only in accordance with guidance posted by the court, and the court may limit the sites that users may link to. The use of hyperlinks is not required. Sub. (9) provides that appellate court case files going forward will be kept electronically. Mandatory electronic filing users are required to file all documents electronically, with only a few exceptions. The documents submitted by paper parties will be imaged and converted to electronic format by the clerk of court. Because any paper submitted will be discarded after it is imaged, parties should not submit original documents to the court. Sub. (12) (a) is amended to clarify the required format of an electronic signature. Handwritten signatures continue to be used despite the availability of electronic signatures and are permitted as long as the document is imaged and submitted through the electronic filing system. Either form of signature provides the level of accountability to client and court called for by the appellate rules. Compliance with this section is intended to satisfy the signature requirements of ss. 802.05 (1) and 809.19 (1) (h), as well as all other statutes and rules relating to court documents. Sub. (12) (fm) is added to permit the use of electronic signatures for certifying briefs, appendices, and no-merit reports as to length, confidentiality, and client counseling. Sub. (12) (g) responds to a recent legislative change requiring the signature of both counsel and parents on the notice of appeal in proceedings for termination of
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parental rights. A representation that all signatories have agreed to sign the document cannot be used in lieu of the parents’ signatures in this situation. Sub. (14) (b) refers to circuit court requirements regarding confidential, redacted, and sealed documents. Documents added to the circuit court record since 2016 should already be in compliance with ss. 801.19 to 809.21. Sub. (15) (a) notes that circuit court transcripts are generally not filed directly with the appellate court. Transcripts are electronically transmitted by the clerk of circuit court as part of the record on appeal. When transcripts are filed directly with the appellate court, sub. (15) (c) provides that arrangements for payment, copies and service shall be as directed by the court.
809.802 Rule (Service on the state in certain proceedings). (1) Any document required or authorized to be served on the state in appeals and other proceedings in felony cases in the court of appeals or supreme court shall be served on the attorney general unless the district attorney has been authorized under s. 978.05 (5) to represent the state. Any document required or authorized to be served on the state in appeals and other proceedings in misdemeanor cases decided by a single court of appeals judge under s. 752.31 (2) and (3) shall be served on the district attorney. Every petition for review of a decision of the court of appeals in a misdemeanor case shall be served on the attorney general. (2) Where service on the attorney general is required under sub. (1), the clerk of the court of appeals shall opt in the attorney general as an attorney for the state and provide the notice of docketing to the attorney general through the appellate electronic filing system. For the attorney general, receipt of the notice of docketing provides access to the proceeding and constitutes service of the initiating document and other documents filed with the initiating documents. History: Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii. NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.” Comment, 2021: Former s. 809.80 (2) is recreated as sub. (1). The requirement to serve the attorney general under this section applies to both traditional and electronic modes of service. Sub. (2) describes the mechanism the clerk will use to assure service on the attorney general in cases where the other electronic parties are served with initiating documents through the circuit court electronic filing system or when the attorney general did not participate in a proceeding before a petition for review was filed.
