Chapter 809

809.10 Note Judicial Council Note, 2001: Former sub. (1) (a) has been repealed and recreated as subs. (1) (a) to (d). Subsection 1 (d) clarifies when a docketing statement must be filed. Former sub. (1) (b) has been repealed and recreated as sub. (1) (e). Subsection (1) (f) codifies existing law. See Northridge Bank v. Community Eye Care Ctr., 94 Wis. 2d 201, 203, 287 N.W.2d 810, 811 (1980); Carrington v. St. Paul Fire & Marine Ins. Co., 169 Wis. 2d 211, 217 n.2, 485 N.W.2d 267, 269 n.2 (1992). Please see s. 809.32 for special requirements for a Notice of Appeal in a No-Merit Report appeal. [Re Order No. 00-02 effective July 1, 2001] 

809.10 Note Judicial Council Note, 2002: See also related changes in ss. 809.40 (3) and 809.50 (3). Prior to 2001 WI 39, effective 7/1/01, s. 809.10 (1) provided that docketing statements were not required in “criminal cases or in cases in which a party appears pro se.” State’s appeals in criminal cases were inadvertently omitted from the list of statutory references that replaced “criminal cases” in the prior statute. Subsection (1) (d) is amended to clarify that docketing statements are not required in state’s appeals in criminal cases. The amendment also clarifies that docketing statements are not required in permissive appeals in criminal cases, but are required in other permissive appeals. [Re Order No. 02-01 effective January 1, 2003]

809.10 Note 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.”

809.10 Note Comment, 2021: Sub. (1) (a) adds a provision codifying Douglas v. Dewey, 147 Wis. 2d 328, 338, 433 N.W.2d 243 (1989), holding that payment of the appellate filing fee under s. 809.25 (2) (a) 1. is not a prerequisite to filing a notice of appeal.

809.10 Note To facilitate the adoption of electronic filing and service, three documents will be filed and served in the circuit court case either with the notice of appeal or shortly thereafter: docketing statement, statement on transcript, and optional motions under s. 809.41 (1) and (4). Circuit court electronic filing users are served when they receive these documents through the circuit court electronic filing system. When the attorney general is made a party by operation of s. 809.802 (1), the attorney general will be served through the appellate electronic filing system. Subsequent documents will be filed and served via the appellate electronic filing system.

809.10 Annotation When an appeal is pending, matters not directly concerned with the appeal but related to the case are still properly within the trial court’s jurisdiction. First National Bank of Kenosha v. Schaefer, 91 Wis. 2d 360, 283 N.W.2d 410 (Ct. App. 1979).

809.10 Annotation The filing date stamped on the notice of appeal is not conclusive as to the date of filing. Boston Old Colony Insurance Co. v. International Rectifier Corp., 91 Wis. 2d 813, 284 N.W.2d 93 (1979).

809.10 Annotation A respondent was allowed to challenge a trial court order denying a motion for summary judgment despite the failure to file a notice of cross-appeal. Auric v. Continental Casualty Co., 111 Wis. 2d 507, 331 N.W.2d 325 (1983).

809.10 Annotation Service of the notice of appeal on opposing parties is not necessary to confer jurisdiction on the court of appeals. Rhyner v. Sauk County, 118 Wis. 2d 324, 348 N.W.2d 588 (Ct. App. 1984).

809.10 Annotation Failure to submit the docketing fee within the time specified for filing a notice of appeal does not deprive the court of appeals of jurisdiction. The notice of appeal, not the docketing fee, vests the court with jurisdiction. Douglas v. Dewey, 147 Wis. 2d 328, 433 N.W.2d 243 (1989).

809.10 Annotation The federal prohibition against stacking cross-appeals is not applicable under sub. (2) (b). The time limits under sub. (1) (b) are jurisdictional and may not be extended. Estate of Donnell v. City of Milwaukee, 160 Wis. 2d 529, 466 N.W.2d 670 (Ct. App. 1991).

