Chapter 809

809.62 Note The last sentence of Rule 809.62 (6) is new and is intended to preserve, for review by the court of appeals following remand, any issue raised at the court of appeals but not decided by that court or by the supreme court on review. For instance, after a civil jury verdict, an insured party might appeal issues relating to liability and damages. The insurer might appeal issues relating to coverage and damages. If the court of appeals reverses on the liability issue, without deciding the coverage and damages issues, and the supreme court accepts review on the liability issue only, amended Rule 809.62 (6) preserves the damage and coverage issues raised in the court of appeals and identified in the petition or response for consideration by the court of appeals following remand and remittitur from the supreme court. Remand of a preserved issue will not occur if the supreme court’s decision renders the issue moot or of no effect. [Re Order No. 08-04 effective January 1, 2009]

809.62 Note NOTE: Sup. Ct. Order No. 08-15 and 08-18, 2009 WI 4, states “The following Comment to Wis. Stat. §§ (Rule) 809.62 (4) is not adopted but will be published and may be consulted for guidance in interpreting and applying the statute.”

809.62 Note Comment, 2008: The electronic copy of a petition for review, response, or appendix is in addition to and not a replacement for the paper copies required under this rule. The filing requirement is satisfied only when the requisite number of paper copies is filed; the transmittal of an electronic copy does not satisfy requirements for a timely filing. A petition for review shall be physically received in the clerk’s office within 30 days of the date of the decision of the court of appeals to invoke this court’s appellate jurisdiction. St. John’s Home v. Continental Casualty Co., 150 Wis. 2d 37, 441 N.W.2d 219 (1989), per curiam. [Re Order No. 08-15 and 08-18 effective July 1, 2009]

809.62 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.”

809.62 Note Comment, 2021: Under sub. (1m), an electronic filing user may electronically file a petition for review with the court without also submitting a physical paper copy. The appellate electronic filing rule, s. 809.801 (4) (ar), extends the time of filing until 11:59 p.m. for documents filed through the eFiling system. Taken together, these two provisions supersede the decision in St. John’s Home v. Continental Casualty Co., 150 Wis. 2d 37, 441 N.W.2d 219 (1989), per curiam, holding that a petition for review must be physically received by 5:00 p.m. on the 30th day following the filing of the court of appeals decision to invoke the supreme court’s appellate jurisdiction.

809.62 Note Sub. (6) is amended to avoid the implication that the respondent in a petition for cross-review may not raise issues other than those identified in the petition for review, consistent the language of sub. (3m) (b).

809.62 Annotation The supreme court has power to entertain petitions filed by the state in criminal cases. State v. Barrett, 89 Wis. 2d 367, 280 N.W.2d 114 (1979).

809.62 Annotation “Decision” under sub. (1) [now sub. (1g)] means the result, disposition, or mandate reached by a court, not the opinion. Neely v. State, 89 Wis. 2d 755, 279 N.W.2d 255 (1979).

809.62 Annotation If the court of appeals reverses a defendant’s conviction on grounds of insufficiency of evidence, the double jeopardy clause does not bar the supreme court from reviewing the case. State v. Bowden, 93 Wis. 2d 574, 288 N.W.2d 139 (1980).

809.62 Annotation The supreme court will not order a new trial if the majority concludes that there is prejudicial error but there is no majority with respect to a particular error. “Minority vote pooling” is rejected. State v. Gustafson, 121 Wis. 2d 459, 359 N.W.2d 920 (1985).

809.62 Annotation Petitions for review must be filed by 5:00 p.m. on the 30th day following the filing of the court of appeals decision. St. John’s Home of Milwaukee v. Continental Casualty Co., 150 Wis. 2d 37, 441 N.W.2d 219 (1989).

809.62 Annotation Citation to an unpublished court of appeals decision to show conflict between districts for purposes of sub. (1) (d) [now sub. (1r) (d)] is appropriate. State v. Higginbotham, 162 Wis. 2d 978, 471 N.W.2d 24 (1991).

809.62 Annotation Issues before the court are issues presented in the petition for review and not the discrete arguments that may be made, pro or con, in the disposition of the issue. State v. Weber, 164 Wis. 2d 788, 476 N.W.2d 867 (1991).

809.62 Annotation Together, ss. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review, provided counsel does not determine the appeal to be without merit. If counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 548 N.W.2d 45 (1996), 95-1096.