809.81 Rule (Form of papers). The format of a document filed in the court must conform to the following requirements unless expressly provided otherwise in these rules: (1) SIZE. Formatted to fit 8.5 by 11 inch paper. (3) STYLE. Produced using either a monospaced or a proportional serif font. If handwriting is used, the text must be legibly printed and not include cursive writing, except the person’s signature. (4) SPACING AND MARGINS. Double-spaced with a minimum of a 1.25-inch margin on the right and left sides, and a minimum of a 1-inch margin on the top and bottom. (5) PAGINATION. Paginated at the center of the bottom margin using Arabic numerals with sequential numbering starting at “1” on the first page. (6) APPEARANCE. Any process that produces a clear, black image on a white background. Carbon copies may not be filed. Imaged documents should be scanned at a resolution sufficient to ensure legibility. (7) BINDING. Pages must be secured together at the top left corner. (8) CONFIDENTIALITY. Every notice of appeal or other document that is filed in the court and that is required by law to be confidential shall refer to individuals only by one or more initials or other appropriate pseudonym or designation. (9) CAPTIONS. Except as provided in s. 809.81 (8) or when “petitioner” has been substituted for an individual’s name in the caption in an appeal from a domestic abuse protective order or harassment injunction, or when the clerk has given notice of a dif-
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ferent caption, the caption of any document shall include the full name of each party in the circuit court and shall designate each party so as to identify each party’s status in the circuit court and in the appellate court, if any. In the supreme court, “petitioner” shall be added to the designation of a party filing a petition for review. The designation of a party responding to a petition for review shall remain the same as in the court of appeals. History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); Sup. Ct. Order No. 93-18, 179 Wis. 2d xxi (1993); Sup. Ct. Order No. 93-20, 179 Wis. 2d xxv (1993); Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01, 2002 WI 120, 255 Wis. 2d xiii; Sup. Ct. Order No. 14-01, 2015 WI 21, filed 3-2-15, eff. 7-1-15; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii. Judicial Council Committee’s Note, 1978: The 8-1/2 x 11 letter size paper is adopted as the standard size for all papers to be filed in the Court of Appeals in place of using both 8-1/2 x 14 and 8-1/2 by 11. A standard size paper simplifies records management. There is a national trend away from legal size paper. [Re Order effective July 1, 1978] Judicial Council Committee’s Note, 1981: Sub. (2) is amended to clarify that an original must be filed with the 4 copies in the court of appeals or with the 8 copies in the supreme court. [Re Order effective Jan. 1, 1982] Judicial Council Note, 2001: Subsection (2) was amended to eliminate the distinction between “original” and “copy,” because current technology produces copies of quality as good as the original. Subsection (8) requires that only the first name and last initial be used in all documents in confidential cases. [Re Order No. 00-02 effective July 1, 2001] Judicial Council Note, 2002: Subsection (9) is created to clarify that the same caption should be used on all documents filed in an appellate case, and specifies that caption. Captions on pleadings and other documents filed pursuant to this rule are consistent with the current s. 809.19 (9) requirement governing captions on briefs. [Re Order No. 02-01 effective January 1, 2003]
809.82 Rule (Computation and enlargement of time). (1) COMPUTATION. In computing any period of time prescribed by these rules, the provisions of s. 801.15 (1) and (5) apply. (2) ENLARGEMENT OR REDUCTION OF TIME. (a) Except as provided in this subsection, the court upon its own motion or upon good cause shown by motion, may enlarge or reduce the time prescribed by these rules or court order for doing any act, or waive or permit an act to be done after the expiration of the prescribed time. (b) Notwithstanding par. (a), the time for filing a notice of appeal or cross-appeal of a final judgment or order, other than in an appeal under s. 809.107 or an appeal under s. 809.30 or 809.32, may not be enlarged. (c) The