809.10 Annotation A nonlawyer may not sign and file a notice of appeal on behalf of a corporation. To do so constitutes practicing law without a license in violation of s. 757.30 and voids the appeal. Requiring a lawyer to represent a corporation in filing the notice is constitutional. Jadair Inc. v. United States Fire Insurance Co., 209 Wis. 2d 187, 562 N.W.2d 401 (1997), 95-1946.

809.10 Annotation Section 799.06 (2) authorizes a non-lawyer employee to represent a party to a small claims action at the appellate, as well as trial court, level and is an exception to the rule stated in Jadair, 209 Wis. 2d 187 (1997). Holz v. Busy Bees Contracting, Inc., 223 Wis. 2d 598, 589 N.W.2d 633 (Ct. App. 1998), 98-1076.

809.10 Annotation The failure to sign a notice of appeal can be corrected and does not compel immediate dismissal. State v. Seay, 2002 WI App 37, 250 Wis. 2d 761, 641 N.W.2d 437, 00-3490.

809.10 Annotation Section 753.016 (1) and (2) provides that in Milwaukee County each branch of the circuit court shall have a deputy clerk provided by the clerk of the circuit court. In Milwaukee County, “the clerk of the trial court” under sub. (1) (a) necessarily encompasses the deputy clerk assigned to the specific branch of the circuit court as well as deputy clerks performing duties within the office of the clerk of circuit court. State ex rel. Kelley v. State, 2003 WI App 81, 261 Wis. 2d 803, 661 N.W.2d 854, 02-1495.

809.10 Annotation Appeal of a judgment, the date of which was specified in the notice of appeal, included an appeal of an order for costs entered after that date. A judgment is perfected by the taxation of costs and the insertion of the amount into the judgment so that the order of costs becomes part of the judgment subject to appeal. DeWitt Ross & Stevens, S.C. v. Galaxy Gaming & Racing Ltd. Partnership, 2003 WI App 190, 267 Wis. 2d 233, 670 N.W.2d 74, 02-0359.

809.10 Annotation Affirmed on other grounds. 2004 WI 92, 273 Wis. 2d 577, 682 N.W.2d 839, 02-0359.

809.10 Annotation In order to confer jurisdiction on the court of appeals, a notice of appeal filed by counsel must contain the handwritten signature of an attorney authorized to practice law in Wisconsin. Counsel cannot delegate the duty to affix a signature on a notice of appeal to a person not authorized to practice law in Wisconsin. When a notice of appeal is not signed by an attorney when an attorney is required, the notice of appeal is fundamentally defective and cannot confer jurisdiction. Brown v. MR Group, LLC, 2004 WI App 122, 274 Wis. 2d 804, 683 N.W.2d 481, 03-2309.

809.10 Annotation The plaintiffs in this case were not “respondents” under sub. (4) because they were not named in the notice of appeal, and thus were not “respondents” adverse to the appellants. The appellants could not name the plaintiffs as respondents in the notice of appeal because the appellants were not aggrieved by any final order entered against the appellants and in favor of the plaintiffs. The appellants could not evade the bar to appealing non-final-orders as of right by the expedient of appealing final orders against those named in the notice of appeal in order to get review of non-final orders and rulings favorable to parties who were still active in the litigation. Commerce Bluff One Condominium Ass’n v. Dixon, 2011 WI App 46, 332 Wis. 2d 357, 798 N.W.2d 264, 09-1953.

809.10 Annotation Applying well-established principles of law that apply equally to the United States government when it is a party, a decision not to litigate any of the issues involved in the circuit court precludes the United States from pursuing relief in the court of appeals. Nickel v. United States, 2012 WI 22, 339 Wis. 2d 48, 810 N.W.2d 450, 11-0987.

809.10 Annotation Mechanics of Making an Appeal in the Court of Appeals. Felsenthal. WBB Oct. 1981.

809.10 Annotation Appellate review: Choosing and shaping the proper standard. Leavell. WBB Apr. 1987.

809.10 Annotation Changing standards of appellate review. Leavell. WBB May 1987.

809.103 809.103 Appeals in proceedings related to prisoners.

