Chapter 808

808.03 Annotation The court of appeals shall grant all petitions for interlocutory appeal arising from a circuit court summary judgment order denying a state official’s claim of qualified immunity under 42 USC 1983 if the order is based on an issue of law. Whether to grant such a petition is discretionary when it arises from a motion to dismiss. Powell v. Cooper, 2001 WI 10, 241 Wis. 2d 153, 622 N.W.2d 265, 98-0012.

808.03 Annotation In the family law context, an order resolving the merits of a child support dispute, but not an attorney’s fee issue, is final within the meaning of sub. (1). Campbell v. Campbell, 2003 WI App 8, 259 Wis. 2d 676, 659 N.W.2d 106, 02-0426.

808.03 Annotation A circuit court order is a final order when: 1) it disposes of the entire matter in litigation under substantive law; and 2) the circuit court considered it to be the last document it would enter in the litigation. Contardi v. American Family Mutual Insurance Co., 2004 WI App 104, 273 Wis. 2d 509, 680 N.W.2d 828, 03-2284.

808.03 Annotation When an order or a judgment is entered that disposes of all of the substantive issues in the litigation, as to one or more parties, as a matter of law, the circuit court intends it to be the final document for purposes of appeal, notwithstanding the label it bears or subsequent actions taken by the circuit court. If an order for judgment meets this criterion, it is a final order. Any historic distinction between an order and a judgment is not dispositive. Harder v. Pfitzinger, 2004 WI 102, 274 Wis. 2d 324, 682 N.W.2d 398, 03-1817.

808.03 Annotation An order granting a plea withdrawal is not final because it plainly anticipates further proceedings in the criminal case. Accordingly, the state was not obligated to file an appeal within the 45-day time period, and its failure to do so was not waiver. State v. Williams, 2005 WI App 221, 287 Wis. 2d 748, 706 N.W.2d 355, 04-1985.

808.03 Annotation A document constitutes the final document for purposes of appeal when it: 1) has been entered by the circuit court; 2) disposes of the entire matter in litigation as to one or more parties; and 3) states on the face of the document that it is the final document for purposes of appeal. When a document would otherwise constitute the final document, but for not including a finality statement, courts will construe the document liberally in favor of preserving the right to appeal. Tyler v. Riverbank, 2007 WI 33, 299 Wis. 2d 751, 728 N.W.2d 686, 05-2336.

808.03 Annotation Deciding a case in the sense of merely analyzing legal issues and resolving questions of law does not dispose of an entire matter in litigation as to one or more parties. The court must act by explicitly dismissing or adjudging the entire matter in litigation as to one or more parties. In order to “dispose” of the matter under sub. (1), a memorandum decision must contain an explicit statement either dismissing or adjudging the entire matter in litigation as to one or more parties. Wambolt v. West Bend Mutual Insurance Co., 2007 WI 35, 299 Wis. 2d 723, 728 N.W.2d 670, 05-1874.

808.03 Annotation Effective September 1, 2007, final orders and judgments shall state that they are final for purposes of appeal. A document does not fulfill this requirement with a particular phrase or magic words, but must make clear on its face, that it is the document from which appeal may follow as a matter of right under sub. (1). Absent such a statement, appellate courts should liberally construe ambiguities to preserve the right of appeal. Wambolt v. West Bend Mutual Insurance Co., 2007 WI 35, 299 Wis. 2d 723, 728 N.W.2d 670, 05-1874.

808.03 Annotation Under Wambolt, 2007 WI 35, neither the label of the document nor the circuit court’s subsequent action (e.g., entering a judgment) is dispositive of the document’s finality. An order may meet the finality criteria, notwithstanding the presence in the order of a reference to a future judgment or the entry of that judgment. Ecker Bros. v. Calumet County, 2008 WI App 81, 312 Wis. 2d 244, 752 N.W.2d 356, 07-2109.

808.03 Annotation A trial court order remanding a case to an administrative agency was not a final order within the meaning of sub. (1) when it did not contain an explicit statement adjudicating the entire matter in litigation as to any party and it scheduled a hearing upon “return” from the agency for the purpose of reviewing the issues identified for consideration on remand. Citizens For U, Inc. v. DNR, 2010 WI App 21, 323 Wis. 2d 767, 780 N.W.2d 194, 08-2537.