court may not enlarge the time prescribed for an appeal under s. 809.105 without the consent of the minor and her counsel. (e) Notwithstanding par. (a), the time for filing a motion for reconsideration under s. 809.24 may not be enlarged. History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390 s. 252; 1991 a. 263; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01, 2002 WI 120, 255 Wis. 2d xiii; 2005 a. 293; 2017 a. 258; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii. Judicial Council Committee’s Note, 1978: Sub. (1). The provisions of the Rules of Civil Procedure as to computation of time are adopted for appeals to avoid any problems resulting from a lack of uniformity. Sub. (2) continues the first sentence of former Rule 251.45. It eliminates the second sentence of that Rule permitting the attorneys by stipulation to extend the time for filing briefs if the extension does not interfere with the assignment of the case because this procedure interferes with the ability of the court to monitor cases pending before it and because it is not always certain when a case will be on an assignment. The Supreme Court considers that deadlines as to briefs and other actions in the court should have priority over all matters except previously scheduled trials in circuit and county courts and deadlines set by a federal court. Requests for extensions are not, consequently, looked upon with favor by the court. [Re Order effective July 1, 1978] Judicial Council Committee’s Note, 1981: Sub. (2) is amended to permit the court of appeals to extend the time for filing a notice of appeal or cross-appeal in appeals under Rules 809.30 and 809.40 (1), which cover criminal appeals and postconviction motions and appeals in ch. 48, 51 and 55 cases. When read with Rules 809.30 and 809.40 (1), the rule was previously ambiguous regarding extensions of time to file a notice of appeal or cross-appeal in ch. 48, 51 and 55 cases. The amendment clarifies the rules. Other than appeals under Rules 809.30 and 809.40 (1), the time for filing a notice of appeal or cross-appeal may not be extended. [Re Order effective Jan. 1, 1982] Judicial Council Note, 2001: Subsection (2) (d) was created to provide notice to the clerk of any motion affecting time limits. Subsection (2) (e) was created to facilitate computation of due dates on petitions for review. [Re Order No. 00-02 effective July 1, 2001]
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RULES OF APPELLATE PROCEDURE
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. Circuit Court, 91 Wis. 2d 833, 284 N.W.2d 102 (1979). The authority to extend the time for filing a notice of appeal under sub. (2) does not apply to appeals regarding terminations of parental rights under s. 809.107. Gloria A. v. State, 195 Wis. 2d 268, 536 N.W.2d 396 (Ct. App. 1995), 95-0315. A claim of ineffective assistance of appellate counsel must be brought by a petition for writ of habeas corpus. Utilizing sub. (2) as a substitute for habeas corpus, so as to avoid making a substantive determination that a defendant was denied the effective assistance of appellate counsel constitutes an erroneous exercise of discretion. State v. Evans, 2004 WI 84, 273 Wis. 2d 192, 682 N.W.2d 784, 02-1869. See also State ex rel. Santana v. Endicott, 2006 WI App 13, 288 Wis. 2d 707, 709 N.W.2d 515, 05-0332. It is unwise and unhelpful to replace the good cause standard for deciding extension motions under this section with an ineffective assistance of counsel analysis under Evans, 2004 WI 84, when deciding requests for extensions of time to file notices of intent to pursue postconviction relief. State v. Quackenbush, 2005 WI App 2, 278 Wis. 2d 611, 692 N.W.2d 340, 02-0489. The writ of habeas corpus may be used in the court of appeals to seek relief from a termination of parental rights (TPR) even though there is no restraint of liberty of the petitioner, when appellate counsel failed to appeal before the deadline. Under sub. (2) (b), the time for filing an appeal of a TPR may not be enlarged when the petition was filed by someone other than a representative of the public. If the court was not able to recognize the petitioner’s right to raise ineffectiveness of counsel, the petitioner will never have an appeal through no fault of his or her own. Amy W. v. David G., 2013 WI App 83, 348 Wis. 2d 593, 834 N.W.2d 432, 13-0731.