809.103(1) (1) In this section, “prisoner” has the meaning given in s. 801.02 (7) (a) 2.

809.103(2) (2) The appellate court shall notify the department of justice by a procedure developed by the director of state courts in cooperation with the department of justice when the appellate court rules that an appeal or supervisory writ proceeding brought by a prisoner meets any of the following conditions:

809.103(2)(a) (a) Is frivolous, as determined under s. 802.05 (2) or 895.044.

809.103(2)(b) (b) Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.

809.103(2)(c) (c) Seeks review of a denial of monetary damages from a defendant who is immune from such relief.

809.103(2)(d) (d) There is no ground upon which relief may be granted.

809.103(3) (3) A prisoner is not relieved from paying the full filing fee related to an appeal or supervisory writ proceeding if the appellate court dismisses the appeal or supervisory writ proceeding for one of the reasons listed in sub. (2).

809.103 History History: 1997 a. 133; Sup. Ct. Order No. 03-06A, 2005 WI 86, 280 Wis. 2d xiii; 2011 a. 2.

809.104 809.104 Appeal of decisions relating to electronics and information technology manufacturing zone.

809.104(1) (1) Applicability. This section applies to the appeal of a judgment or order vacating, enjoining, reviewing, or otherwise relating to a decision by a state or local official, board, commission, condemnor, authority, or department concerning an electronics and information technology manufacturing zone designated under s. 238.396 (1m) and supersedes all inconsistent provisions of this chapter.

809.104(2) (2) Appeal as of right.

809.104(2)(a) (a) Notwithstanding s. 808.03 (1), an appeal from a judgment or order of the trial court vacating, enjoining, reviewing, or otherwise relating to a decision by a state or local official, board, commission, condemnor, authority, or department concerning an electronics and information technology manufacturing zone designated under s. 238.396 (1m) may be taken to as a matter of right and is governed by this section.

809.104(2)(b) (b) A party may initiate an appeal under this section by filing a notice of appeal with the clerk of the trial court in which the order or judgment appealed from was entered and shall specify in the notice of appeal the order or judgment appealed from. The docketing statement required under s. 809.10 (1) (d) shall be filed in the circuit court and shall accompany the notice of appeal. The appellant shall pay the filing fee with the notice of appeal. The clerk of the circuit court shall transmit to the court of appeals, within 3 days after the filing of the notice of appeal, the docketing statement, a copy of the notice of appeal, and a copy of the circuit court record of the case maintained under s. 59.40 (2) (b) or (c).

809.104(2)(bm) (bm) The clerk of the court of appeals shall file the appeal upon receipt of the items referred to in par. (b). The clerk shall assign a case number, create a notice that the case has been docketed, and transmit the notice to the clerk of circuit court. The clerk shall serve the notice of docketing on paper parties by traditional methods.

809.104(2)(c) (c) The appellant shall request a copy of the transcript of the court reporter’s verbatim record of the proceedings for each of the parties to the appeal and make arrangements to pay for the transcript and copies within 5 days after the filing of the notice of appeal under par. (b).

809.104(2)(d) (d) Within 5 days after filing of the notice of appeal in the circuit court, the appellant shall file a statement on transcript with the clerk of circuit court, who shall transmit the statement on transcript to the court of appeals within 3 days after its filing. The statement on transcript shall either designate the portions of the transcript that have been requested by the appellant or contain a statement by the appellant that a transcript is not necessary for prosecution of the appeal. If a transcript is necessary for prosecution of the appeal, the statement on transcript shall also contain a statement by the court reporter that the appellant has requested copies of the transcript or designated portions thereof for each of the other parties; that the appellant has made arrangements to pay for the original transcript and for all copies for the other parties; the date on which the appellant requested the transcript and made arrangements to pay for it; and the date on which the transcript must be served on the parties.

