Vol. 75, No. 8, August 2002

Supreme Court Orders

• Stipulated reversal or vacatur of a lower court
• Rules of Appellate Procedure and Supreme Court Rules
• Citation to Unpublished Opinions
• State Legislative Redistricting

Stipulated reversal or vacatur of a lower court

In the matter of the amendment of Wis. Stat. § 809.18, relating to requests for stipulated reversal or stipulated vacatur of a lower court decision

Order 01-15

On Nov. 1, 2001, the Judicial Council filed a petition seeking to amend Wis. Stat. § 809.18 in order to clarify that a lower court decision may not be reversed or vacated by the parties' stipulation as a condition of dismissal of an appeal.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Oct. 22, 2002, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing on rules petitions 01-15 and

02-02.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 14th day of June, 2002.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Petition

The Judicial Council, pursuant to its authority under s. 758.13, Wis. Stats. to receive, consider and in its discretion investigate suggestions from any source pertaining to the administration of justice and to recommend changes in the statutes and rules governing procedure in the courts of Wisconsin, hereby petitions the court to adopt the following statutory changes under s. 751.12, Wis. Stats.,

SECTION 1.

809.18 of the statutes is amended to read:

809.18 Rule (Voluntary dismissal)

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 trial court. The dismissal of an appeal 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. Requests for stipulated reversal or stipulated vacatur of a lower court decision are not permitted.

Note: This amendment makes it clear that lower court decisions cannot be reversed or vacated by the parties' stipulation as a condition for dismissal of the appeal.

Respectfully submitted,

James C. Alexander, Judicial Council

Discussion

In a letter dated Oct. 31, 2000, Chief Justice Shirley S. Abrahamson requested the Judicial Council to study the issue of vacating published decisions on stipulation of the parties for dismissal. Chief Justice Abrahamson stated:

"If the Council concludes that a rule should be proposed governing this subject, I suggest that the draft of the rule might include criteria or standards for the court to use in reaching a decision regarding dismissal with vacating a court of appeals decision."

Members of the Judicial Council's Evidence and Civil Procedure Committee undertook this task. They reviewed current instances of stipulated vacatur before the Wisconsin Supreme Court: Mason Shoe Manufacturing Co. v. Firstar Bank Eau Claire, N.A., et al., Appeal No. 97-2053 (parties' joint motion for vacatur granted); and Wisconsin Central Limited, et al. v. Wisconsin DOR and Cate Zueske, Appeal No. 99-0194 (parties' joint motion for vacatur denied). They also reviewed cases from other states and scholarly literature regarding stipulated vacatur.

A number of courts across the country have dealt with the issue of vacatur and its application in the settlement context. Legal scholars have also addressed the issue and discussed various benefits and drawbacks of a court granting vacatur when a case is in the midst of appeal but parties settle and request vacatur as part of the settlement.

The U.S. Supreme Court has held in a unanimous decision that in federal courts "mootness by reason of settlement does not justify vacatur of a judgment under review." U.S. Bancorp Mtg. Co. v. Bonner Mall, 513 U.S. 18 (1994). In Bonner Mall, the Supreme Court opined that vacatur is an equitable remedy, and as such, when federal courts contemplate equitable relief, they must also consider the public interest. Judicial precedents, rather than existing as the exclusive property of private litigants, are presumptively correct and valuable to the legal community as a whole. "They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur."

The Court made clear that there are some circumstances in which vacatur may be granted as part of a settlement. "[T]he determination is an equitable one, and exceptional circumstances may conceivably counsel in favor of such a course." However, "those exceptional circumstances do not include the mere fact that the settlement agreement provides for vacatur."

In 1988 the Seventh Circuit in In re Memorial Hospital of Iowa County, 862 F.2d 1299 (7th Cir. 1988), acknowledged that it routinely denies motions for vacatur when settlement of a case occurs. Judge Easterbrook asserted that an opinion is a public act of the government that may not be expunged by private agreement. Although a private settlement concerns only the parties to the litigation, when their bargain calls for judicial action such as vacatur, the settlement may also affect third parties who are future potential litigants. When litigation produces a precedent, "the judicial system ought not allow the social value of that precedent, created at cost to the public and other litigants, to be a bargaining chip in the process of settlement. The precedent, a public act of a public official, is not the parties' property." Id. at 1301.

The California Supreme Court's 1992 decision in Neary v. Regents of the University of California, which permitted stipulated reversal of a case, spawned a number of law review articles and commentaries. In Neary, the plaintiff won a $7 million jury verdict, the defendants appealed, and while the appeal was pending, they offered plaintiff a settlement. He would receive $3 million, and in exchange all parties would stipulate to dismissing the appeal with prejudice and the trial court opinion would be vacated. The parties filed an application in the California Court of Appeals asking it to reverse the trial court's opinion and remand the case to the trial court for a dismissal with prejudice. The court of appeals refused the request. On appeal, the California Supreme Court held that courts of appeal should grant requests for stipulated reversal "absent a showing of extraordinary circumstances that warrant an exception to this general rule." 834 P.2d 119, 125 (Cal. 1992). The court noted its inherent power "to do whatever is necessary and appropriate ... to ensure the prompt, fair, and orderly administration of justice." Id. at 120.

In discussing this issue, members of the Judicial Council considered the comments by a number of legal scholars. In general, these comments placed into question the propriety of granting vacatur in the case of settlement. Although most authors acknowledge the argument that vacatur is beneficial in that, to a certain extent, it promotes settlement, most commentators focus on the detrimental effects of vacatur. Many more objections to the practice exist than benefits.

Arguments stated in favor of stipulated vacatur are as follows:

1. Stipulated vacatur promotes settlement. For those cases that are unlikely to settle prior to trial, settlement on appeal saves considerable expenditures of time and money. Permitting vacatur by stipulation may encourage postjudgment settlements.

