809.80 NoteJudicial 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 NoteJudicial 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 NoteSubsection (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 NoteHowever, 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 NoteSubsection (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 NoteSubsection (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 NoteSubsection (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 NoteTo 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 NoteNOTE: 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 NoteComment, 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 NoteNOTE: 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 NoteComment, 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.
809.80 NoteSub. (2) does not require a paper party to provide service of a filed document on an electronic party. Because the clerk will be scanning all paper documents submitted by paper parties, electronic filing users will automatically receive notification of new paper documents without the need for traditional service. The current provision regarding service on the attorney general in certain cases has been moved to s. 809.802.
809.80 NoteUnder sub. (3), documents faxed by 11:59 pm are considered filed the same day. This gives paper parties the same filing hours as electronic parties. The appellate courts place a number of restrictions on filing by fax with respect to length, type of document, and payment of applicable fees. Persons wishing to file by fax should consult the clerk’s office for guidance.
809.80 NoteSince 2009, the appellate clerk has reviewed electronic briefs to make sure that rule requirements relating to form have been met. Under sub. (5), the clerk’s review includes review of all filed documents, both paper and electronic. The same review is applied to electronic documents under s. 809.801 (4) (b).
809.801809.801 Rule (Appellate electronic filing). 809.801(2)(a)(a) At the direction of the supreme court, the director shall implement an electronic filing system for the Wisconsin supreme court and court of appeals. The requirements of this section shall govern the electronic filing of documents in all types of actions and proceedings in the appellate courts. 809.801(2)(b)(b) At the direction of the supreme court, mandatory use of the electronic filing system shall be phased in according to a schedule set by the director until the system has been fully implemented. Information about the transition schedule shall be made readily available to the public in advance of its application. 809.801(2)(c)(c) Subject to the schedule in par. (b), mandatory users shall be required to use the appellate court electronic filing system for all new filings covered by the schedule. Electronic filing shall be required for all new actions and proceedings brought in the court of appeals and the supreme court, and for all new documents submitted in previously filed cases, except as otherwise provided in this section. 809.801(2)(e)(e) Electronic filing is limited to methods specifically approved by the director. The director may enter into an agreement with any state agency to allow electronic filing through a custom data exchange between the court case management system and the agency’s automated information system. Parties using a custom data exchange are considered mandatory users and are subject to the requirements of this section. 809.801(2)(f)(f) The procedures in this section shall be interpreted in a manner consistent with existing procedures. This section is not intended to limit the director’s approval of new technologies that accomplish the same functions. 809.801(2)(g)(g) All judicial officers, the clerk of court, and all court staff shall cooperate and assist with the implementation of electronic filing. 809.801(2)(h)(h) This section does not apply to documents required by law to be filed with court officials that are not filed in an action before the court. These documents may be filed by traditional methods unless otherwise required. 809.801(2)(k)(k) The procedures under this section are intended to be consistent with the procedures governing electronic filing and service in the circuit courts under s. 801.18. The circuit and appellate court electronic filing and service rules shall be interpreted consistently to the extent practicable. 809.801(3)(a)(a) The following individuals shall register for access to the electronic filing system prior to filing documents: 809.801(3)(b)(b) Parties who are not subject to par. (a) may voluntarily register to use the electronic filing system. 809.801(3)(c)(c) Except as otherwise provided, a party not subject to par. (a) who does not choose to participate in the electronic filing system under par. (b) shall file, serve, and receive paper documents by traditional methods. 809.801(3)(d)(d) All users shall register through the electronic filing system by executing a user agreement governing the system’s terms of use. To register, users must have the capability to produce, file, and receive electronic documents meeting the technical requirements of the electronic filing system. The electronic filing system shall make information on the technical requirements for filing readily available. By registering, users agree to electronically file all documents to the extent the electronic filing system can accept them. Users shall promptly provide notice through the electronic filing system of any change in the information provided for registration. 