808.03 Annotation A traffic forfeiture case qualifies as having been “prosecuted in circuit court” within the meaning of sub. (1) (c) when the case has been appealed to the circuit court following an earlier municipal court decision. It follows that a docket entry of the case’s disposition constitutes a final appealable judgment under sub. (1) (c). Village of McFarland v. Zetzman, 2012 WI App 49, 340 Wis. 2d 700, 811 N.W.2d 822, 11-1440.

808.03 Annotation The prevailing party’s claim for an award of attorney fees due under a contract does not affect the finality of a judgment or order that disposes of the entire matter in litigation as to one or more of the parties. There is no distinction between a claim for attorney fees based on a contract as opposed to one based on a statute. When the recovery of attorney fees is authorized by a statute or a contract, the attorney fees are litigation “disbursements and fees allowed by law” as set forth in s. 814.04 (2). McConley v. T.C. Visions, Inc., 2016 WI App 74, 371 Wis. 2d 658, 885 N.W.2d 816, 16-0671.

808.03 Annotation A proceeding to determine whether a defendant is competent is separate and distinct from the defendant’s underlying criminal proceeding. Thus, an order that a defendant is not competent to proceed is a final order issued in a special proceeding and is appealable as of right pursuant to sub. (1). State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141, 16-2017.

808.03 Annotation Under Voss, 141 Wis. 267 (1910), the test to be applied in determining the nature of any judicial remedy, as regards whether it is a special proceeding, is whether it is a mere proceeding in an action, or one independently thereof or merely connected therewith. The latter two belong to the special class and the other does not. However, under this test, special proceedings need not occur outside of the underlying actions. L.G. v. Aurora Residential Alternatives, Inc., 2019 WI 79, 387 Wis. 2d 724, 929 N.W.2d 590, 18-0656.

808.03 Annotation An application to stay pursuant to s. 788.02 is a special proceeding within the meaning of sub. (1). When a circuit court addresses such an application, the court resolves an issue separate and distinct from the issues presented in the pending lawsuit, but which is related or connected to that lawsuit. Thus, a circuit court order denying a request to compel arbitration and stay a pending lawsuit is final for the purposes of appeal. L.G. v. Aurora Residential Alternatives, Inc., 2019 WI 79, 387 Wis. 2d 724, 929 N.W.2d 590, 18-0656.

808.03 Annotation In this case, the appellants waived their right to appeal by entering into a consent judgment pursuant to a settlement agreement that contained no preservation of appeal rights and that expressly recited an intent to resolve the case with finality. When a party enters into a consent judgment, as opposed to a mere stipulation on a particular issue, that party is ordinarily considered to have waived any right to appeal from such judgment. Roberts Premier Design Corp. v. Adams, 2021 WI App 52, 399 Wis. 2d 151, 963 N.W.2d 796, 19-1706.

808.03 Annotation The circuit court order granting summary judgment in favor of the city, permitting the city to raze the defendant’s building and awarding the cost of the razing to the city, was a final order under sub. (1). The order explicitly granted the city all of the relief the city requested, and all that remained was the execution of the order, namely the razing at the defendant’s expense and the calculation of the cost of the razing. City of New Lisbon v. Muller, 2023 WI App 65, 410 Wis. 2d 309, 1 N.W.3d 761, 22-1683.

808.03 Annotation Wisconsin Court of Appeals Appellate Jurisdiction. Klein & Leavell. Wis. Law. Sept. 1991.

808.03 Annotation Interlocutory Appeals in Wisconsin. Towers, Arnold, Tess-Mattner, & Levenson. Wis. Law. July 1993.

808.03 Annotation Understanding the New Rules of Appellate Procedure. Stephens. Wis. Law. July 2001.

808.03 Annotation How to Appeal Mid-litigation Decisions. Alderman. Wis. Law. Dec. 2014.

808.04 808.04 Time for appeal to the court of appeals.

808.04(1) (1) Initiating an appeal. An appeal to the court of appeals must be initiated within 45 days of entry of a final judgment or order appealed from if written notice of the entry of a final judgment or order is given within 21 days of the final judgment or order as provided in s. 806.06 (5), or within 90 days of entry if notice is not given, except as provided in this section or otherwise expressly provided by law. Time limits for seeking review of a nonfinal judgment or order are established in s. 809.50.

808.04(1m) (1m) An appeal by a record subject under s. 19.356 shall be initiated within 20 days after the date of entry of the judgment or order appealed from.

