Chapter 809

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

809.19(4)(a)2. 2. Fifteen days after the date on which the respondent’s brief is filed.

809.19(4)(b) (b) The reply brief under par. (a) shall comply with sub. (1) (e) and (f). If an unpublished opinion is cited under s. 809.23 (3) (a) or (b), a copy of the opinion shall be provided in an appendix to the reply brief.

809.19(5) (5) Consolidated, joint, and multiple party appeals.

809.19(5)(a) (a) Each appellant in consolidated appeals or a joint appeal and each co-appellant may file a separate brief or a joint brief with another appellant or co-appellant. Appellants and co-appellants represented by the same counsel shall file a joint brief. A joint brief must not exceed the page allowance for a single appellant.

809.19(5)(b) (b) In appeals involving more than one respondent, including consolidated cases, each respondent may file a separate brief or a joint brief with another respondent. Respondents represented by the same counsel shall file a joint brief. A joint brief must not exceed the page allowance for a single respondent.

809.19(5)(c) (c) When multiple appellants’ briefs have been filed, only a single respondent’s brief is allowed by each respondent or by respondents filing a joint brief. When multiple respondents’ briefs have been filed, only a single reply brief is allowed by an appellant or co-appellant or by appellants and co-appellants who filed a joint brief.

809.19(5)(d) (d) If separate briefs are filed by multiple appellants or co-appellants, the time for filing and serving the respondent’s brief shall not commence until all briefs on behalf of all appellants and co-appellants have been filed. If separate briefs are filed by multiple respondents, the time for filing and serving the reply brief shall not commence until all briefs on behalf of all respondents have been filed.

809.19(6) (6) Cross-appeal. Briefing in a cross-appeal shall be as follows:

809.19(6)(a) (a) An appellant-cross-respondent shall file a brief titled “Appellant’s Brief” within the time specified by, and in compliance with, the requirements of subs. (1) and (2).

809.19(6)(b) (b)

809.19(6)(b)1. 1. A respondent-cross-appellant shall file a brief titled “Combined Brief of Respondent and Cross-Appellant” within the later of any of the following:

809.19(6)(b)1.a. a. Thirty days after the date of service of the appellant-cross-respondent’s brief, and 3 additional days under s. 801.15 (5) (a) if service is accomplished by mail.

809.19(6)(b)1.b. b. Thirty days after the date on which the appellant-cross-respondent’s brief is filed.

809.19(6)(b)1.c. c. Thirty days after the date on which the record is filed in the office of the clerk.

809.19(6)(b)2. 2. The respondent portion of the combined brief shall comply with the requirements of this section for a respondent’s brief, including the length limitation for such a brief set forth in sub. (8) (c) 1. The cross-appellant portion of the combined brief shall comply with the requirements of subs. (1) and (2) for an appellant’s main brief, including the length limitation for such a brief set forth in sub. (8) (c) 1., except that the requirements of sub. (1) (c) and (d) may be omitted, the cross-appellant portion of the combined brief shall be preceded by a white cover page titled “Cross-Appellant’s Brief,” and a signature shall be required only at the conclusion of the cross-appellant portion of the combined brief.

809.19(6)(c) (c)

809.19(6)(c)1. 1. An appellant-cross-respondent shall file a brief titled “Combined Brief of Appellant and Cross-Respondent” within the later of:

809.19(6)(c)1.a. a. Thirty days after the date of service of the respondent-cross-appellant’s brief, and 3 additional days under s. 801.15 (5) (a) if service is accomplished by mail; or

809.19(6)(c)1.b. b. Thirty days after the date on which the respondent-cross-appellant’s brief is filed.

809.19(6)(c)2. 2. The appellant portion of the combined brief shall comply with the requirements of sub. (4) for a reply brief, including the length limitation for such a brief set forth in sub. (8) (c) 2. The cross-respondent portion of the combined brief shall comply with the requirements of sub. (3) for a respondent’s brief, including the length limitation for such a brief set forth in sub. (8) (c) 1., except that the requirement of sub. (1) (c) may be omitted, the cross-respondent portion of the combined brief shall be preceded by a white cover page titled “Cross-Respondent’s Brief,” and a signature shall be required only at the conclusion of the cross-respondent portion of the combined brief.

809.19(6)(d) (d) A respondent-cross-appellant shall file either a reply brief titled “Reply Brief of Cross-Appellant” in the form required by sub. (4) for reply briefs, or a statement that a reply brief will not be filed, within the later of:

809.19(6)(d)1. 1. Fifteen days after the date of service of the appellant-cross-respondent’s brief, and 3 additional days under s. 801.15 (5) (a) if service is accomplished by mail; or

809.19(6)(d)2. 2. Fifteen days after the date on which the appellant-cross-respondent’s brief is filed.

809.19(6)(e) (e) Each part of a combined brief shall comply with the form and length certification requirements of sub. (8g).

809.19(6)(f) (f) A respondent-cross-appellant must comply with the same appendix rules as an appellant under subs. (2) (a) and (am) and (8g), except that a respondent-cross-appellant shall not be required to include materials that are contained in the appellant’s appendix.

809.19(6)(g) (g) Subsection (5) applies to appeals involving multiple appellants-cross respondents or respondents-cross appellants.

809.19(6m) (6m) Guardian ad litem brief. If the guardian ad litem chooses to participate in an appeal and takes the position of an appellant, the guardian ad litem’s brief shall be filed within 40 days after the filing in the court of the record on appeal. If the guardian ad litem chooses to participate in an appeal and takes the position of a respondent, the guardian ad litem’s brief shall be filed within 30 days after service of the appellant’s brief. In an appeal related to the termination of parental rights, a guardian ad litem shall follow the filing procedures set forth under s. 809.107 (6) (d). If an unpublished opinion is cited under s. 809.23 (3) (a) or (b), a copy of the opinion shall be provided in an appendix to the brief. If the guardian ad litem chooses not to participate in an appeal of an action or proceeding, the guardian ad litem shall file with the court a statement of reasons for not participating within 20 days after the filing of the appellant’s brief. The time for filing and serving the brief due after the guardian ad litem’s brief shall not commence until all briefs of the parties in the position taken by the guardian ad litem have been filed.

809.19(7) (7) Nonparty briefs.

809.19(7)(a) (a) A person not a party may by motion request permission to file a brief. The motion shall identify the interest of the person and state why a brief filed by that person is desirable.

809.19(7)(b) (b) If the brief will support or oppose a petition under s. 809.62 or 809.70, the brief shall accompany the motion and shall be filed within the time permitted for the opposing party to file a response to the petition. If an unpublished opinion is cited under s. 809.23 (3) (a) or (b), a copy of the opinion shall be provided in an appendix to the brief.

809.19(7)(c) (c) Except as provided in par. (b), the motion shall be filed not later than 14 days after the respondent’s brief is filed, and the brief shall be filed within the time specified by the court. If an unpublished opinion is cited under s. 809.23 (3) (a) or (b), a copy of the opinion shall be provided in an appendix to the brief.

809.19(7)(d) (d) A nonparty brief shall comply with sub. (1) (e) and (f).

809.19(8) (8) Number, form, pagination, and length of briefs and appendices.

809.19(8)(a) (a) Number.

809.19(8)(a)1. 1. For electronic filing users, each brief or appendix shall be filed and served using the electronic filing system as provided in s. 809.801 (6) (a). The filing party shall serve one copy of the brief and appendix on each paper party by traditional methods.