809.801(3)(e)(e) Upon completion of a properly executed user agreement under par. (d), the electronic filing system shall provide the user with a confidential, secure authentication procedure for access to the electronic filing system. This authentication procedure shall be used only by that user and by any agents or employees that the user authorizes. The same authentication procedure shall be used for all cases on which the user is an attorney or a party. The electronic filing system may reset authentication procedures as needed for administrative and security purposes. Upon learning that the confidentiality of the authentication procedure has been inadvertently or improperly disclosed, the user shall immediately report that fact through the electronic filing system. 809.801(3)(f)(f) After registering to use the electronic filing system, a user shall also opt in as an attorney or party on any case in which the user intends to participate. Users shall promptly opt in or out on each case upon beginning or ending appearance as an attorney or as a party. Filing agents appearing under par. (a) or (b) shall promptly opt in or out upon any change in the identity of a filing agent. Mandatory users who do not opt in on a case will not receive notices of activity or service of documents. 809.801(3)(g)(g) Attorneys appearing under SCR 10.03 (4) shall register following court approval of a motion to appear pro hac vice. 809.801(3)(i)(i) Voluntary users who wish to opt out of a particular case shall use the “opt out” feature of the electronic filing system or notify the clerk of court. The electronic filing system shall indicate that traditional methods must be used for this party for future filings and service. 809.801(3)(j)(j) The electronic filing system may provide a method for filing documents by individuals who are not parties to the case. It may also provide a method for professionals and agencies associated with the case to receive information and file reports. 809.801(4)(4) Time and effect of electronic filing. 809.801(4)(a)(a) The electronic filing system is an agent of the appellate courts for purposes of filing, receipt, service, and retrieval of electronic documents. The electronic filing system shall receive electronic filings 24 hours per day except when undergoing maintenance or repair. 809.801(4)(am)(am) A document is considered filed on a particular day if the submission is completed by 11:59 p.m. central time, as recorded by the electronic filing system, so long as it is subsequently accepted by the clerk of court upon review. Documents filed after 11:59 p.m. are considered filed the next day the clerk’s office is open. The expanded availability of time to file shall not affect the calculation of time under other statutes, rules, and court orders. The electronic filing system shall issue a confirmation that submission to the electronic filing system is complete. 809.801(4)(b)(b) When a document is submitted by a user to the electronic filing system, the electronic filing system shall transmit it to the appropriate clerk of court. The clerk may review documents for compliance with rule requirements relating to form, including caption, case number, format, length, and confidentiality, to determine if the documents should be accepted for filing. 809.801(4)(c)(c) If the clerk of court accepts a document for filing, it shall be considered filed with the court at the date and time of the original submission, as recorded by the electronic filing system. The electronic filing system shall issue a notice of activity to serve as proof of filing. When personal service or traditional service is not required, the notice of activity shall constitute service on the other users in the case. 809.801(4)(cm)(cm) If the clerk rejects the document following review, the user shall receive notification of the rejection. The user may be required to resubmit the document. 809.801(5)(5) Commencement of action or proceeding; filing of initiating documents. 809.801(5)(a)(a) Original actions, writs, and other matters commenced in the appellate courts. A user seeking to initiate an action or proceeding in an appellate court under s. 757.85 (5), 809.51, 809.70, or 809.71 shall first register with the electronic filing system as provided in sub. (3). The user shall then file an initiating document in the appellate court and provide the additional information requested by the electronic filing system. At the written or oral request of the filer, the clerk of court may reject the document for filings made in error, if the request is made before the clerk of court has accepted the document. Initiating documents shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method. 809.801(5)(b)(b) Petitions for review and petitions to bypass. A user seeking review by the supreme court under s. 809.60 or 809.62 shall file an initiating document in the supreme court. At the written or oral request of the filer, the clerk may reject the document for filings made in error, if the request is made before the clerk has accepted the document. Service shall be as provided in s. 809.60 (1) (b) or s. 809.62 (1m) (a) 2. 809.801(5)(c)(c) Appeals from circuit court. A user seeking to initiate an appeal under s. 809.10, 809.103, 809.104, 809.105, 809.107, 809.109, 809.30, 809.32, or 809.40 shall file a notice of appeal in the circuit court case appealed from as provided in that section. The clerk of circuit court shall transmit the notice of appeal to the clerk of the court of appeals. The docketing statement, motions under s. 809.41 (1) or (4), and statement on transcript, where applicable, shall also be filed with the clerk of circuit court and transmitted to the clerk of the court of appeals. Service shall be as provided in s. 809.10 (1) (h). 