2. "Simple fairness requires that the first and most weighty consideration be given to the parties' interests and that they be accommodated except in the extra-ordinary case ... . The courts exist for litigants. Litigants do not exist for courts." Neary v. Regents of the University of California, 834 P.2d 119, 122 (Calif. 1992).

3. Stipulated vacatur does not trivialize the work of the lower court because the purpose of the judiciary is to resolve disputes between parties, and permitting vacatur resolves the dispute. Id. at 124.

4. The public interest can be served by stipulated vacatur. The trial court judgment in Neary would have required the University of California to pay plaintiff $7 million. The proposed settlement, which included a stipulated vacatur, reduced the amount to $3 million. This saved the public $4 million.

Arguments against stipulated vacatur are as follows:

1. Judicial precedent is valuable to the legal community as a whole, and is not the private property of litigants. It represents the public act of governmental actors and should not be expunged by private agreement. Stipulated vacatur transforms judicial decisions into commodities that can be bought and sold at will.

2. Stipulated vacatur is inefficient because it actually discourages settlement. A party can gamble on litigation, and if she loses, simply settle the losing case on the condition that the judgment be erased. Instead of promoting settlement, it deters settlement at an earlier stage. A party may refuse to settle at an earlier stage, confident in the knowledge that stipulated vacatur is available on appeal.

3. Stipulated vacatur is offensive to trial judges who have invested a great deal of time in reaching a decision, only to have an appellate court vacate the decision without undertaking any consideration of the merits of the case.

4. Stipulated vacatur favors wealthy repeat litigants who can buy their way out of bad precedent and a lower court decision's issue preclusive effects. For example, a corporation whose products have injured a large class of people has a continued, vested interest in vacatur by agreement. Destroying an adverse precedent prevents future plaintiffs from using offensive collateral estoppel to establish key findings of fact against it. Stipulated vacatur negates the issue preclusive effects of a trial court judgment. By contrast, it is argued that vacatur disfavors poorer, one-shot litigants because it prevents them from holding conclusively and validly established findings of fact against an adversary. The net result is that wealthy litigants are able to buy themselves out of unfavorable judgments, and this produces a system slanted toward the interests of the wealthy.

5. While private litigants may bear a burden by being denied the option of vacatur as a settlement tool, public policy implications and potential loss of integrity in the judicial system far outweigh any detrimental effects to litigants. The effect of vacatur on the litigation process endangers the value of precedent and potentially the integrity of the courts.

Although several courts have suggested that stipulated vacatur may under exceptional circumstances serve the public interest, members of the Judicial Council could not articulate any circumstances in which this might be so.

The Judicial Council considered a rule that permits vacatur by settlement under certain circumstances. For example, the Council considered the following proposed rule alternative:

Alternative One

Current 809.18 would be changed to 809.18(a). ADD:

(b) The dismissal of an appeal by agreement of the parties does not ordinarily affect the status of a lower court decision. In extraordinary circumstances, an appellate court may grant a motion for stipulated vacatur of a lower court judgment, but such motion must include a joint declaration of the parties or their counsel that:

1. Describes the parties and the factual and legal issues presented at trial;

2. Indicates whether the judgment involves important public rights or unfair, illegal or corrupt practices, or torts affecting a significant number of persons, or otherwise affects the public or a significant number of persons not parties to the litigation (if the judgment is against a state licensee, the declaration must also disclose whether it exposes such person to any possible disciplinary proceeding); and

3. Discloses whether the judgment sought to be vacated may have issue preclusive or other effects in potential future litigation and, if so, whether any third parties who might be prejudiced by stipulated vacatur of the judgment have received notice of the motion therefore.

A copy of the judgment must accompany the motion. An order granting such motion shall state the extraordinary circumstances under which the motion is granted.

The Judicial Council also considered another alternative to the proposal recommended by the Judicial Council. This proposal was advanced by one dissenter.

Alternative Two

Current 809.18 would be changed to 809.18(a). ADD:

(b) Stipulated reversal and stipulated vacatur of a trial court's judgment or decision or a court of appeals' decision or order are presumed to be contrary to the public interest, and no motion or request for stipulated reversal or stipulated vacatur shall be granted unless the requesting parties overcome said presumption.

Proposed Judicial Council Note: Subsection (b) indicates that stipulated reversals and stipulated vacatur may be granted only when the requesting parties overcome a presumption against such practice. It is contemplated that before such a motion would be granted, the court would consider such criteria as the factual and legal issues involved, the public rights, whether corrupt or illegal practices were involved, the statutory framework involved, whether persons other than designated parties may be affected, the number of persons affected, whether a license or admission to professional practice is involved, whether issue preclusive effects are implicated, and any other factors implicating the public interest.

In support of this proposal, the dissenter writes:

The courts of this state are competent to consider and weigh issues of public interest, as they must in many requests for equitable relief. It is important that the judiciary's discretion not be limited by an absolute rule. The Council should recognize that the judicial branch, particularly the supreme court, is invested with a constitutional and institutional obligation to consider public policy in many of the cases before it, that it is competent and required to make decisions on the basis of public policy, and that it may upon an appropriate motion find that the presumed public interest contrary to stipulated reversal or vacatur is overcome by other appropriate considerations, such as those indicated above.

After careful consideration, the Judicial Council, with one dissent, voted to adopt the rule as set forth in this petition. The rule prohibits vacatur by stipulation. The rule has no effect on

s. 806.07 (Relief from judgment or order). Nothing in the proposed rule forbids parties from settling a case on appeal. It prohibits only vacatur by stipulation.

The Council therefore petitions this Court to approve the rule as amended.