809.62 Annotation The 30-day deadline for receipt of a petition for review is tolled on the date that a pro se prisoner delivers a correctly addressed petition to the proper prison authorities for mailing. State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292, 00-0853. See also State ex rel. Brown v. Bradley, 2003 WI 14, 259 Wis. 2d 630, 658 N.W.2d 427, 01-3324.

809.62 Annotation Petitions for Review by the Wisconsin Supreme Court. Karch. 1979 WLR 1176.

809.62 Annotation Discretionary review by the Wisconsin Supreme Court. Wilson & Pokrass. WBB Feb. 1983.

809.63 809.63 Rule (Procedure in supreme court). When the supreme court takes jurisdiction of an appeal or other proceeding, the rules governing procedures in the court of appeals are applicable to proceedings in the supreme court unless otherwise ordered by the supreme court in a particular case.

809.63 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).

809.64 809.64 Rule (Reconsideration). A party may seek reconsideration of the judgment or opinion of the supreme court by filing a motion under s. 809.14 for reconsideration within 20 days after the date of the decision of the supreme court.

809.64 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390 s. 252; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii.

809.64 Note Judicial Council Committee’s Note, 1978: Rule 809.64 replaces former Rules 251.65, 251.67 to 251.69, which provided for motions for rehearing. The necessity for the filing of briefs on a motion for reconsideration as required by former Rule 251.67 is eliminated. The matter will be considered on the motion and supporting and opposing memoranda as with any other motion. The term “reconsideration” is used rather than rehearing because in a case decided without oral argument there has been no initial hearing. [Re Order effective July 1, 1978]

809.64 Note Judicial Council Note, 2001: This section has been changed to specify that the time limit for filing motions for reconsideration of supreme court opinions is calculated from the date, not the filing, of the decision. [Re Order No. 00-02 effective July 1, 2001]

809.64 Annotation A supreme court order denying a petition to review a court of appeals decision was neither a judgment nor an opinion. Archdiocese of Milwaukee v. City of Milwaukee, 91 Wis. 2d 625, 284 N.W.2d 29 (1979).

809.64 Annotation A motion mailed within the 20-day period, but received after the period expired, was not timely and did not merit exemption from the time requirement. Lobermeier v. General Telephone Co. of Wisconsin, 120 Wis. 2d 419, 355 N.W.2d 531 (1984).

subch. VII of ch. 809 SUBCHAPTER VII

ORIGINAL JURISDICTION PROCEDURE
IN SUPREME COURT

809.70 809.70 Rule (Original action).

809.70(1) (1) A person may request the supreme court to take jurisdiction of an original action by filing a petition which may be supported by a memorandum. The petition shall be served on each party and proposed respondent by traditional methods as provided in s. 809.80 (2). The petition must contain all of the following:

809.70(1)(a) (a) A statement of the issues presented by the controversy.

809.70(1)(b) (b) A statement of the facts necessary to an understanding of the issues.

809.70(1)(c) (c) A statement of the relief sought.

809.70(1)(d) (d) A statement of the reasons why the court should take jurisdiction.

809.70(1m) (1m) The clerk of court shall docket the petition upon receipt of the items referred to in sub. (1). The clerk shall assign a case number, create a notice that the petition has been docketed, and send the notice to the parties by traditional methods.

809.70(2) (2) The court may deny the petition or may order the respondent to respond and may order oral argument on the question of taking original jurisdiction. The respondent shall file a response, which may be supported by a memorandum, within 14 days after the service of the order.

809.70(3) (3) The court, upon a consideration of the petition, response, supporting memoranda and argument, may grant or deny the petition. The court, if it grants the petition, may establish a schedule for pleading, briefing and submission with or without oral argument.

809.70 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1995 a. 225; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

809.70 Note Judicial Council Note, 2001: The time limit in sub. (2) was changed from 10 to 14 days. Please see the comment to s. 808.07. [Re Order No. 00-02 effective July 1, 2001]

809.70 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.”

809.70 Note Comment, 2021: A proceeding under this section is a new action that must be served on the respondents by the initiating parties using traditional methods.

809.71 809.71 Rule (Supervisory writ).

809.71(1) (1) A person may request the supreme court to exercise its supervisory jurisdiction over a court and the judge presiding therein or other person or body by filing a petition in accordance with s. 809.51. The petition shall be served on each party and proposed respondent, and if applicable, upon the originating court or tribunal, by traditional methods as provided in s. 809.80 (2). A person seeking a supervisory writ from the supreme court shall first file a petition for a supervisory writ in the court of appeals under s. 809.51 unless it is impractical to seek the writ in the court of appeals. A petition in the supreme court shall show why it was impractical to seek the writ in the court of appeals or, if a petition had been filed in the court of appeals, the disposition made and reasons given by the court of appeals.