808.04(1s) (1s) An appeal under s. 781.10 (2) (d) 5. shall be initiated within 30 days after the date of entry of the judgment or order appealed from.

808.04(2) (2) An appeal under s. 227.60 or 799.445 shall be initiated within 15 days after entry of judgment or order appealed from.

808.04(3) (3) Except as provided in subs. (4) and (7), an appeal in a proceeding under s. 971.17, a criminal case, or a case under ch. 48, 51, 55, 938, or 980 shall be initiated within the time period specified in s. 809.30 (2) or 809.32 (2), whichever is applicable.

808.04(4) (4) Except as provided in sub. (7m), an appeal by the state in a proceeding under s. 971.17, a criminal case under s. 974.05, or a case under ch. 48, 938, or 980 shall be initiated within 45 days of entry of the judgment or order appealed from.

808.04(6) (6) When a party to an action or special proceeding dies during the period allowed for appeal, the time to appeal is the time permitted by law or 120 days after the party’s death, whichever is later. If no personal representative qualifies within 60 days after the party’s death, any appellant may have a personal representative appointed under s. 856.07 (2).

808.04(7) (7) An appeal by a party other than the state from a judgment or order granting adoption shall be initiated by filing the notice required by s. 809.30 (2) (b) within 40 days after the date of entry of the judgment or order appealed from. Notwithstanding s. 809.82 (2) (a), this time period may not be enlarged.

808.04(7m) (7m) An appeal from a judgment or order terminating parental rights or denying termination of parental rights shall be initiated by filing the notice required by s. 809.107 (2) within 30 days after the date of entry of the judgment or order appealed from.

808.04(7p) (7p) An appeal from a judgment or order under s. 809.104 shall be initiated by filing the notice required by s. 809.104 (2) (b) within 30 days after the date of entry of the judgment or order appealed from.

808.04(8) (8) If the record discloses that the judgment or order appealed from was entered after the notice of appeal or intent to appeal was filed, the notice shall be treated as filed after that entry and on the day of the entry.

808.04 History History: 1977 c. 187; 1979 c. 32 s. 92 (9), (14); 1979 c. 89, 221; 1981 c. 152; 1981 c. 314 ss. 130, 146; 1983 a. 183, 219; 1983 a. 491 s. 23; 1985 a. 182 s. 57; Sup. Ct. Order, 130 Wis. 2d xi, xix (1986); Sup. Ct. Order, 136 Wis. 2d xxv (1987); 1989 a. 56 s. 259; 1989 a. 192; 1991 a. 39; Sup. Ct. Order, 168 Wis. 2d xix (1992); 1993 a. 395; 1995 a. 77, 275; 1997 a. 133; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; 2003 a. 47; 2005 a. 293, 434; 2009 a. 26; 2017 a. 58, 258; 2023 a. 16.

808.04 Note NOTE: 2003 Wis. Act 47 contains explanatory notes.

808.04 Cross-reference Cross-reference: See s. 809.50 for time to file permissive appeals.

808.04 Note Judicial Council Note, 1983: Sub. (2) requires expedited initiation of appeals in recall and eviction cases as well as cases in which the validity of a state law is attacked in federal district court. Sub. (3) references the appeal deadline for criminal, juvenile, mental commitment and protective placement appeals. Sub. (4) references the appeal deadline for appeals by the state in criminal and children’s code cases. [Bill 151-S]

Effective date note Judicial Council Note, 1986: The amendment to sub. (1) clarifies the time limit for notice of entry by cross-referencing s. 806.06 (5). [Re Order eff. 7-1-86]

Effective date note Judicial Council Note, 1986: Subs. (3) and (4) are amended by removing references to a repealed statute. Sub. (7) requires a party other than the state to commence an appeal from a judgment or order terminating parental rights or granting an adoption by filing notice of intent to pursue relief in the trial court within 40 days after entry. It also prohibits enlargement of this time by the court of appeals. [Re Order eff. 7-1-87]

808.04 Note Judicial Council Note, 1992: Subsection (8) is analogous to Rule (4) (a) (2) of the Federal Rules of Appellate Procedure. It is intended to avoid the delay, confusion and prejudice which can result from dismissing appeals solely because they are filed before the judgment or order appealed from is entered. Appeals from judgments or orders which have not been entered are still dismissable. [Re Order effective July 1, 1992]

808.04 Note Judicial Council Note, 2001: The word “final” has been inserted before “judgment or order” in sub. (1). The amendment specifies that the 45- or 90-day time limit applies in appeals from final orders and the 14-day time limit in s. 809.50 applies to appeals from nonfinal orders. [Re Order No. 00-02 effective July 1, 2001]

808.04 Annotation Notice under sub. (1) may not be given before judgment is entered. Sub-Zero Freezer Co. v. Manhattan Life Insurance Co., 90 Wis. 2d 76, 279 N.W.2d 492 (Ct. App. 1979).

