Chapter 809

809.14 Note Sub. (5) codifies the existing process for filing motions prior to appeal. The first motion prior to appeal is filed as a new action in the court of appeals and transmitted to the circuit court, providing service on the electronic parties. Subsequent motions are also transmitted to the circuit court.

809.14 Annotation A motion to dismiss an appeal under sub. (3) does not extend the time for filing a cross-appeal. Rossmiller v. Rossmiller, 151 Wis. 2d 386, 444 N.W.2d 445 (Ct. App. 1989).

809.15 809.15 Rule (Record on appeal).

809.15(1) (1) Composition of record.

809.15(1)(a) (a) The record on appeal consists of the following unless the parties stipulate to the contrary:

809.15(1)(a)1. 1. The initiating document by which the action or proceeding was commenced;

809.15(1)(a)2. 2. Proof of service of summons or other process;

809.15(1)(a)3. 3. Answer or other responsive pleading;

809.15(1)(a)4. 4. Instructions to the jury;

809.15(1)(a)5. 5. Verdict, or findings of the court, and order based thereon;

809.15(1)(a)6. 6. Opinion of the court;

809.15(1)(a)7. 7. Final judgment;

809.15(1)(a)8. 8. Order made after judgment relevant to the appeal and documents upon which the order is based;

809.15(1)(a)9. 9. 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 a party to be included in the record;

809.15(1)(a)10. 10. Any other document filed in the court requested by a party to be included in the record;

809.15(1)(a)11. 11. Notice of appeal;

809.15(1)(a)12. 12. Bond or undertaking;

809.15(1)(a)13. 13. Transcript of court reporter’s verbatim record;

809.15(1)(a)14. 14. Certificate of the clerk.

809.15(1)(b) (b) The clerk of the circuit court may request by letter permission of the court to substitute a photocopy for the actual paper or exhibit filed in the circuit court. A photocopy does not include a document that the clerk of the circuit court has electronically scanned into the court record as permitted under SCR 72.05.

809.15(1)(c) (c) For purposes of preparing the record on appeal, if the original record has been discarded as permitted under SCR 72.03 (3), the electronically scanned document constitutes the official court record.

809.15(1)(d) (d) If the record includes the redacted version of any document, it shall also contain the unredacted version if submitted to the circuit court. The unredacted version shall be marked as confidential.

809.15(1)(e) (e) If the record includes a sealed document, the document shall be marked as sealed.

809.15(2) (2) Compilation and approval of the record. The clerk of circuit court shall assemble the record in the order set forth in sub. (1) (a), identify each record item by its circuit court document number, date of filing, and title, and prepare a list of the numbered documents. The clerk shall use the document number assigned in the circuit court as the record number on appeal. The clerk shall also include in the list of numbered documents a list of exhibits not electronically maintained that are part of the record on appeal. At least 10 days before the due date for filing the record in the court, the clerk of the circuit court shall notify in writing each party appearing in the circuit court that the record has been assembled and is available for inspection. The clerk of the circuit court shall include with the notice the list of the documents constituting the record.

809.15(3) (3) Defective record. A party who believes that the record, including the transcript of the court reporter’s verbatim record, is defective or that the record does not accurately reflect what occurred in the circuit court may move the court in which the record is located to supplement or correct the record. Motions under this subsection may be heard under s. 807.13.

809.15(4) (4) Processing the record.

809.15(4)(a) (a) Transmittal of the record. The clerk of the circuit court shall electronically transmit the record to the court of appeals within 20 days after the date of the filing of the transcript designated in the statement on transcript or within 20 days after the date of the filing of a statement on transcript indicating that no transcript is necessary for prosecution of the appeal, unless the court extends the time for transmittal of the record or unless the tolling provisions of s. 809.14 (3) extend the time for transmittal of the record. If additional portions of the transcript are requested under s. 809.11 (5), the clerk of the circuit court shall transmit the record to the court of appeals within 20 days after the date of the filing of the additional portions of the transcript. The clerk of the circuit court shall transmit by traditional methods any original documents or exhibits not electronically maintained.

809.15(4)(b) (b) Late transcript. If the reporter fails to file the transcript within the time limit specified in the statement on transcript, the clerk of circuit court shall transmit the record not more than 90 days after the filing of the notice of appeal, unless the court of appeals extends the time for filing the transcript of the court reporter’s verbatim record. If the court extends the time for filing the transcript of the court reporter’s verbatim record, the clerk of circuit court shall transmit the record within 20 days after the date that the transcript is filed.