Rules of Appellate Procedure and Supreme Court Rules

In the matter of amendment of the Rules of Appellate Procedure:

Wis. Stat. §§ 809.10(1); 809.11(4); 809.11(5); 809.11(7); 809.19(3), (6) and (9); 809.24; 809.26(1); 809.30(1), (2), (3), and (4); 809.31(5); 809.32(1), (2), (3), (4); 809.40(1), (1m), and (3); 809.50(3); 809.62(4); 809.82(2)(b) and Supreme Court Rules 71.04(4); and creation of §§ 809.80(3) (4), and (5) and 809.81(9).

Order 02-01

On Feb. 26, 2002, the Judicial Council of Wisconsin filed a petition seeking to amend numerous rules of appellate procedure provided in Wis. Stat. chapter 809 and Supreme Court Rule 71.04(4). On March 27, 2002, the Judicial Council filed an addendum to the petition seeking to amend Wis. Stat. § (Rule) 809.24. The intended purpose of the proposed amendments is set forth in the Judicial Council's Comments and Executive Summary filed on Feb. 26, 2002.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Sept. 26, 2002, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 14th day of June, 2002.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Petition

The Judicial Council respectfully petitions this Court for an order pursuant to Wis. Stat. § 751.12, adopting these proposed amendments to Chapter 809, Rules of Appellate Procedure, and Supreme Court Rule 71.04. The proposed amendments are explained in the comments to the text supplied by the Judicial Council. The Judicial Council further respectfully petitions this court to publish the comments as Judicial Council Notes to the adopted amendments.

#1. SECTION 809.10(1)(d) of the statutes is amended to read:

809.10(1)(d) Docketing statement. The person shall send the court of appeals an original and one copy of a completed docketing statement on a form prescribed by the court of appeals. The docketing statement shall accompany the court of appeals' copy of the notice of appeal. The person shall send a copy of the completed docketing statement to the other parties to the appeal. Docketing statements need not be filed in appeals brought under

s. 809.105, 809.107, 809.32, or 974.06 (7), or in cases in which a party represents himself or herself. Docketing statements need not be filed in appeals brought under s. 809.30 or 809.40 (1) or 974.05, or by the state or defendant in permissive appeals in criminal cases pursuant to

s. 809.50, , except that a docketing statements shall be filed in cases arising under ch. 48, 51, 55, or 938.

COMMENT TO § 809.10(1)(d): See also related changes in ss. 809.40(3) and 809.50(3). Prior to 2001 WI 39, effective 7/1/01, s. 809.10(1) provided that docketing statements were not required in "criminal cases or in cases in which a party appears pro se." State's appeals in criminal cases were inadvertently omitted from the list of statutory references that replaced "criminal cases" in the prior statute. Subsection (1)(d) is amended to clarify that docketing statements are not required in state's appeals in criminal cases. The amendment also clarifies that docketing statements are not required in permissive appeals in criminal cases, but are required in other permissive appeals.

#2. SECTION 809.11(4)(b) of the statutes is amended to read:

809.11(4)(b) The appellant shall file a statement on transcript with the clerk of the court of appeals, shall file a copy of the statement on transcript with the clerk of the circuit court, and shall serve a copy of the statement on transcript on the other parties to the appeal within 14 days after the filing of the notice of appeal in the circuit court. The statement on transcript shall either designate the portions of the transcript that have been ordered requested by the appellant or contain a statement by the appellant that a transcript is not necessary for prosecution of the appeal. If a transcript that is not yet filed in the circuit court is necessary for prosecution of the appeal, the statement on transcript shall also contain a statement by the court reporter that the appellant has requested copies of the transcript or designated portions thereof for each of the other parties; that the appellant has made arrangements to pay for the original transcript and for all copies for other parties; the date on which the appellant requested the transcript and made arrangements to pay for it; and the date on which the transcript must be served on the parties.

COMMENT TO § 809.11(4)(b): Subsection (4)(b) is amended for consistency in terminology and to clarify that the court reporters' statement regarding transcript arrangements, sometimes referred to as the court reporters' certification, is required only for a transcript that has not been filed in circuit court when the statement on transcript is filed, consistent with the clerk of the court of appeals' interpretation and enforcement practices.

#3. SECTION 809.11(5) of the statutes is amended to read:

809.11(5) Within 14 days after filing of a statement on transcript as required under sub. (4), any other party may file a desig-nation of additional portions to be included in the transcript and serve a copy of the designation on the appellant. Within 14 days after the filing of such a desig-nation, the appellant shall file the state-ment required by sub. (4)(b) covering the other party's designation. If the appellant fails or refuses to request the designated portions, the other party, within 14 days of the appellant's failure or refusal, may request the portions or move the circuit court for an order requiring the appellant to request the designated portions.

COMMENT TO § 809.11(5): Subsection (5) is amended to create a time limit for the completion of the transcript ordering process. If the appellant does not request the preparation of the additional portions of transcript that have been designated by another party within 14 days of the designation, the other party may either request the preparation of the portions from the reporter or move the circuit court for an order requiring the appellant to request the designated portions. This revision creates a 14-day time period for the other party to take action to obtain the additional portions of the record.

#4. SECTION 809.11(7)(a) of the statutes is amended to read:

809.11(7)(a) Service of transcript copies. The reporter shall serve copies of the transcript on the parties to the appeal, file the transcript with the circuit court, and notify the clerk of the court of appeals and the parties to the appeal that the transcript has been filed and served within 60 days after the date on which the transcript was requested and arrangements were made for payment under sub. (4). If additional portions of the transcript are requested under sub. (5), the reporter shall serve copies of the additional portions of the transcript on the parties to the appeal, file the additional portions of the transcript with the circuit court, and notify the clerk of the court of appeals and the parties to the appeal that the additional portions of the transcript have been filed and served within 60 days after the date on which the additional portions were requested and arrangements were made for payment. If supplementation or correction of the record is ordered under s. 809.14(3)(b), the reporter shall serve copies of the supplemental or corrected transcript on the parties to the appeal, file the supplemental or corrected transcript with the circuit court, and notify the clerk of the court of appeals and the parties to the appeal that the supplemental or corrected transcript has been filed and served within 20 days after the order for supplementation or correction is entered or within the time limit set by order of the court.