808.04 Annotation When a written notice of entry of judgment showed the incorrect date of entry, the time to appeal was not shortened under sub. (1). Mock v. Czemierys, 113 Wis. 2d 207, 336 N.W.2d 188 (Ct. App. 1983).

808.04 Annotation To shorten the appeal period under sub. (1), a formal, captioned, and signed notice of entry of judgment stating the date of entry must be filed and served on an opposing party within 21 days of the entry date. Soquet v. Soquet, 117 Wis. 2d 553, 345 N.W.2d 401 (1984).

808.04 Annotation The date stamped on the judgment did not control as to the date of actual filing. Litrenta v. In re Estate of Ristau, 144 Wis. 2d 421, 424 N.W.2d 203 (1988).

808.04 Annotation A summary contempt proceeding is not “prosecuted by the state,” and appeal is pursuant to sub. (1). McGee v. Racine County Circuit Court, 150 Wis. 2d 178, 441 N.W.2d 308 (Ct. App. 1989).

808.04 Annotation Under sub. (1), notice of entry of judgment must be given within 21 days of the entry of the judgment, not of its signing, consistent with s. 806.06 (5). Linnmar, Inc. v. First Enterprises, Inc., 161 Wis. 2d 706, 468 N.W.2d 753 (Ct. App. 1991).

808.04 Annotation If a motion for reconsideration is filed under s. 805.17 (3), the 45-day time for appeal under sub. (1) applies beginning upon disposal of the motion. Salzman v. DNR, 168 Wis. 2d 523, 484 N.W.2d 337 (Ct. App. 1992).

808.04 Annotation Strict compliance with the procedures for providing notice of entry of judgment is required. Notice of entry of judgment is ineffective if it is mailed to an incorrect address. Nichols v. Conlin, 198 Wis. 2d 287, 542 N.W.2d 194 (Ct. App. 1995), 95-2776.

808.04 Annotation Proceedings under ch. 980 are civil and not criminal. State v. Brunette, 212 Wis. 2d 139, 567 N.W.2d 647 (Ct. App. 1997), 96-2351.

808.04 Annotation When a judge normally presides in one county but is assigned by substitution to a case filed in another county, the filing and entry for appeal purposes occur when the document comes into the possession of the clerk of court in the county in which the case was commenced. State v. Williams, 230 Wis. 2d 50, 601 N.W.2d 838 (Ct. App. 1999), 98-3338.

808.04 Annotation Sub. (8) is applicable to appeals under s. 66.0703 as the result of the application of s. 801.02 (2), which makes chs. 801 to 847 applicable in all special proceedings. Mayek v. Cloverleaf Lakes Sanitary District #1, 2000 WI App 182, 238 Wis. 2d 261, 617 N.W.2d 235, 99-2895.

808.04 Annotation An attorney who is sanctioned by the circuit court for misconduct in a client’s case must file the attorney’s own notice of appeal in order to challenge the sanction and may not intervene in the client’s appeal if the notice of appeal deadline has been missed. Absent the attorney’s filing of a notice of appeal, the court of appeals lacks jurisdiction to consider a challenge to a sanction for the attorney’s misconduct. Ziebell v. Ziebell, 2003 WI App 127, 265 Wis. 2d 664, 666 N.W.2d 107, 02-2552.

808.04 Annotation A circuit court order is a final order when: 1) it disposes of the entire matter in litigation under substantive law; and 2) the circuit court considered it to be the last document it would enter in the litigation. Contardi v. American Family Mutual Insurance Co., 2004 WI App 104, 273 Wis. 2d 509, 680 N.W.2d 828, 03-2284.