809.83 Rule (Penalties for delay or noncompliance with rules). (1) DELAY; EXTRA COSTS AND DAMAGES. (a) If the court finds that an appeal was taken for the purpose of delay, it may award any of the following: 1. Double costs. 2. A penalty in addition to interest not exceeding 10 percent on the amount of the judgment affirmed. 3. Damages occasioned by the delay. 4. Reasonable attorney fees. (b) A motion for costs, penalties, damages and 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. (2) NONCOMPLIANCE WITH RULES. Failure of a person to comply with a court order or with a requirement of these rules, other than the timely filing of a notice of appeal or cross-appeal, does not affect the jurisdiction of the court over the appeal but is grounds for dismissal of the appeal, summary reversal, striking of a paper, imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate. History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 151 Wis. 2d xvii (1989); 1995 a. 225; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii. Judicial Council Committee’s Note, 1978: Former ss. 251.22, 251.23, 251.51, 251.56, 251.57, 251.73, 251.75, 251.77, 251.81, 251.82, 251.85 and 251.89, providing for specific penalties for delay and for certain rule violations, are replaced. In the event of a rule violation, the court is authorized to take such action as it considers appropriate. If the court finds an appeal was taken for purposes of delay, it can impose one or more of the four types of penalties specified in sub. (1). [Re Order effective July 1, 1978] Judicial Council Note, 2001: Subsection (2) is changed to allow appellate courts to sanction parties who violate court orders. [Re Order No. 00-02 effective July 1, 2001] The untimely service of a petition filed under s. 808.10 does not affect jurisdiction, but the opposing party may move to dismiss under sub. (2). State v. Rhone, 94 Wis. 2d 682, 288 N.W.2d 862 (1980). Summary reversal of a dismissal order as a sanction under sub. (2) entitled the plaintiffs to a trial without consideration of the issue that resulted in the dismissal. State ex rel. Blackdeer v. Township of Levis, 176 Wis. 2d 252, 500 N.W.2d 339 (Ct. App. 1993). To dismiss an appeal under sub. (2), there must be demonstrated egregious conduct or bad faith on the party’s or attorney’s part. In certain cases attorney bad faith may be imputed to the party, but the attorney conduct should involve the same litigation. It was improper to consider an attorney’s repeated requests for time extensions in other cases in denying a motion and dismissing the appeal. State v. Smythe, 225 Wis. 2d 456, 592 N.W.2d 628 (1999), 97-3191. The court of appeals may not grant summary reversal of a circuit court order on appeal as a sanction without a finding of bad faith, egregious conduct, or a litigant’s abandonment of the appeal. Raz v. Brown, 2003 WI 29, 260 Wis. 2d 614, 660 N.W.2d 647, 01-2436.
809.84 Rule (Applicability of rules of civil procedure). An appeal to the court is governed by the rules of civil procedure as to all matters not covered by these rules unless the circum-
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stances of the appeal or the context of the rule of civil procedure requires a contrary result. History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
809.85 Rule (Continuation, appearance, substitution or withdrawal of counsel). (1) APPOINTED COUNSEL TO CONTINUE. An attorney appointed by a lower court in a case or proceeding appealed to the court shall continue to act in the same capacity in the court until the court relieves the attorney or as allowed under sub. (3), (4), or (5) (b). (2) NONADMITTED COUNSEL. (a) Counsel not admitted to practice law in Wisconsin but admitted pro hac vice in the circuit court case shall provide the clerk with a copy of the circuit court’s order admitting counsel pro hac vice and then may appear before the court in association with counsel admitted to practice law and in good standing in Wisconsin. Wisconsin counsel shall sign every document filed in the court and shall be present in person in all proceedings unless excused by the court. (b) Counsel not admitted to practice law in Wisconsin may move the court for pro hac vice admission and shall state by affidavit that counsel is admitted to practice law and is in good standing to practice law in another jurisdiction and that counsel has complied with SCR 10.03 (4). If the motion is granted, counsel may appear before the court in association with counsel admitted to practice law and in good standing in Wisconsin. Wisconsin counsel shall sign every document filed in the court and shall be present in person in all proceedings unless excused by the court. (c) For good cause the court may revoke the privilege granted herein of any counsel admitted pro hac vice to appear in any proceeding. (3) NOTICE OF LIMITED APPEARANCE. If an attorney’s scope of representation is limited, notices under s. 802.045 of limited appearance and of termination of limited appearance shall be filed with the court and served on the client and all parties. Upon the filing of the notice of termination of limited appearance, the clerk shall enter the withdrawal of counsel on the court docket without a court order. (4) SUBSTITUTION OF COUNSEL. (a) Applicability. This subsection does not apply to counsel appointed for a person under s. 809.107 or 809.30 (2) (e) or ch. 977 or by the circuit court for postconviction, postcommitment, or postdisposition proceedings under s. 809.107, 809.30, or 809.32. (b) Substitution by mutual consent. 