809.15(4)(c) (c) Supplementation or correction of record. Notwithstanding pars. (a) and (b), if a motion to supplement or correct the record is filed in circuit court, the clerk of circuit court may not transmit the record until the motion is determined. The clerk of the circuit court shall transmit to the clerk of the court of appeals a copy of any motion to supplement or correct the record that is filed in circuit court. The circuit court shall determine, by order, the motion to supplement or correct the record within 14 days after the filing or the motion is considered to be denied and the clerk of circuit court shall immediately enter an order denying the motion and shall transmit the record to the court of appeals within 20 days after entry of the order. If the circuit court grants the motion, the clerk of circuit court shall transmit the supplemented or corrected record to the court of appeals within 20 days after entry of the order or filing of the supplemental or corrected record in the circuit court, whichever is later.

809.15(4m) (4m) Notice of filing of record. The clerk of the court of appeals shall notify the clerk of circuit court and all parties appearing in the circuit court of the date on which the record was filed. When the clerk of the circuit court must transmit original documents or exhibits not electronically maintained by traditional methods, the date on which the record was filed is the date the electronic transmission and index was received by the clerk of the court of appeals.

809.15(5) (5) Agreed statement in lieu of record. The parties may file in the court within the time prescribed by sub. (4) an agreed statement of the case in lieu of the record on appeal. The statement must:

809.15(5)(a) (a) Show how the issues presented by the appeal arose and were decided by the trial court; and

809.15(5)(b) (b) Recite sufficient facts proved or sought to be proved as are essential to a resolution of the issues presented.

809.15 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 403; 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. 12-05, 2012 WI 112, 344 Wis. 2d xxxiii; Sup. Ct. Order No. 15-02, 2015 WI 102, 365 Wis. 2d xix; 2017 a. 365 s. 111; 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.

809.15 Note Judicial Council Committee’s Note, 1978: Sub. (1) substantially embodies former s. 251.25. It also permits the filing of a photocopy instead of the original record but only with the approval of the Court of Appeals, changing to some extent prior Rules 251.25 (13) and 251.27. Under this section the parties can stipulate to exclude some items from the record, but this should be done before the clerk assembles the record.

809.15 Note Sub. (2). The responsibility for having the record assembled and transmitted to the Court of Appeals is transferred from the appellant to the clerk of the trial court. It is not necessary to have the attorneys present at the pagination of the record. The federal procedure set forth in Rule 11 (b), FRAP, under which the clerk assembles the record and then notifies the parties so that they can inspect the record prior to it being sent to the Court of Appeals is adopted. Also adopted is the federal procedure of the clerk preparing a list of all the papers in the record. The former system of numbering each page in the record consecutively is abandoned for the simpler practice of assigning a letter or number to each document and using its internal page reference. Thus, the reference to the third page of the first document would be A-3 and to the fifth page of the second document B-5.

809.15 Note Sub. (3). This provision replaces former Rule 251.30 and s. 817.117.

809.15 Note Subs. (4) and (5). The provisions of former Rules 251.29 and 251.28 are included in these subsections. [Re Order effective July 1, 1978]

809.15 Note Judicial Council Committee’s Note, 1981: Sub. (4) is amended to provide for an expedited transmittal of the record for appeals in which a transcript is not necessary for prosecution of the appeal or a transcript is filed in less than the maximum time period permitted by ch. 809. [Re: Order effective Jan. 1, 1982]

809.15 Note Judicial Council Note, 1988: Sub. (3) is amended to allow motions to correct the record to be heard by telephone conference. [Re: Order effective Jan. 1, 1988]

809.15 Note Judicial Council Note, 2001: Subsection (2) requires that numbers be used to identify the contents of the record. Subsection (4) (a) recreates the general rule for record transmittal from former sub. (4). Exceptions to the general rule are set forth in subs. (4) (b) and (c). Subsection (4m) recreates the last sentence of former sub. (4). [Re: Order No. 00-02 effective July 1, 2001]

809.15 Note NOTE: Sup. Ct. Order No. 15-02 states: The Comments to Wis. Stat. ss. 809.105 (3) and 809.15 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.

809.15 Note Comment, 2015: Effective July 1, 2016, the Wisconsin Supreme Court amended the Rules of Appellate Procedure to permit the clerk of circuit court to transmit the record to the appellate court electronically. The amendment applies to record transmittals due on or after July 1, 2016. [Re: Order No. 15-02 effective July 1, 2016]

809.15 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.”

809.15 Note Comment, 2021: In 2016 the court adopted ss. 809.19 (2) (i) and 801.21 (9) relating to redaction and sealing of certain court documents. Sub. (1) addresses transmittal to the court of appeals of a record that contains redacted or sealed documents.

809.15 Note In 2018 the circuit court case management software began assigning a document number to each item in the circuit court record as it is filed. Sub. (2) requires the record index to use the same numbering on appeal. This will facilitate identification of documents and minimize confusion that may arise when a document is stamped with two different numbers by the circuit and appellate courts. If a circuit court record item is not included in the record on appeal, this will appear as a numbering gap in the index to the record.