COMMENT TO § 809.11(7)(a): Subsection (7)(a) is amended to clarify the time limits for the preparation of additional portions of the transcript requested under § 809.11(5), and to require the court reporter to notify the clerk of the court of appeals and the parties to the appeal when a transcript is filed and served.

#5. SECTION 809.11(7)(b) of the statutes is amended to read:

809.11(7)(b) Return of statement regarding transcript arrangements. The reporter shall sign and send to the appellant, within 5 days after receipt, the statement regarding transcript arrangements and filing required under sub. (4)(a) (b).

COMMENT TO § 809.11(7)(b): Subsection (7)(b) is amended to correct the cross-reference to the rule in sub. (4)(b) that requires the reporter to file a statement regarding transcript arrangements.

#6. SECTION 809.11(7)(c) of the statutes is amended to read:

809.11(7)(c) Extensions. A reporter may obtain an extension for filing the transcript only by motion, showing good cause, that is filed in the court of appeals and served on all parties to the appeal, the clerk of the circuit court and the district court administrator.

COMMENT TO § 809.11(7)(c): Subsection (7) is amended to require a court reporter who files a motion to extend the time within which to prepare a transcript to serve a copy of the motion on the clerk of the circuit court and the district court administrator. Early notice that a reporter has requested additional time to prepare a transcript will enable the clerk and the district court administrator to provide workload relief to the reporter if deemed appropriate.

#7. SECTIONS 809.19(3) and (6)(b)1 of the statutes are amended to read:

809.19(3) Respondent's brief. (a) 1. The respondent shall file a brief within the later of:

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; or

b. Thirty days after the date on which the court accepts the appellant's brief for filing. ; or

c. Thirty days after the date on which the record is filed in the office of the clerk.

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

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; or

b. Thirty days after the date on which the court accepts the appellant-cross-respondent's brief for filing. ; or

c. Thirty days after the date on which the record is filed in the office of the clerk.

COMMENT TO §§ 809.19(3) and 809.19(6)(b)1: Occasionally an appellant's brief is filed before the record is filed with the appellate court clerk, especially in cases involving pro se appellants. The amendments to subs. (3) and (6)(b)1 conform to current practice by establishing the due date for the respondent's brief or respondent-cross-appellant's brief as the latest of thirty days after date of service of the appellant's brief (plus three days if service is by mail), thirty days after the date on which the court accepts the appellant's brief or appellant-cross-respondent's brief for filing, or thirty days after the date on which the record is filed in the office of the clerk.

#8. SECTION 809.19(9) of the statutes is amended to read:

809.19 (9) Brief covers. Each brief or appendix shall have a front and back cover. The front cover shall contain the name of the court, the caption and number of the case, the court and judge appealed from, the title of the document, and the name and address of counsel filing the document. Except as provided in

s. 809.81(8), the caption shall include the full name of each party in the circuit court and shall designate each party so as to identify each party's status in the circuit court and in the appellate court, if any. The covers of the appellant's brief shall be blue; the respondent's, red; a combined respondent-cross-appellant's, red with a blue divider page; a combined reply-cross-respondent's, gray with a red divider page; a guardian ad litem's, yellow; a person other than a party, green; the reply brief, gray; and the appendix, if separately printed, white. In the event the supreme court grants a petition for review of a decision of the court of appeals, the covers of the briefs of each party shall be the same color as the cover of that party's briefs filed in the court of appeals; "petitioner" shall be added to the party designation of the petitioner, and the respondent's party designation shall remain the same as in the court of appeals.

COMMENT TO § 809.19(9). Subsection (9) is amended to conform to the party designations used by the clerk's office when a petition for review is granted.

#9. SECTION 809.26(1) of the statutes is amended to read:

809.26(1) The clerk of the court of appeals shall transmit to the circuit court the judgment and decision or order of the court and the record in the case filed pursuant to s. 809.15 within 31 days or as soon thereafter as practicable after the filing of the decision or order of the court. If a petition for review is filed pursuant to s. 809.62, the transmittal is stayed until the supreme court rules on the petition. If a motion for reconsideration is filed under s. 809.24, the transmittal is stayed until the court files an order denying the motion, or files an amended decision or order, and the subsequent expiration of any period for filing a petition for review.

COMMENT to § 809.26(1): Subsection (1) is amended to permit the clerk of courts some flexibility in the 31-day remittitur deadline to accommodate workload fluctuation.

#10. SUBCHAPTER III (title) of chapter 809 [precedes 809.30] of the statutes is amended to read:

SUBCHAPTER III

FELONY APPEAL PROCEDURE IN COURT OF APPEALS IN CRIMINAL AND CH. 48, 51, 55 AND 938 CASES

COMMENT to Subchapter III: The terminology throughout s. 809.30 is amended to clarify that persons seeking to appeal final judgments or orders in criminal, ch. 48 (child or unborn child in need of protection or services, guardianship or adoption), 51 (civil commitment), 55 (protective placement) and 938 (delinquency or juvenile justice) cases must comply with this rule. Prior language referred to all such persons as defendants and to all appeal proceedings as "postconviction," and was confusing to parties and practitioners.