809.104(2)(dm) (dm) For electronic filing users in the circuit court case, receipt of the notice of appeal, docketing statement, and statement on transcript through the circuit court electronic filing system shall constitute service of the documents. The appellant shall serve the notice of appeal, docketing statement, and statement on transcript on paper parties by traditional methods.

809.104(2)(e) (e) The court reporter shall serve copies of the transcript on the parties indicated in the statement on transcript within 5 days after the date the appellant requested copies of the transcript under par. (c).

809.104(2)(f) (f) Subsequent proceedings in the appeal are governed by the procedures for civil appeals and the procedures under subch. VI, except as follows:

809.104(2)(f)1. 1. The appellant shall file a brief within 15 days after the filing of the record on appeal.

809.104(2)(f)2. 2. The respondent shall file a brief within 10 days after the service of the appellant’s brief.

809.104(2)(f)3. 3. The appellant shall file within 10 days after the service of the respondent’s brief a reply brief or statement that a reply brief will not be filed.

809.104(2)(f)4. 4. Within 3 days of receipt of the appellant’s reply brief or statement that a reply brief will not be filed under subd. 3., the court of appeals shall certify the appeal to the supreme court under s. 809.61.

809.104(2)(f)5. 5. The supreme court shall give preference to a certification from the court of appeals under this section. If the supreme court refuses to take jurisdiction of the appeal certified to it by the court of appeals under this section, the appeal shall continue in the court of appeals as though the certification had not been made.

809.104(3) (3) Stay pending appeal. Any judgment or order of a circuit court vacating, enjoining, reviewing, or otherwise relating to a decision by a state or local official, board, commission, condemnor, authority, or department concerning an electronics and information technology manufacturing zone designated under s. 238.396 (1m) shall be stayed automatically upon the filing of an appeal as provided under this section. Any party to the proceeding may apply to the appellate court in which the case is pending at the time to request that the stay be modified or vacated.

809.104 History History: 2017 a. 58; Sup. Ct. Order No. 19-01, 2019 WI 44, 386 Wis. 2d xvii; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

809.105 809.105 Appeals in proceedings related to parental consent prior to performance of abortion.

809.105(1) (1) Applicability. This section applies to the appeal of an order under s. 48.375 (7) and supersedes all inconsistent provisions of this chapter.

809.105(2) (2) Initiating an appeal. Only a minor may initiate an appeal under this section. The minor shall initiate the appeal by filing, or by a member of the clergy filing on the minor’s behalf, a notice of appeal with the clerk of the trial court in which the order appealed from was entered and shall specify in the notice of appeal the order appealed from. The minor may use the name “Jane Doe” instead of her name on the notice of appeal and all other papers filed with the court of appeals.

809.105(3) (3) Perfecting the appeal.

809.105(3)(a) (a) Fee. No fee for filing an appeal in the court of appeals under this section may be required of a minor or of a member of the clergy who files an appeal under this section on behalf of the minor.

809.105(3)(b) (b) Forwarding to court of appeals. The clerk of the trial court shall transmit to the court of appeals within 3 calendar days after the filing of the notice of appeal a copy of the notice of appeal and a copy of the trial court case record maintained as provided in s. 59.40 (2) (b), using the name “Jane Doe” instead of the minor’s name, and the record on appeal, assembled as provided in sub. (4).

809.105(3)(c) (c) Docketing in court of appeals. The clerk of the court of appeals shall docket the appeal immediately upon receipt of the items specified in par. (b). The clerk shall assign a case number, create a notice that the case has been docketed, and transmit the notice to the clerk of circuit court. The clerk shall serve the notice of docketing on paper parties by traditional methods.

809.105(3)(d) (d) Statement on transcript. A minor or member of the clergy may not be required to file a statement on transcript in an appeal under this section.

809.105(4) (4) Record on appeal. The record in an appeal under this section consists of the following:

809.105(4)(a) (a) The petition.

809.105(4)(b) (b) Proof of service of the notice of hearing.

809.105(4)(c) (c) The findings of fact, conclusions of law and final order of the trial court.