808.04 Annotation The proper framework in which to examine the finality of the orders in this case issued by the circuit court over the course of postjudgment proceedings following remittitur was by focusing on whether the orders resulted in the immediate transfer of title to property. If an order led to such a result, it was a final order for purpose of appeal, and the time for review was immediate. Orlando Residence, Ltd. v. Nelson, 2013 WI App 81, 348 Wis. 2d 565, 834 N.W.2d 416, 12-1528.

808.05 808.05 Bypass. The supreme court may take jurisdiction of an appeal or any other proceeding pending in the court of appeals if:

808.05(1) (1) It grants direct review upon a petition to bypass filed by a party;

808.05(2) (2) It grants direct review upon certification from the court of appeals prior to the court of appeals hearing and deciding the matter; or

808.05(3) (3) It, on its own motion, decides to review the matter directly.

808.05 History History: 1977 c. 187.

808.07 808.07 Relief pending appeal.

808.07(1) (1) Effect of appeal. An appeal does not stay the execution or enforcement of the judgment or order appealed from except as provided in this section or as otherwise expressly provided by law.

808.07(2) (2) Authority of a court to grant relief pending appeal.

808.07(2)(a) (a) During the pendency of an appeal, a trial court or an appellate court may:

808.07(2)(a)1. 1. Stay execution or enforcement of a judgment or order;

808.07(2)(a)2. 2. Suspend, modify, restore or grant an injunction; or

808.07(2)(a)3. 3. Make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to be entered.

808.07(2)(am) (am) During the pendency of an appeal, the trial court may hear and determine a motion filed under s. 806.07.

808.07(2)(b) (b) Except as provided in s. 655.27 (5) (a) 3., relief under this subsection may be conditioned upon the filing of an undertaking in the trial court.

808.07(2m) (2m) Limit on undertaking.

808.07(2m)(a) (a) During the pendency of an appeal of a judgment in any civil action, the court shall set the amount of the undertaking to be furnished by all appellants collectively in order to stay the execution of the judgment during appellate review, but the undertaking shall not exceed $100,000,000.

808.07(2m)(b) (b) Notwithstanding par. (a), if an appellee proves by a preponderance of the evidence that an appellant is dissipating assets outside the ordinary course of business to avoid payment of a judgment, a court may enter any order necessary to protect the appellee and may require the appellant to post a bond in an amount not to exceed the amount of the judgment.

808.07(3) (3) Undertaking for costs. An undertaking for costs is not required unless specifically required by statute, or, except as provided in s. 655.27 (5) (a) 3., by the trial court acting in its discretion.

808.07(4) (4) Proceedings against a surety. A surety on an undertaking is subject to the jurisdiction of the trial court and irrevocably appoints the clerk of that court as the surety’s agent for service of any papers affecting his or her liability on the undertaking. A person may seek to enforce the surety’s liability by filing a motion in the action or proceeding in the trial court in which the undertaking was filed.

808.07(5) (5) Public officials. A person or agency suing or being sued in an official public capacity is not required to execute an undertaking as a condition for relief under this section unless, except as provided in s. 655.27 (5) (a) 3., required by the court in its discretion.

808.07(6) (6) Sureties on undertakings. A surety shall file with the undertaking an affidavit that the surety has a net worth in property within this state not exempt from execution which exceeds the amount of the undertaking, except as provided in s. 632.17 (2). The respondent may by motion object to the sufficiency of a surety within 14 days after service of a copy of the undertaking.

808.07 History History: 1977 c. 187; 1979 c. 32; 1979 c. 110 s. 60 (9); 1983 a. 158, 219; Sup. Ct. Order, 130 Wis. 2d xix (1986); 1985 a. 332; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; 2003 a. 105.

Effective date note Judicial Council Note, 1986: Sub. (2) (am) carries forward the authority of trial courts to hear and determine motions for relief from judgment during the pendency of an appeal. Authority of the appellate court to hear and determine such motions under prior sub. (2) (a) 4. has been repealed. [Re Order eff. 7-1-86]

808.07 Note Judicial Council Note, 2001: Sub. (6) is the first of fifteen statutes scattered throughout the rules in which a 10-day deadline is being changed to a 14-day deadline. Also, 7-day deadlines are being changed to 11-day deadlines. Many of the current deadlines in ch. 809 are either 7 or 10 days and are affected by s. 801.15 (1) (b), which excludes “Saturdays, Sundays and holidays” from time periods “less than 11 days.” Additionally, many time periods in ch. 809 run from the service of a document, and under s. 801.15 (5) (a), when a document is served by mail, 3 days are added to the prescribed period. The interplay of s. 801.15 and ch. 809 causes many of the time periods in ch. 809 to be substantially longer than the number of days specified in the Rules. The varying time periods have made calculation of the court’s deadlines difficult.