809.15 Note An appellant’s failure to file a motion under sub. (3) did not constitute waiver of the right to challenge the adequacy of the transcript. State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987).

809.15 Annotation It is the appellant’s responsibility to assure that the record is complete. If the record is incomplete, it is assumed that the missing material supports the trial court’s ruling. Fiumefreddo v. McLean, 174 Wis. 2d 10, 496 N.W.2d 226 (Ct. App. 1993).

809.17 809.17 Rule (Expedited appeals program, voluntary alternative dispute resolution and presubmission conference).

809.17(1) (1) In order to minimize appellate delay and reduce its backlog, the court of appeals may develop an expedited appeals program. The program may involve mandatory completion of docketing statements by appellant’s counsel and participation in presubmission conferences at the direction of the court, but participation in the court’s accelerated briefing and decision process is voluntary. The rules and procedures governing the program shall be set forth in the court of appeals’ internal operating procedures.

809.17(2) (2) The court of appeals may require all attorneys of record in any appeal to participate in a presubmission conference, either by telephone or in person, with an officer of the court. An attorney of record with no direct briefing interest in the appeal may waive his or her participation in the conference by written notice to the court.

809.17(2m) (2m) The court of appeals may establish an appellate mediation program and make and enforce all rules necessary for the prompt and orderly dispatch of the business of the program. Participation in the appellate mediation program is voluntary, but the program may involve mandatory participation in the presubmission conferences at the direction of the court. Only those cases in which a docketing statement is required to be filed under s. 809.10 (1) (a) are eligible for participation in the appellate mediation program. The parties to the appeal shall pay the fees of a mediator providing services under the program, unless those fees are waived or deferred by the court. The rules and procedures governing the program shall be set forth in the court of appeals’ internal operating procedures.

809.17 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 131 Wis. 2d xvi (1986); Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii.

809.17 Note Court of Appeals Note, 1986: Section (Rule) 809.17 is repealed and recreated to give the court of appeals authority to administer its expedited appeals program pursuant to Section VII, Expedited Appeals, of the Court of Appeals Internal Operating Procedures (amended 1986). The rule replaces a similar delegation of authority to the chief judge of the court of appeals by order of the supreme court dated December 19, 1983. [Re Order effective January 1, 1987]

809.18 809.18 Rule (Voluntary dismissal).

809.18(1) (1) An appellant may dismiss a filed appeal by filing a notice of dismissal in the court or, if the appeal is not yet filed, in the circuit court. The dismissal of an appeal by the appellant or by agreement of the parties or their counsel does not affect the status of a lower court decision, the status of a cross-appeal, or the right of a respondent to file a cross-appeal.

809.18(2) (2) If the parties compromise or otherwise settle the entire matter in litigation prior to the issuance of the decision of the court of appeals, the appellant shall immediately inform the court in writing, signed by all parties, that the matter has been compromised or settled. Upon receipt of such information, the court shall dismiss the appeal in accordance with sub. (1).

809.18 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1995 a. 224; Sup. Ct. Order No. 01-15, 2003 WI 94, 261 Wis. 2d xxxvii; Sup. Ct. Order No. 07-15, 2008 WI 27, filed 4-2-08, eff. 7-1-08.

809.18 Note Judicial Council Committee’s Note, 1978: An appeal may be dismissed by the appellant at any time prior to a court decision on the appeal without approval of the court or the respondent. This changes the former procedure and modifies Rule 42, FRAP. The Rule specifically protects a respondent who has or intends to file a cross-appeal, and for this reason the appellant is authorized to dismiss the appeal at will. The filing of a notice of dismissal does not affect the liability of the appellant for costs or fees, or the power of the court to impose penalties under Rule 809.83 (1). [Re Order effective July 1, 1978]

809.18 Annotation This section does not require the dismissal of a petition for a supervisory writ upon the filing of a notice of voluntary dismissal. A petition for a supervisory writ is not an “appeal.” Peter B. v. State, 184 Wis. 2d 57, 516 N.W.2d 746 (Ct. App. 1994).

809.18 Annotation The court of appeals must dismiss an appeal when an appellant files a notice of voluntary dismissal before the court issues its decision on the appeal. State v. Lee, 197 Wis. 2d 959, 542 N.W.2d 143 (1996).

809.18 Annotation The date stamped on a court of appeals decision or order is the date it is issued and filed. That the clerk’s office mails appellate decisions to the parties the day before they are dated and filed does not mean that decisions are to be deemed to have been issued on the mailing date. A notice of voluntary dismissal filed on the day prior to an opinion being issued operates to automatically dismiss the appeal. State v. Jones, 2002 WI 53, 252 Wis. 2d 592, 645 N.W.2d 610, 01-1155.

809.19 809.19 Rule (Briefs and appendix).