#11. SECTION 809.30 (title) of the statutes is amended to read:

809.30 (title) Rule (Appeals in felony, criminal, ch. 48, 51, 55 and 938 cases).

#12. SECTION 809.30(1) of the statutes is repealed and recreated to read:

809.30(1) Definitions. In this subchapter:

(a) "Final adjudication" means the entry of a final judgment or order by the circuit court in a ch. 48, 51, 55 or 938 case, other than a termination of parental rights case under s. 48.43 or a parental consent to abortion case under s. 48.375(7).

(b) "Person" means: 1. a defendant seeking postconviction relief in a criminal case; 2. a party other than the state seeking postdisposition relief in a ch. 48 case, other than a termination of parental rights case under s. 48.43 or a parental consent to abortion case under s. 48.375(7); 3. a party other than the state seeking postdisposition relief in a ch. 938 case;

4. a subject individual or ward seeking postdisposition relief in a ch. 51 or 55 case; 5. any other person who may appeal under ss. 51.13(5), 51.20(15) or 55.06(18).

(c) "Postconviction relief" means an appeal or a motion for postconviction relief in a criminal case, other than a motion under s. 973.19, 974.06, or 974.07(2).

(d) "Postdisposition relief" means an appeal or a motion for postdisposition relief from a circuit court's final adjudication.

(e) "Prosecutor" means a district attorney, corporation counsel, or other attorney authorized by law to prosecute a criminal case or a case under ch. 48, 51, 55 or 938.

(f) "Sentencing" means the imposition of a sentence, a fine, or probation in a criminal case.

#13. SECTION 809.30(2)(title) of the statutes is amended to read:

809.30(2)(title) Appeal or ; postconviction or postdisposition motion by defendant .

#14. SECTION 809.30(2)(a) of the statutes is amended to read:

809.30(2)(a) Appeal procedures; counsel to continue. A defendant person seeking postconviction relief in a felony criminal case; a person seeking postdisposition relief in a ch. 48 case other than a termination of parental rights case under

s. 48.43 or a parental consent to abortion case under s. 48.375 (7); or a person seeking postdisposition relief in a ch. 51, 55, or 938 case shall comply with this section. Counsel representing the defendant person at sentencing or at the time of the final adjudication shall continue representation by filing a notice under par. (b) if the defendant person desires to pursue postconviction or postdisposition relief unless counsel is sooner discharged by the defendant person or allowed to withdraw by the trial circuit court before the notice must be filed.

#15. SECTION 809.30(2)(b) (intro.) of the statutes is amended to read:

809.30 (2)(b) Notice of intent to pursue postconviction or postdisposition relief. (intro.) Within 20 days after the date of sentencing or final adjudication, the defendant person shall file in circuit court and serve on the district attorney prosecutor and any other party a notice of intent to pursue postconviction or postdisposition relief. The notice shall include all of the following:

#16. SECTION 809.30(2)(b) 2. of the statutes is amended to read:

809.30(2)(b) 2. An identification of the judgment or order from which the defendant person intends to seek postconviction or postdisposition relief and the date on which it was granted or entered.

#17. SECTION 809.30(2)(b) 3. of the statutes is amended to read:

809.30(2)(b) 3. The name and address of the defendant person and the defendant's his or her trial counsel.

#18. SECTION 809.30(2)(b) 4. of the statutes is amended to read:

809.30(2)(b) 4. Whether defendant's the person's trial counsel was appointed by the state public defender and, if so, whether the defendant's person's financial circumstances have materially improved since the date the defendant's on which his or her indigency was determined.

#19. SECTION 809.30(2)(b) 5. of the statutes is amended to read:

809.30(2)(b) 5. Whether the defendant person requests the state public defender to appoint counsel for purposes of postconviction or postdisposition relief.

#20. SECTION 809.30(2)(b) 6. of the statutes is amended to read:

809.30(2)(b) 6. Whether a defendant person who does not request the state public defender to appoint counsel will represent himself or herself or will be represented by retained counsel. If the defendant person has retained counsel to pursue postconviction or postdisposition relief, counsel's name and address shall be included.

#21. SECTION 809.30(2)(c) 1. of the statutes is amended to read:

809.30(2)(c) 1. If the defendant person requests representation by the state public defender for purposes of postconviction or postdisposition relief, send to the state public defender's appellate intake office a copy of the notice that shows the date on which it was filed or entered, a copy of the judgment or order specified in the notice that shows the date on which it was filed or entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings in which a transcript has been filed with the clerk of circuit court.

#22. SECTION 809.30(2)(c) 2. of the statutes is amended to read:

809.30(2)(c) 2. If the defendant person does not request representation by the state public defender, send or furnish to the defendant, person, if the defendant is appearing without counsel, or to the defendant's person's attorney if one has been retained, a copy of the judgment or order specified in the notice that shows the date on which it was filed or entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings in which a transcript has been filed with the clerk of circuit court.

#23. SECTION 809.30(2)(d) of the statutes is amended to read:

809.30(2)(d) Indigency redetermination. Except as provided in this paragraph, whenever a defendant person whose trial counsel is appointed by the state public defender files a notice under par. (b) requesting public defender representation for purposes of postconviction or postdisposition relief, the district attorney prosecutor may, within 5 days after the notice is served and filed, file in the trial circuit court and serve upon the state public defender a request that the defendant's person's indigency be redetermined before counsel is appointed or transcripts are ordered requested. This paragraph does not apply to a child who is entitled to be represented by counsel under s. 48.23 or 938.23.