1. An attorney for a party to an appeal or other appellate court proceeding may withdraw upon the party’s consent by filing a notice of withdrawal signed by the party and withdrawing counsel and accompanied by a notice of substitution of counsel signed by substitute counsel. The notice of substitution of counsel must provide the substitute attorney’s name, mailing address, electronic mail address, if any, and telephone number. Upon the filing of a notice of withdrawal and notice of substitution of counsel, the clerk shall enter the substitution on the court docket without a court order. 2. Substitution of counsel without the signature of withdrawing counsel may be allowed for good cause shown and upon such terms as shall be just. (c) Entry of appearance by members or employees of law firms, professional corporations, legal assistance clinics, and agencies. The entry of an appearance as attorney of record by an attorney who is a member or an employee of a law firm, professional corporation, legal assistance clinic, or agency representing a party to the appeal or other appellate court proceeding shall relieve other members or employees of the same law firm, professional corporation, legal assistance clinic, or agency from the necessity of filing a notice of withdrawal and substitution of counsel. Upon entry of such appearance, the clerk shall enter the substitution of counsel on the court docket without a court order un-
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less the entry of appearance indicates that the attorneys will serve as co-counsel. (5) WITHDRAWAL OF COUNSEL. (a) Applicability. This subsection does not apply to counsel appointed for a person under s. 809.107 or 809.30 (2) (e) or ch. 977 or by the circuit court for postconviction, postcommitment, or postdisposition proceedings under s. 809.107, 809.30, or 809.32. (b) Withdrawal by consent. Other than in an appeal under s. 809.107 or 809.30, an attorney for a party to an appeal or other appellate court proceeding may withdraw as counsel of record upon the party’s consent by filing a notice of withdrawal signed by the party indicating consent. The notice shall indicate the party’s last known address unless disclosure of the address would violate a standard of professional responsibility. Upon the filing of a notice of withdrawal indicating the party’s consent, the clerk shall enter the withdrawal on the court docket without a court order. (c) Withdrawal by motion. An attorney desiring to withdraw as counsel of record for a party to an appeal or other appellate court proceeding who is unable to obtain the party’s consent under par. (b), or in an appeal under s. 809.107 or 809.30, must file a motion to withdraw. The motion shall be filed in the court in which the appeal or other appellate court proceeding is pending. (d) Referral for appointment of counsel by the state public defender. If the appeal or other appellate court proceeding is one in which the client may be eligible for the appointment of counsel under s. 809.107 or 809.30 (2) (e) or ch. 977, and if the client requests representation by the state public defender, the attorney shall serve a copy of the motion to withdraw on the appellate division intake unit in the Madison appellate office of the state public defender and refer the client to the appellate division intake office for indigency determination and the possible appointment of counsel. When a client is referred to the state public defender, within 20 days after receipt of a motion to withdraw filed and served under par. (e), the state public defender shall notify the court in which the motion was filed of the status of the determination of the client’s indigency and whether the state public defender will appoint counsel. (e) Content of motion to withdraw as counsel. A motion to withdraw as counsel must include all of the following items: 1. The client’s name and last known address, unless disclosure of the address would violate a standard of professional responsibility. 2. A statement that at least 14 days before the motion was filed the client was notified in person, by mail, by electronic mail, or by phone of all of the following information: a. Counsel’s intent to withdraw. b. Of the right to object to the motion within 11 days after service of the motion. c. That unless the client retains or obtains new counsel, the client is personally responsible for keeping the court and the other parties informed where notices, briefs, or other papers may be served and complying with all court orders and time limitations established by the rules of appellate procedure or by court order, and that if the client fails or refuses to comply with court orders and established time limitations, the client may suffer possible dismissal, default or other penalty. d. The date of any pending deadline or required filing in the appeal or other appellate proceeding. e. If the client is not a natural person, that the client must be represented by counsel unless the appeal is taken from a small claims case. 3. When referral to the state public defender is required under par. (d), a statement that the referral was made and the date it was made.