809.71(2) (2) The clerk of court shall docket the petition upon receipt of the items referred to in sub. (1). The clerk shall assign a case number, create a notice that the petition has been docketed, transmit the notice of docketing to the clerk of circuit court if applicable, and send the notice to the parties by traditional methods.

809.71 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390 s. 252; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

809.71 Note Judicial Council Committee’s Note, 1981: The supreme court will not exercise its supervisory jurisdiction where there is an adequate alternative remedy. Unless the court of appeals is itself the object of the supervisory writ, usually there is an adequate alternative remedy of applying to the court of appeals under Rule 809.51 for the supervisory writ. The amendment to Rule 809.71 establishes that before a person may request the supreme court to exercise its supervisory jurisdiction, the person must first seek the supervisory writ in the court of appeals, unless to do so is impractical. Following the decision of the court of appeals, the amendment does not preclude the supreme court from considering a petition for review under Rule 809.62 or a petition for supervisory writ under Rule 809.71, depending upon the circumstances and the petitioner’s ability to establish the respective governing criteria. [Re Order effective Jan. 1, 1982]

809.71 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.”

809.71 Note Comment, 2021: Supervisory writs do not always arise from a pending case through which the parties can be served electronically. A proceeding under this section is a new action that must be served on the respondents by the initiating parties using traditional methods.

809.71 Annotation A party requesting a supervisory writ under this section must demonstrate that: 1) an appeal is an inadequate remedy; 2) grave hardship or irreparable harm will result; 3) the duty of the trial court is plain, and it acted or intends to act in violation of that duty; and 4) the request for relief is made promptly and speedily. State ex rel. DNR v. Court of Appeals, 2018 WI 25, 380 Wis. 2d 354, 909 N.W.2d 114, 16-1980.

809.71 Annotation The term “supervisory writ” is both: 1) the general term used in petitioning the court of appeals to exercise its constitutional supervisory authority and in petitioning the supreme court to exercise its constitutional superintending authority; and 2) a new writ the supreme court devised independent of the traditional common law writs. State ex rel. CityDeck Landing LLC v. Circuit Court, 2019 WI 15, 385 Wis. 2d 516, 922 N.W.2d 832, 18-0291.

809.71 Annotation When the circuit court in this case ordered the arbitration of a private dispute stayed until the court could decide an insurance coverage dispute, the plaintiff fulfilled all four criteria for the supreme court to issue a supervisory writ under this section. State ex rel. CityDeck Landing LLC v. Circuit Court, 2019 WI 15, 385 Wis. 2d 516, 922 N.W.2d 832, 18-0291.

subch. VIII of ch. 809 SUBCHAPTER VIII

MISCELLANEOUS PROCEDURES IN COURT OF APPEALS AND SUPREME COURT

809.80 809.80 Rule (Filing and service of documents by traditional methods).

809.80(1) (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.

809.80(2) (2) Service by traditional methods.

809.80(2)(a) (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.

809.80(2)(bm) (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.

809.80(2)(c) (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.

809.80(2)(d) (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).

809.80(2)(e) (e) Paper parties shall be served by traditional methods. Paper parties shall serve other paper parties by traditional methods.

809.80(3) (3) Time of filing by traditional methods.

809.80(3)(a) (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.

809.80(3)(b) (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:

809.80(3)(b)1. 1. Deposited in the United States mail for delivery to the clerk by first-class mail, or other class of mail that is at least as expeditious, postage pre-paid; or

809.80(3)(b)2. 2. Delivered to a 3rd-party commercial carrier for delivery to the clerk within 3 calendar days.

809.80(3)(c) (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.

809.80(3)(d) (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.

809.80(3)(e) (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.

809.80(4) (4) Proof of filing date for brief or appendix filed by traditional methods.

809.80(4)(a) (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.

809.80(4)(b) (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.

809.80(4)(c) (c) The date shown on a postage meter does not establish that the document was mailed on that date.

809.80(5) (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.

809.80(6) (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.

809.80 History 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.

809.80 Note 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]

809.80 Note 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]

809.80 Note 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]

809.80 Note 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 affected merely to ensure that a brief was actually received by the clerk before the expiration of the filing deadline.

809.80 Note 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.

809.80 Note 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.

809.80 Note 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.

809.80 Note 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.

809.80 Note 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]

809.80 Note 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).

809.80 Note 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.”

809.80 Note 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.

809.80 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.”

809.80 Note 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.