#24. SECTION 809.30(2)(e) of the statutes is amended to read:

809.30(2)(e) State public defender appointment of counsel; transcript and circuit court case record request. Within 30 days after the state public defender appellate intake office receives the materials from the clerk of circuit court under par. (c), the state public defender shall appoint counsel for the defendant person and request a transcript of the reporter's notes and a copy of the circuit court case record, except that if the defendant's person's indigency must first be determined or redetermined the state public defender shall do so, appoint counsel, and request transcripts and a copy of the circuit court case record within 50 days after the state public defender appellate intake office receives the material from the clerk of circuit court under par. (c).

#25. SECTION 809.30(2)(f) of the statutes is amended to read:

809.30(2)(f) Defendant Person not represented by public defender; transcript and circuit court case record request. A defendant person who does not request representation by the state public defender for purposes of postconviction or postdisposition relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record, within 30 days after filing a notice under par. (b). A defendant person who is denied representation by the state public defender for purposes of postconviction or postdisposition relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record, within 90 days after filing a notice under par. (b).

#26. SECTION 809.30(2)(fm) (title) of the statutes is amended to read:

809.30(2)(fm) Transcript and circuit court case record request in ch. 48 and 938 proceedings. A child who has filed a notice of intent to pursue relief from a judgment or order entered in a ch. 48 or 938 proceeding shall be furnished at no cost a transcript of the proceedings or as much of it as is requested, and may request a copy of the circuit court case record. To obtain the transcript and circuit court case record at no cost, an affidavit must be filed stating that the person who is legally responsible for the child's care and support is financially unable or unwilling to purchase the transcript and copies of the circuit court case record.

#27. SECTION 809.30(2)(g) of the statutes is amended to read:

809.30(2)(g) 1. The clerk of circuit court shall serve a copy of the circuit court case record on the defendant person within 60 days after receipt of the request for the circuit court case record. 2. The court reporter shall file the transcript with the circuit court and serve a copy of the transcript on the defendant person within 60 days of the request for the transcript. Within 20 days of after the request for the transcript of postconviction or postdisposition proceedings brought under sub. (2)(h), the court reporter shall file the original with the circuit court and serve a copy of that transcript on the defendant person. The reporter may seek an extension under s. 809.11 (7) for filing and serving the transcript.

#28. SECTION 809.30(2)(h) of the statutes is amended to read:

809.30(2)(h) Notice of appeal or , postconviction or postdisposition motion. The defendant person shall file in circuit court and serve on the district attorney prosecutor and any other party a notice of appeal or motion seeking postconviction or postdisposition relief within 60 days after the later of the service of the transcript or circuit court case record. The person shall file a motion for post-conviction or postdisposition relief before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised. A postconviction or postdisposition motion under this section may not be accompanied by a notice of motion and is made when filed. A notice of appeal filed under this section shall conform to the requirements set forth in

s. 809.10.

COMMENT TO § 809.30(2)(h): Amended sub. (2)(h) provides a cross-reference to the statutory section governing the requirements of a notice of appeal. The requirement of a motion for postconviction or postdisposition relief on grounds other than sufficiency of the evidence or issues previously raised is consistent with § 974.02(2).

#29. SECTION 809.30(2)(i) of the statutes is amended to read:

809.30(2)(i) Order determining postconviction or postdisposition motion. Unless an extension is requested by the defendant a party or the circuit court and granted by the court of appeals, the circuit court shall determine by an order the defendant's person's motion for post-conviction or postdisposition relief within 60 days after the filing of the motion or the motion is considered to be denied and the clerk of circuit court shall immediately enter an order denying the motion.

COMMENT TO § 809.30(2)(i): Prior to 2001 WI 39, effective 7/1/01, this rule did not specify who could request an extension of time for a circuit court to decide a postconviction motion. Sub. (2)(i) is amended to permit the circuit court, the state, the defendant, or any other party to request an extension of time for the circuit court to decide a postconviction or postdisposition motion.

#30. SECTION 809.30(2)(j) of the statutes is amended to read:

809.30(2)(j) Appeal from judgment and order. The defendant person shall file in circuit court and serve on the prosecutor and any other party an notice of appeal from the judgment of conviction and sentence or final adjudication and, if necessary, from the order of the trial circuit court on the motion for post-conviction or postdisposition relief within 20 days of the entry of the order on the postconviction or postdisposition motion. A notice of appeal filed under this section shall conform to the requirements set forth in s. 809.10. Appeals in ch. 48, 51, 55, and 938 cases are subject to the docketing statement requirements of s. 809.10(1)(d) and may be eligible for the expedited appeals program in the discretion of the court.

COMMENT TO § 809.30(2)(j): Sub-section (2)(j) is amended for clarification and consistency, and to cross-reference

s. 809.10, which contains the requirements governing a notice of appeal. In a criminal case, the prosecutor who represented the state in the circuit court should be served with a copy of the notice of appeal.

#31. SECTION 809.30(2)(k) of the statutes is amended to read:

809.30(2)(k) Transmittal of record. Except as otherwise provided in s. ss. 809.14(3)(b) and 809.15(4)(b) and (c), the clerk of circuit court shall transmit the record on appeal to the court of appeals as soon as prepared but in no event more than 40 days after the filing of the notice of appeal by the defendant . Subsequent proceedings in the appeal are governed by the procedures for civil appeals.

#32. SECTION 809.30(3) of the statutes is amended to read:

809.30(3) Appeals by state or other party; appointment of counsel. In a case in which the state of Wisconsin, the representative of the public, or any other party, or any person who may appeal under ss. 51.13(5), 51.29(15) or 55.06(8) appeals and the defendant or subject individual person who is the subject of the case or proceeding is a child or claims to be indigent, the court shall refer the person who is the subject of the case or proceeding to the state public defender for the determination of indigency and the appointment of legal counsel under ch. 977.