809.105(4)(d) (d) Any other order made that is relevant to the appeal and the documents upon which that other order is based.

809.105(4)(e) (e) Exhibits, whether or not received in evidence, including photographs, video recordings, audio recordings, and computer media such as discs or flash drives, except that physical evidence, models, charts, diagrams, and photographs exceeding 8.5 x 11 inches in size shall not be included unless requested by the minor to be included in the record.

809.105(4)(f) (f) Any other document filed in the trial court that the minor requests to have included in the record.

809.105(4)(g) (g) The notice of appeal.

809.105(4)(h) (h) A transcript of the court reporter’s verbatim record.

809.105(4)(i) (i) The certificate of the clerk.

809.105(4)(j) (j) If the trial court appointed a guardian ad litem under s. 48.235 (1) (d), a letter written to the court of appeals by the guardian ad litem indicating his or her position on whether or not the minor is mature and well-informed enough to make the abortion decision on her own and whether or not the performance or inducement of an abortion is in the minor’s best interests.

809.105(5) (5) Transcript of court reporter’s verbatim record. At the time that a minor or member of the clergy files a notice of appeal, the minor or member of the clergy shall make arrangements with the reporter for the preparation of a transcript of the court reporter’s verbatim record of the proceedings under s. 48.375 (7). The reporter shall file the transcript with the trial court within 2 calendar days after the notice of appeal is filed. The county of the court that held the proceeding under s. 48.375 (7) shall pay the expense of transcript preparation under this subsection.

809.105(6) (6) Voluntary dismissal. A minor may dismiss an appeal under this section by filing a notice of dismissal in the court of appeals.

809.105(7) (7) Briefs. Briefs are not required to be filed in appeals under this section.

809.105(8) (8) Assignment and advancement of cases. The court of appeals shall take cases appealed under this section in an order that ensures that a judgment is made within 4 calendar days after the appeal has been filed in the court of appeals. The time limit under this subsection may be extended with the consent of the minor and her counsel, if any, or the member of the clergy who initiated the appeal under this section, if any.

809.105(8m) (8m) Oral argument. If the court of appeals determines that a case appealed under this section is to be submitted with oral argument, the oral argument shall be held in chambers or, on motion of the minor through her counsel or through the member of the clergy who filed the appeal under this section, if any, or on the court of appeals’ own motion, by telephone, unless the minor through her counsel or the member of the clergy demands that the oral argument be held in open court.

809.105(9) (9) Costs. The court of appeals may not assess costs against a minor or member of the clergy in an appeal under this section.

809.105(10) (10) Remittitur.

809.105(10)(a) (a) A judgment by the court of appeals under this section is effective immediately, without transmittal to the trial court, as an order either granting or denying the petition. If the court of appeals reverses a trial court order denying a petition under s. 48.375 (7), the court of appeals shall immediately so notify the minor by personal service on her counsel or the member of the clergy who initiated the appeal under this section, if any, of a certified copy of the order of the court of appeals granting the minor’s petition. If the court of appeals affirms the trial court order, it shall immediately so notify the minor by personal service on her counsel or the member of the clergy who initiated the appeal under this section, if any, of a copy of the order of the court of appeals denying the petition and shall also notify the minor by her counsel or the member of the clergy who initiated the appeal under this section on behalf of the minor, if any, that she may, under sub. (11), file a petition for review with the supreme court under s. 809.62. The court of appeals shall pay the expenses of service of notice under this subsection. The clerk of the court of appeals shall transmit to the trial court the judgment and opinion of the court of appeals and the record in the case filed under sub. (4), within 31 days after the date that the judgment and opinion of the court of appeals are filed. If a petition for review is filed under sub. (11), the transmittal shall be made within 31 days after the date that the supreme court rules on the petition for review.