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4. A statement that the motion was served on the client, all parties to the appeal, and the appellate division intake unit in the Madison appellate office of the state public defender when referral to the state public defender is required under par. (d). 5. If counsel was unable to give the client the notice required under subd. 2., a statement that attempts to give notice have failed and an explanation of what good faith efforts counsel made to satisfy the notice requirement. 6. The reasons for withdrawal under SCR 20:1.16 and the facts relevant to the reasons or factors in the withdrawal determination under par. (f), unless an explanation of the reasons and facts would violate a standard of professional responsibility. (f) Factors in withdrawal determination. The court may approve withdrawal under appropriate terms and conditions. The court may consider the following factors in deciding the attorney’s motion to withdraw: 1. Whether the client has been given reasonable notice and opportunity to obtain substitute counsel. 2. Complexity of the case, the length of time the attorney has served as counsel of record, and preparatory work completed. 3. The amount of fees paid or owed. 4. Whether the request is made to manipulate the appellate process. 5. Whether the attorney-client relationship is irrevocably broken. 6. Prejudice to any party. 7. Delay caused by the withdrawal of counsel of record. 8. Whether the office of the state public defender will appoint counsel. 9. Such other factors as the court may determine to be relevant. (g) Time tolled. The filing of a motion to withdraw under this section automatically tolls the time for performing an act required by the rules of appellate procedure or court order from the date the motion was filed until the date motion is disposed of by order. The time for filing a petition for review under s. 808.10 is not tolled. (h) Motion not necessary. Upon the filing of a petition for review by a self-represented person or new counsel, the clerk shall enter the withdrawal of counsel or substitution of counsel on the court docket without a court order. (6) CLIENT’S FILE. The withdrawing attorney shall surrender to the client or successor counsel the papers and property to which the client is entitled within 14 days of counsel’s receipt of the client’s or successor counsel’s request, unless the court orders otherwise. History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 151 Wis. 2d xxv (1989); Sup. Ct. Order No. 20-05, 2021 WI 25, 396 Wis. 2d xv; 2021 a. 240 s. 30. Judicial Council Committee’s Note, 1978: Rule 809.85 continues former Rule 251.88. [Re Order effective July 1, 1978] Judicial Council Note, 1990: See ss. 48.235 (7), 767.045 (5) and 880.331 (7). NOTE: Sup. Ct. Order No. 20-05 states that “the Judicial Council Note to Wis. Stat. § 809.85 is not adopted but will be published and may be consulted for guidance in interpreting and applying the rule.” Judicial Council Note, 2021: Subsection (5)(a) is not intended to supersede Rule 809.30(4), which governs the withdrawal of appointed counsel. Subsection (6) is consistent with SCR 20:1.16(d) and only adds a time limit in which counsel must act. Subsection (6) allows the court to defer the surrender of papers and property to the client when the appointment of new counsel is anticipated. In this section, “the court” means the court of appeals. Once a timely notice of appeal is filed, the court of appeals gains jurisdiction over the case and the circuit court no longer has jurisdiction to remove court appointed counsel. Roberta Jo W. v. Leroy W., 218 Wis. 2d 225, 578 N.W.2d 185 (1998), 96-2753.