#33. SECTION 809.30(4)(a) of the statutes is amended to read:

809.30 (4) Motion to withdraw as appointed counsel for defendant . (a) If postconviction, postdisposition, or appellate counsel has been appointed for the defendant person under ch. 977 and seeks to withdraw as from the appointed counsel case, counsel shall serve a motion to withdraw upon the defendant person and upon the appellate division intake unit in the Madison appellate office of the state public defender. If the motion is filed before the notice of appeal is filed, the motion shall be filed in circuit court. If the motion is filed after a notice of appeal has been filed, the motion shall be filed in the court of appeals. Service of the motion to withdraw on the state public defender is not required when the motion is filed by an assistant state public defender or when a no-merit report is filed with the motion.

COMMENT TO § 809.30(4)(a): The amendment to sub. (4)(a) clarifies that the rule requiring service on the state public defender appellate division is applicable only to postconviction, postdisposition, and appellate appointments. Rule 809.30(4), 2001 WI 39, effective 7/1/01, is designed to assure that courts acting on motions to withdraw have knowledge of the state public defender's position with respect to appointing successor counsel. Subsection (4)(a) is amended to reflect that withdrawal motions filed by state public defender staff attorneys already contain that information and that the issue of appointment of successor counsel is irrelevant to the court's determination when a no-merit report is filed.

#34. SECTIONS 809.30(4)(b), (c) and (d) are amended to read:

809.30(4)(b) Within 20 days after receipt of the motion under par. (a), the state public defender shall determine whether successor counsel will be appointed for the defendant person and shall notify the court in which the motion was filed of the state public defender's determination.

(c) Before determining the motion to withdraw, the court shall consider the state public defender's response under par. (b) and whether the defendant person waives the right to counsel.

(d) When the motion to withdraw is filed in circuit court, appointed counsel shall prepare and serve a copy of the order determining counsel's motion to withdraw upon the defendant person and the appellate division intake unit in the Madison appellate office of the state public defender within 14 days after the court's determination.

#35. SECTION 809.31(5) of the statutes is amended to read:

809.31(5) The defendant or the state may seek review of the order of the circuit court by filing a motion with in the court of appeals under s. 809.14. The party seeking review must attach to its motion a copy of the judgment of conviction or other final judgment or order, the circuit court order regarding release pending appeal, the circuit court statement of reasons for the decision regarding release pending appeal, and the transcript of any release proceeding in the circuit court or a statement explaining why no transcript is available. The party filing the motion shall request a transcript of the reporter's notes of any proceeding in the circuit court regarding release pending appeal for all parties to the appeal and make arrangements to pay for the transcript within 7 days after the entry of the circuit court order regarding release pending appeal. The reporter shall serve copies of the transcript on the parties to the appeal, file the transcript with the circuit court, and notify the clerk of the court of appeals and the parties to the appeal that the transcript has been filed and served within 7 days after the date on which the transcript was requested and arrangements were made for payment. The motion shall be filed within 14 21 days after the entry of the circuit court order. The opposing party may file a response within 14 days after the filing of the motion.

COMMENT TO § 809.31(5): Subsection (5) is amended to establish time limits within which a party must request a transcript of the reporter's notes of any circuit court proceeding concerning release pending postconviction relief or appeal, and within which the reporter must file and serve the transcript, and to require the party seeking relief from the circuit court order to request, and make arrangements to pay for, a copy of the transcript for all parties. The amendment also enlarges the time within which a party must file a motion in the court of appeals to allow time to review the transcript before deciding to file a motion.

#36. SECTION 809.32(1)(a) of the statutes is amended to read:

809.32(1)(a) No-merit report. If an attorney appointed under s. 809.30(2)(e) or ch. 977 concludes that a direct appeal on behalf of the defendant person would be frivolous and without any arguable merit within the meaning of Anders v. California, 386 U.S. 738 (1967), and the defendant person requests that a no-merit report be filed or declines to consent to have the attorney close the file without further representation by the attorney, the attorney shall file with the court of appeals 3 copies of a no-merit report. The no-merit report shall identify anything in the record that might arguably support the appeal and discuss the reasons why each identified issue lacks merit.

#37. SECTION 809.32(1)(b) 1. (intro.) of the statutes is amended to read:

809.32(1)(b) 1. (intro.) Prior to the filing of a no-merit report, the attorney shall discuss with the defendant person all potential issues identified by the attorney and the defendant person, and the merit of an appeal on these issues. The attorney shall inform the defendant person that the defendant he or she has 3 options:

#38. SECTION 809.32(1)(b) 1. c. of the statutes is amended to read:

809.32(1)(b) 1. c. To have the attorney close the file and to proceed without an attorney or with another attorney retained at the defendant's person's expense.

#39. SECTION 809.32(1)(b)2. of the statutes is amended to read:

809.32(1)(b)2. The attorney shall inform the defendant person that a no-merit report will be filed if the defendant person either requests a no-merit report or does not consent to have the attorney close the file without further representation by the attorney. The attorney shall inform the defendant person that if a no-merit report is filed the attorney will serve a copy of the transcripts and the circuit court case record upon the defendant person at the defendant's person's request. The attorney shall inform the defendant person that, if the defendant person chooses to proceed with an appeal or that if the defendant chooses to have the attorney close the file without an appeal, the attorney will forward the attorney's copies of the transcripts and circuit court case record to the defendant person at the defendant's person's request. The attorney shall also inform the defendant person that the defendant person may file a response to the no-merit report and that the attorney may file a supplemental no-merit report and affidavit or affidavits containing facts outside the record, possibly including confidential information, to rebut allegations made in the defendant's person's response to the no-merit report.