808.07 Note The proposed amendment of all of the 7-day or 10-day deadlines to 11 and 14 days, respectively, will remove the impact of s. 801.15 (1) (b) on the Rules of Appellate Procedure. However, there will be little adverse impact on the time actually given to parties. The proposed change will greatly facilitate the court’s calculation of deadlines. If circumstances demand a different time period, the court may set an appropriate deadline under s. 809.82 (2) (a). [Re Order No. 00-02 effective July 1, 2001]

808.07 Annotation A postjudgment order of the circuit court denying a motion under sub. (2) (a) 4. [now sub. (2) (am)] is not reviewable on appeal from the judgment. Chicago & North Western Railroad v. LIRC, 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).

808.07 Annotation Under sub. (1) and s. 808.075 (1), a circuit court has authority to confirm a sheriff’s sale even though an appeal of the judgment of foreclosure and sale is pending. Community National Bank v. O’Neill, 157 Wis. 2d 244, 458 N.W.2d 385 (Ct. App. 1990).

808.07 Annotation A stay pending appeal is appropriate when the moving party: 1) makes a strong showing that it is likely to prevail on the appeal; 2) shows that unless the stay is granted it will suffer irreparable harm; 3) shows that there will be no substantial harm to the other parties; and 4) shows that there will be no harm to the public interest. State v. Gudenschwager, 191 Wis. 2d 431, 529 N.W.2d 225 (1995).

808.07 Annotation The Gudenschwager, 191 Wis. 2d 431 (1995), factors do not provide adequate guidance for granting a stay pending appeal when the judgment sought to be stayed is solely a money judgment. The court must consider: 1) the likelihood of success on appeal; 2) the need to ensure collectibility of the judgment if the appeal is unsuccessful; 3) whether the appellant, if successful, will be able to recover; and 4) the harm to the respondent if the judgment is not paid until the completion of an unsuccessful appeal. Scullion v. Wisconsin Power & Light Co., 2000 WI App 120, 237 Wis. 2d 498, 614 N.W.2d 565, 98-3221.

808.07 Annotation Even if a statutory lis pendens under s. 840.10 is dissolved, common law lis pendens applies and a purchaser who is a party to the relevant litigation takes the property subject to the outcome of the litigation, including appeals. This section does not affect that result. Gaugert v. Duve, 2001 WI 83, 244 Wis. 2d 691, 628 N.W.2d 861, 98-3004.

808.07 Annotation In some cases, executions may be stayed, tolling interest, and in other cases, a court may decline such a request for stay. There is no substantial conflict in these differing results. Estate of Matteson v. Matteson, 2008 WI 48, 309 Wis. 2d 311, 749 N.W.2d 557, 05-2607.

808.07 Annotation In determining whether to grant relief pending appeal, the court of appeals exercises its discretion. The court of appeals should explain its discretionary decision-making to ensure the soundness of that decision-making and to facilitate judicial review. In this case, the court of appeals erroneously exercised its discretion when the court denied the defendant’s motion for relief pending appeal without explaining the reasoning for the discretionary denial decision. State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141, 16-2017.

808.07 Annotation Involuntary medication orders are subject to an automatic stay pending appeal. On a motion to lift an automatic stay, the state must: 1) make a strong showing that it is likely to succeed on the merits of the appeal; 2) show that the defendant will not suffer irreparable harm if the stay is lifted; 3) show that no substantial harm will come to other interested parties if the stay is lifted; and 4) show that lifting the stay will do no harm to the public interest. State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141, 16-2017.

808.07 Annotation When reviewing the likelihood of success on appeal in conducting a stay analysis, a circuit court must consider the standard of review, along with the possibility that appellate courts may reasonably disagree with its legal analysis. The probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the movant will suffer absent the stay. Thus, the greater the potential injury, the less a movant must prove in terms of success on appeal. Waity v. Lemahieu, 2022 WI 6, 400 Wis. 2d 356, 969 N.W.2d 263, 21-0802.