809.801(5)(d)(d) Petitions for leave to appeal. A user seeking leave to appeal under s. 809.50 shall file a petition in the court of appeals and provide the additional information requested by the electronic filing system. At the written or oral request of the filer, the clerk of the court of appeals may reject the document for filings made in error, if the request is made before the clerk has accepted the document. Service shall be as provided in s. 809.50 (1m). 809.801(5)(e)(e) Motions prior to appeal. A user moving the court for an order or other relief under s. 809.14 (5) before a notice of appeal is filed shall file an initiating document in the court of appeals and provide the additional information requested by the electronic filing system. At the written or oral request of the filer, the clerk of the court of appeals may reject the document for filings made in error, if the request is made before the clerk has accepted the document. Service shall be as provided in s. 809.14 (5) (b). 809.801(5)(f)(f) Respondent to opt in. A mandatory user who represents a responding party shall register to use the electronic filing system as provided under sub. (3) (d). After registering to use the electronic filing system, the user shall opt in on the case as provided in sub. (3) (f). 809.801(6)(6) Filing and service of subsequent documents. 809.801(6)(a)(a) The electronic filing system shall generate a notice of activity to the other users in the case when documents other than initiating documents are filed. Users shall access filed documents through the appellate electronic filing system. For documents that do not require personal or traditional service, the notice of activity is valid and effective service on the other users and shall have the same effect as traditional service of a paper document. 809.801(6)(b)(b) If a document requires personal or traditional service, it shall be served by traditional methods unless the responding party has consented in writing to accept electronic service or service by some other method. 809.801(6)(c)(c) Paper parties shall be served by traditional methods. The electronic filing system shall indicate which parties are to be served electronically and which are to be served by traditional methods. 809.801(6)(d)(d) Paper parties shall file documents with the court by traditional methods. The clerk of court shall image the documents and enter the imaged documents into the electronic filing system promptly. The notice of activity generated by the entry shall constitute service on the users in the case. Paper parties shall serve other paper parties by traditional methods. 809.801(6)(e)(e) An electronic notification that cannot be successfully delivered to a user shall be returned to the clerk of court. If the clerk cannot contact the user to update the information, the user shall be treated as a paper party until the problem is corrected. 809.801(6)(f)(f) For cases that were originally filed by traditional methods, all of the following apply: 809.801(6)(f)1.1. Subject to the schedule in sub. (2) (b), all mandatory users shall opt in on each case for which they continue to appear. Mandatory users who do not opt in on a case do not receive notices of activity or service of documents. 809.801(6)(f)2.2. For all cases that are in open status at the time electronic filing is mandated, the clerk of court shall send a notice by traditional methods to each party who has not opted in stating that the case has been converted to electronic filing. Mandatory users shall promptly opt in on these cases unless the user informs the court that the user is no longer appearing on behalf of the party. 809.801(6)(f)3.3. For all cases that were in closed status prior to the time electronic filing was mandated, no action is required until there is a subsequent filing or the court initiates further activity on the case, subject to all of the following: 809.801(6)(f)3.a.a. A mandatory user who wishes to file on a closed case shall opt in on the case and shall serve any paper parties by traditional methods. Any mandatory user so served shall promptly opt in on the case or shall notify the court that the user is no longer appearing on behalf of the party. 809.801(6)(f)3.b.b. A voluntary user who wishes to file electronically in a closed case shall opt in as a user on the case and shall serve any paper parties by traditional methods. Any mandatory user so served shall promptly opt in on the case or shall notify the court that the user is no longer appearing on behalf of the party. 809.801(6)(f)3.c.c. Service on a party who might be a voluntary user shall include a notice stating that the case has been converted to electronic filing and giving instructions for how to use the electronic filing system if the party chooses to do so. 809.801(7)(a)(a) Users shall make payments due to the clerk of court by check or through the court electronic payment system, unless otherwise ordered by the court or unless arrangements are made with the clerk of court. The court electronic payment system shall deposit the fees due to the clerk of court in the clerk’s account. 809.801(7)(b)(b) A user may submit a petition or motion for waiver of costs and fees under s. 814.29 (1) or (1m) using a form provided by the court for that purpose. If a document is submitted with a petition or motion for waiver, it shall be considered filed with the court on the date and time of the original submission if the waiver is subsequently granted by the court or other arrangements for payment are made. 809.801(8)(a)(a) The director shall make information about the technical requirements of the electronic filing system readily available to the public. Users are responsible for keeping up with these requirements and providing the necessary equipment, software, communication technology, and staff training. 