809.19(1) (1) Brief of appellant. The appellant shall file a brief within 40 days of the filing in the court of the record on appeal. The brief must contain:

809.19(1)(a) (a) A table of contents with page references of the various portions of the brief, including headings of each section of the argument, and a table of cases arranged alphabetically, statutes and other authorities cited with reference to the pages of the brief on which they are cited.

809.19(1)(b) (b) A statement of the issues presented for review and how the trial court decided them.

809.19(1)(c) (c) A statement with reasons as to whether oral argument is necessary and a statement as to whether the opinion should be published and, if so, the reasons therefor.

809.19(1)(d) (d) A statement of the case, which must include: a description of the nature of the case; the procedural status of the case leading up to the appeal; the disposition in the trial court; and a statement of facts relevant to the issues presented for review, with appropriate references to the record.

809.19(1)(e) (e) An argument, arranged in the order of the statement of issues presented. The argument on each issue must be preceded by a one sentence summary of the argument and is to contain the contention of the appellant, the reasons therefor, with citations to the authorities, statutes and parts of the record relied on as set forth in the Uniform System of Citation and SCR 80.02.

809.19(1)(f) (f) A short conclusion stating the precise relief sought.

809.19(1)(g) (g) Reference to an individual by one or more initials or other appropriate pseudonym or designation rather than by his or her full name when the record is required by law to be confidential or as required under s. 809.86. In an appeal from a domestic abuse protective order or harassment injunction in which “petitioner” has been substituted for an individual’s name in the caption, reference to that individual shall be made only as “petitioner.”

809.19(1)(h) (h) The signature of the attorney who files the brief; or, if the party who files the brief is not represented by an attorney, the signature of that party. If the brief was prepared with the drafting assistance of an attorney under s. 802.05 (2m), the brief must contain a statement that “This document was prepared with the assistance of a lawyer.”

809.19(1)(i) (i) Reference to the parties by name, rather than by party designation, throughout the argument section, unless “petitioner” must be substituted for the party’s name under par. (g).

809.19(2) (2) Appendix.

809.19(2)(a) (a) Contents. The appellant’s brief shall be filed with a short appendix containing, at a minimum, the findings or opinion of the circuit court, limited portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues, and a copy of any unpublished opinion cited under s. 809.23 (3) (a) or (b). If the appeal is taken from a circuit court order or judgment entered in a judicial review of an administrative decision, the appendix shall also contain the findings of fact and conclusions of law, if any, and final decision of the administrative agency. The appendix shall include a table of contents indicating, for each record item included in the appendix, the title, page of the appendix on which the record item begins, and the circuit court document number. The table of contents shall also contain the citation of any unpublished opinion included in the appendix.

809.19(2)(ae) (ae) Form. The appendix shall be filed as a single document separate from the brief. Each document shall be imaged at a resolution sufficient to ensure legibility.

809.19(2)(am) (am) Confidentiality. If the record is required by law to be confidential, the portions of the record included in the appendix shall be reproduced using one or more initials or other appropriate pseudonym or designation instead of full names of persons, specifically including juveniles and parents of juveniles, with a notation that the portions of the record have been so reproduced to preserve confidentiality and with appropriate references to the record.

809.19(3) (3) Respondent’s brief.

809.19(3)(a) (a)

809.19(3)(a)1. 1. The respondent shall file a brief within the later of any of the following:

809.19(3)(a)1.a. a. Thirty days after the date of service of the appellant’s brief, and 3 additional days under s. 801.15 (5) (a) if service is accomplished by mail.

809.19(3)(a)1.b. b. Thirty days after the date on which the appellant’s brief is filed.

809.19(3)(a)1.c. c. Thirty days after the date on which the record is filed in the office of the clerk.

809.19(3)(a)2. 2. The brief must conform with sub. (1), except that the statement of issues and the statement of the case may be excluded.

809.19(3)(a)3. 3. Within the time limits for filing a respondent’s brief, a party who has been designated as a respondent may file a statement with the court that it will not be filing a brief because its interests are not affected by the issues raised in the appellant’s brief or because its interests are adequately represented in another respondent’s brief.

809.19(3)(b) (b) The respondent may file with the respondent’s brief a supplemental appendix as a separate document. If the record is required by law to be confidential, the supplemental appendix must comply with the confidentiality requirements under sub. (2) (am). Any supplemental appendix shall include a table of contents that conforms with sub. (2) (a) and a copy of any unpublished opinion cited under s. 809.23 (3) (a) or (b). Each document to be included in the appendix shall be imaged at a resolution sufficient to ensure legibility.

809.19(4) (4) Reply brief.

809.19(4)(a) (a) The appellant shall file a reply brief, or a statement that a reply brief will not be filed, within the later of:

809.19(4)(a)1. 1. Fifteen days after the date of service of the respondent’s brief, and 3 additional days under s. 801.15 (5) (a) if service is accomplished by mail; or