809.105(10)(b) (b) Counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall immediately, upon notification under par. (a) that the court of appeals has granted or denied the petition, notify the minor. If the court of appeals has granted the petition, counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall hand deliver a certified copy of the order of the court of appeals to the person who intends to perform or induce the abortion. If with reasonable diligence the person who intends to perform or induce the abortion cannot be located for delivery, then counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall leave a certified copy of the order with the person’s agent at the person’s principal place of business. If a clinic or medical facility is specified in the petition as the corporation, partnership or other unincorporated association that employs the person who intends to perform or induce the abortion, then counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall hand deliver a certified copy of the order to an agent of the corporation, partnership or other unincorporated association at its principal place of business. There may be no service by mail or publication. The person or agent who receives the certified copy of the order under this paragraph shall place the copy in the minor’s medical record.

809.105(11) (11) Petition for review in supreme court.

809.105(11)(a) (a) Only a minor or the member of the clergy who initiated the appeal under this section, if any, may initiate a review of an appeal under this section. The petition for review of an appeal in the supreme court shall contain:

809.105(11)(a)1. 1. A statement of the issues presented for review and how the issues were decided by the trial court and court of appeals.

809.105(11)(a)2. 2. A brief statement explaining the reason for appeal to the supreme court.

809.105(11)(a)3. 3. The judgment and opinion of the court of appeals, and the findings of fact, conclusions of law and final order of the trial court that were furnished to the court of appeals. The court of appeals shall provide a copy of these papers to the minor, if any, the member of the clergy who initiated the appeal under this section, if any, her counsel or her guardian ad litem, if any, immediately upon request.

809.105(11)(a)4. 4. A copy of any other document submitted to the court of appeals under sub. (4).

809.105(11)(b) (b) The supreme court shall decide whether or not to grant the petition for review and shall decide the issue on review within the time specified in par. (c).

809.105(11)(c) (c) The supreme court shall, by court rule, provide for expedited appellate review of cases appealed under this subsection because time may be of the essence regarding the performance of the abortion.

809.105(11)(cm) (cm) If the supreme court determines that a case reviewed under this subsection is to be submitted with oral argument, the oral argument shall be held in chambers or, on motion of the minor through her counsel or through the member of the clergy who initiated the appeal under this section, if any, or on the supreme court’s own motion, by telephone, unless the minor through her counsel or the member of the clergy demands that the oral argument be held in open court.

809.105(11)(d) (d) A judgment or decision by the supreme court under this section is effective immediately, without transmittal to the trial court, as an order either granting or denying the petition. If the supreme court reverses a court of appeals order affirming a trial court order denying a petition under s. 48.375 (7), the supreme court shall immediately so notify the minor by personal service on her counsel, if any, or on the member of the clergy who initiated the appeal under this section, if any, of a certified copy of the order of the supreme court granting the minor’s petition. If the supreme court affirms the order of the court of appeals, it shall immediately so notify the minor by her counsel or by the member of the clergy who initiated the appeal under this section, if any. The clerk of the supreme court shall transmit to the trial court the judgment, or decision, and opinion of the supreme court and the complete record in the case within 31 days after the date that the judgment, or decision, and opinion of the supreme court are filed. The supreme court shall pay the expense of service of notice under this subsection.

809.105(11)(e) (e) Counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall immediately, upon notification under par. (d) that the supreme court has granted or denied the petition, notify the minor. If the supreme court has granted the petition, counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall hand deliver a certified copy of the order of the supreme court to the person who intends to perform or induce the abortion. If with reasonable diligence the person who intends to perform or induce the abortion cannot be located for delivery, then counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall leave a certified copy of the order with the person’s agent at the person’s principal place of business. If a clinic or medical facility is specified in the petition as the corporation, partnership or other unincorporated association that employs the person who intends to perform or induce the abortion, then counsel for the minor, if any, or the member of the clergy who initiated the appeal under this section, if any, shall hand deliver a certified copy of the order to an agent of the corporation, partnership or other unincorporated association at its principal place of business. There may be no service by mail or publication. The person or agent who receives the certified copy of the order under this paragraph shall place the order in the minor’s medical record.