809.86 Rule (Identification of victims and others in briefing, petitions for review, and responses to petitions for review). (1) DECLARATION OF POLICY. By enacting this rule, the supreme court intends to better protect the privacy and dignity interests of crime victims. It requires appellate briefs,
May 22, 2026, are designated by NOTES. (Published 5-22-26)
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petitions for review, and responses to petitions for review to identify crime victims by use of identifiers, as specified in sub. (4), unless there is good cause for noncompliance. The rule protects the identity of victims in appellate briefs, petitions for review, and responses to petitions for review that the courts make available online. (2) APPLICABILITY. This section applies to appeals in the following types of cases: (a) Section 971.17 proceedings. (b) Criminal cases. (c) Chapter 938 cases. (d) Chapter 980 cases. (e) Certiorari review of decisions or orders entered by the department of corrections, the department of health services, or the parole commission in a proceeding or case specified in pars. (a) to (d). (f) Collateral challenges to judgments or orders entered in a proceeding or case specified in pars. (a) to (e). (3) DEFINITION. In this section, “victim” means a natural person against whom a crime, other than a homicide, has been committed or alleged to have been committed in the appeal or proceeding. “Victim” does not include the person convicted of or alleged to have committed a crime at issue in the appeal or proceeding. (4) BRIEFS, PETITIONS FOR REVIEW, AND RESPONSES TO PETITIONS FOR REVIEW. In an appeal specified under sub. (2), the briefs of the parties, petitions for review, and responses to petitions for review shall not, without good cause, identify a victim by any part of his or her name but may identify a victim by one or more initials or other appropriate pseudonym or designation. (5) PROTECTIVE ORDER. For good cause, the court may make
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any order necessary to protect the identity of a victim or other person, or to excuse compliance with this section. History: Sup. Ct. Order No. 14-01, 2015 WI 21, filed 3-2-15, eff. 7-1-15; 2017 a. 365 s. 111; Sup. Ct. Order No. 19-19, 2020 WI 6, 390 Wis. 2d xiii. NOTE: Sup. Ct. Order No. 14-01 states, “The Judicial Council Note to Wis. Stat. § (RULE) 809.86 is not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.” Judicial Council Note, 2015: Proposed s. 809.86 addresses victim privacy concerns that result from public access to searchable documents posted on the Wisconsin Supreme Court and Court of Appeals access website. The proposed rule is intended to protect victims’ constitutional and statutory rights to be treated with fairness, dignity, courtesy, sensitivity, and respect for their privacy. See Wis. Const. Article I, section 9m; Wis. Stat., s. 950.01. Specifically, the rule protects the identity of victims in appellate briefs that the courts make available online. The rule does not extend to other appellate filings, including appendices, because these documents are not currently posted electronically. The proposed rule is not a rule of confidentiality or privilege. It is not intended to limit a defendant’s right to a public trial, to limit the availability of any potential appellate argument or remedy, or to affect laws regarding public records or open court records that are available in the clerks of courts offices. The rule is intended to address only matters in which the state has alleged or proved that a party in the appeal or proceeding has committed criminal conduct against one or more victims in the matter. Accordingly, sub. (2) is limited to matters in which victims of crime are most frequently referenced and identified as victims or alleged victims. Subsection (3) provides a definition of a “victim” that includes an alleged victim. In some appeals, a party’s position will be that there was in fact no victimization, and nothing in this proposed rule is intended to limit arguments to that effect. The privacy issues addressed by the rule do not extend to a deceased victim in the same manner. Therefore, subsection (3) permits the victim of a homicide to be recognized in an appellate brief. Subsection (4) prohibits the use of any part of a victim or alleged victim’s name except initials. Subsection (4) does not prescribe or limit the use of other pseudonyms for victims, as long as they maintain sensitivity and respect for victims. Subsection (5) allows an appellate court to make any necessary order to further protect the identity of victims or to protect the identity of other persons not otherwise covered by the rule. It also allows the court to excuse compliance with this section. Comment, 2020: By S. Ct. Order 19-19, 2020 WI 6 (issued Jan. 29, 2020, eff. July 1, 2020) the court extended the privacy protections of this rule to petitions for review and responses to petitions for review, so that they may be posted on the Wisconsin Supreme Court and Court of Appeals case access website, along with appellate briefs, in a manner that respects victim privacy concerns.
May 22, 2026, are designated by NOTES. (Published 5-22-26)