State Bar of Wisconsin

Three bills amending and clarifying appellate procedures signed into law

By Tom Solberg, Public Relations Coordinator, State Bar of Wisconsin

June 26, 2009 – Three bills supported by the State Bar of Wisconsin’s Criminal Law Section that amend and clarify various appellate procedures were signed into law on June 19. Assembly Bills 122, 123 and 124 were signed by Governor Jim Doyle at a meeting of the Wisconsin Judicial Council in Madison.

AB 122 (2009 WI Act 25) tolls the time limit for filing a petition for review in the supreme court while a timely motion for reconsideration is pending in the court of appeals. Under current law, a person seeking Wisconsin Supreme Court review of a court of appeals decision has 30 days to file a petition for review in the supreme court. At the Judicial Council’s request, the supreme court created Rule 809.24 to allow a person to file a motion for reconsideration in the court of appeals. The reconsideration rule was necessary to correct errors in the court of appeals decision that likely would not merit supreme court review, and codified a little-known provision of the court of appeals’ internal operating procedures. The supreme court could not, however, toll the 30-day time limit for filing the petition for review while the motion for reconsideration was pending. This is so because the 30-day time limit for filing a petition for review established by current § (Rule) 808.10 is jurisdictional and cannot be extended by the court. This bill eliminates the necessity for such simultaneous pleadings.

AB 123 (2009 WI Act 26) specifies that appeals in Ch. 980 (sexually violent person commitment) and s. 971.17 (not guilty by reason of mental disease or defect commitment) proceedings are subject to the unified appeal procedures in Wis. Stat. ss. (Rules) 809.30 - .32. Now the appellate Rules 808.04 (3) and (4) and 809.30 (1) and (2) specify all of the case types governed by this appellate procedure.

AB 124 (2009 WI Act 27) allows suppression of evidence issues to be raised on appeal in Ch. 938 cases following an admission to a delinquency petition. “The general rule is that a guilty, no contest, or Alford plea ‘waives all non-jurisdictional defects, including constitutional claims [.]” AB 124 provides a statutory exception to this rule in juvenile cases, like the Wis. Stat. s. 971.31(10) exception in criminal cases, and allows juveniles to appeal suppression rulings following an admission to a delinquency petition. These procedural laws recognize the importance of litigating these issues, because they enforce Fourth, Fifth and Sixth Amendment rights, and acknowledge that it is inefficient to require a person to have a trial in order to preserve their right to appeal constitutional defects in the proceedings.

Atty. Marla Stephens, Judicial Council chair, welcomed the revisions. “I want to thank Senator Taylor and Representative Hebl for their contributions to the council during every meeting this year, and for introducing and moving these bills at the council’s request. I want to thank the co-sponsors of the bills: Senator Risser, and Representatives Staskunas and Turner,” Stephens said. “And finally I want to thank the Judicial Council Appellate Procedure Committee members who worked with me to craft the changes as part of an extensive revision to the rules of appellate procedure that were otherwise created through the supreme court rulemaking procedure (See Order No. 00-02, 2001 WI 39): the late and Hon. Ted E. Wedemeyer, Jr., then-presiding judge, Court of Appeals, District I, co-chair; Shelley Grogan, of the Wisconsin Court of Appeals District I, then Judge Wedemeyer’s law clerk; Mary E. Burke, assistant attorney general, Wisconsin Department of Justice, then of the Criminal Appeals Unit; and Margaret Carlson, chief staff attorney, Court of Appeals.

 

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© 2009, State Bar of Wisconsin