809.801(8)(b)(b) Users shall provide any case management information needed to file documents. The electronic filing system shall reject a document for failure to include information in any one of the mandatory fields identified by the system. 809.801(8)(c)(c) Users shall format the appearance of all electronically filed documents in accordance with statutes and appellate court rules governing formatting of paper documents, including page limits. 809.801(8)(d)(d) The electronic filing system may set limits on the length or number of documents. Leave of court may be granted for traditional filing and service in appropriate cases. If a brief or appendix cannot be electronically filed as a single document due to the size limitations of the system, the user shall contact the clerk of court for assistance. 809.801(8)(e)(e) Electronically filed appendices, exhibits, and affidavits shall be filed in portable document format. All other electronically filed documents shall be filed in text-searchable portable document format. 809.801(8)(f)(f) Electronically filed documents may include bookmarks that allow the reader to navigate quickly within a document, such as from the table of contents to the corresponding sections of a brief or from the table of contents to the corresponding documents in an appendix. 809.801(8)(g)(g) Electronically filed documents may include hyperlinks that allow the reader to jump directly to another location in the document or to an external source of information, such as a published case or statute posted on the Internet. External hyperlinks shall be used only in accordance with security procedures set by the court. 809.801(8)(h)(h) Users shall format electronically filed documents to leave a blank space 2 inches by 2 inches square at the top right corner of the first page to accommodate the court file stamp. 809.801(9)(a)(a) Electronically filed documents have the same force and effect as documents filed by traditional methods. The electronic version constitutes the official record. No paper copy of an electronically filed document shall be sent to the court. 809.801(9)(b)(b) The duties of the clerk of court under this chapter and all other statutes, court rules, and procedures may be fulfilled through proper management of electronic documents as provided in this section. The requirements of statutes and rules that refer to paper copies, originals, mailing, and other traditional methods may be satisfied by transmission of documents through the electronic filing system. 809.801(9)(c)(c) Subject to the schedule in sub. (2) (b), the clerk of court shall maintain the official court record only in electronic format for all cases commenced after that date. Documents filed by traditional methods shall be electronically imaged and made part of the official record. The clerk of court may discard the paper copy pursuant to SCR 72.03 (3). Any official court record containing electronically filed documents must meet the operational standards set by SCR 72.05 for electronic records. 809.801(9)(d)(d) If a document is filed in a case in closed status, the clerk of court shall file the document electronically and convert that case to electronic format within a reasonable time. If conversion of the case would be unusually burdensome, the clerk of court may maintain the record in paper format with the permission of the court. 809.801(9)(e)(e) The clerk of court shall make the public portions of the electronic record available for viewing at the clerk of court’s office. The clerk of court shall make nonpublic portions of the electronic record available for viewing by authorized persons. 809.801(9)(f)(f) The clerk of court may provide either paper or electronic copies of pages from the court record. The clerk of court shall charge the per-page fee set by s. 809.25 (2) for electronic court records. 809.801(9)(g)(g) Certified copies of an electronic record may be obtained from the clerk of court’s office by traditional methods, as provided by s. 889.08. The electronic system may also make available a process for electronic certification of the court record. The seal of the court may be applied electronically. No use of colored ink or an impressed seal is required. 809.801(9)(h)(h) Parties filing by traditional methods shall file a copy of any document and not the original paper document. The court may require the submitting party to produce the original paper document if authenticity of document is challenged. If the court inspects the original paper document, it shall be retained as an exhibit as provided in SCR 72.03 (4). 809.801(9)(L)(L) For documentary exhibits submitted directly to the supreme court or court of appeals, parties shall submit a copy of the exhibit and not the original. The clerk of court shall image each documentary exhibit and enter the imaged document into the court record. Copies of documentary exhibits so imaged may be discarded as provided in SCR 72.03 (3). If inspection of the original document is necessary to the court proceeding, the court may order that the original document be produced. Any original document so produced shall be retained as an exhibit as provided in SCR 72.03 (4). 809.801(9)(m)(m) When an action or proceeding requires a record to be submitted by a party directly to the court, the record shall be imaged and electronically submitted using a method provided by the electronic filing system. The electronic record shall be the official record in the action or proceeding. If inspection of an original document is necessary to the court proceeding, the court may order that the original document be produced.