#40. SECTION 809.32(1)(c) (form) of the statutes is amended to read:

809.32(1)(c) (form)

CERTIFICATION BY ATTORNEY

I hereby certify that I have discussed with the defendant my client all potential issues identified by me and by the defendant my client and the merit of an appeal on these issues, and I have informed the defendant my client that the defendant he/she must choose one of the following 3 options: 1) to have me file a no-merit report; 2) to have me close the file without an appeal; or 3) to have me close the file and to proceed without an attorney or with another attorney retained at the defendant's my client's expense. I have informed the defendant my client that a no-merit report will be filed if the defendant he/she either requests a no-merit report or does not consent to have me close the file without further repre-sentation. I have informed the defendant my client that the transcripts and circuit court case record will be forwarded at the defendant's his/her request. I have also informed the defendant my client that the defendant he/she may file a response to the no-merit report and that I may file a supplemental no-merit report and affidavit or affidavits containing facts matters outside the record, possibly including confidential information, to rebut allegations made in the defendant's my client's response to the no-merit report.

Signed: ....

Signature: ....

#41. SECTIONS 809.32(1)(d) and (e) of the statutes are amended to read:

809.32(1)(d) Service of copy of no-merit report, transcript, and circuit court case record. The attorney shall serve a copy of the no-merit report on the defendant person and shall file a statement in the court of appeals that service has been made upon the defendant person. The attorney shall also serve upon the defendant person a copy of the transcript and circuit court case record within 14 5 days after receipt of a request for the transcript and circuit court case record from the defendant person and shall file a statement in the court of appeals that service has been made on the defendant person.

(e) Response to no-merit report. The defendant person may file a response to the no-merit report within 30 days after service of the no-merit report. If the defendant person files a response, the clerk shall, within 5 days after the filing of the response, send a copy of the response to the attorney who filed the no-merit report.

COMMENT TO § 809.32(1)(d): When a no-merit report is filed, 809.32(1)(e) gives the person 30 days after the service of the no-merit report to file a response. The time limit in sub. (1)(d) is amended to adjust the time within which the attorney must send copies of the transcript and circuit court case record because five days should be sufficient time for the attorney to make copies and send them to the person. The amendment is intended to avoid delay that may occur if the person is not served with the record in time to utilize it in preparing a response to the no merit report.

#42. SECTIONS 809.32(1)(f) and (g) of the statutes are amended to read:

809.32(1)(f) Supplemental no-merit report. If the attorney is aware of facts outside the record that rebut allegations made in the defendant's person's response, the attorney may file, within 30 days after receipt of the defendant's person's response, a supplemental no-merit report and an affidavit or affidavits, including facts matters outside the record. The supplemental report and affidavit or affidavits shall be served on the defendant person, and the attorney shall file a statement in the court of appeals that service has been made upon the defendant person.

(g) Remand for fact-finding prior to decision. If the defendant person and the attorney allege disputed facts regarding matters outside the record, and if the court determines that the defendant's person's version of the facts, if true, would make resolution of the appeal under sub. (3) inappropriate, the court shall remand the case to the circuit court for an evidentiary hearing and fact-finding on those disputed facts before proceeding to a decision under sub. (3).

#43. SECTION 809.32(2) of the statutes is amended to read:

809.32(2) Notice of appeal, statement on transcript, service of copies. The attorney also shall file in circuit court a notice of appeal of the judgment of conviction or final adjudication and of any order denying a postconviction or post-disposition motion. The notice of appeal shall be identified as a no-merit notice of appeal and shall state the date on which the no-merit report is due and whether the due date is calculated under par. (a) or (b). The clerk of circuit court shall transmit the record in the case to the court pursuant to s. 809.15. The attorney also shall file a statement on transcript complying with the requirements of s. 809.11(4), except that copies of the transcript need not be provided to other parties. All papers filed with the court under this subsection, except the transcript, shall be served on the state in accordance with

s. 809.80(2)(b) and on any other party. The no-merit report, notice of appeal, and statement on transcript must be filed within whichever of the following is later:

(a) One hundred eighty days after the service upon the defendant person of the transcript and circuit court case record requested under s. 809.30(2)(e).

(b) Sixty days after the entry of the order determining a postconviction or postdisposition motion.

#44. SECTION 809.32(3) of the statutes is amended to read:

809.32(3) Decision on no-merit report. In the event that the court of appeals finds determines that further appellate proceedings would be frivolous and without any arguable merit, the court of appeals shall affirm the judgment of conviction or final adjudication and the denial of any postconviction or post-disposition motion and relieve the attorney of further responsibility in the case. The attorney shall advise the defendant person of the right to file a petition for review to the supreme court under s. 809.62.

#45. SECTION 809.32(4) of the statutes is amended to read:

809.32(4) No-merit petition for review. If a fully briefed appeal is taken to the court of appeals and the attorney is of the opinion that a petition for review in the supreme court under s. 809.62 would be frivolous and without any arguable merit, the attorney shall advise the defendant person of the reasons for this opinion and that the defendant person has the right to file a petition for review. If requested by the defendant person, the attorney shall file a petition satisfying the requirements of s. 809.62(2)(d) and (f) and the defendant person shall file a supplemental petition satisfying the requirements of

s. 809.62(2)(a), (b), (c), and (e). The petition and supplemental petition shall both be filed within 30 days after the date of the decision or order of the court of appeals. An opposing party may file a response to the petition and supplemental petition within 14 days after the service of the supplemental petition.

#46. SUBCHAPTER IV (title) of chapter 809 [precedes 809.40] of the statutes is amended to read:

CHAPTER 809

SUBCHAPTER IV

CHAPTERS APPEAL PROCEDURE IN COURT OF APPEALS IN TERMINATION OF PARENTAL RIGHTS, CHS .48, 51, 55 AND 799, TRAFFIC REGULATION, MUNICIPAL ORDINANCE VIOLATION AND MISDEMEANOR PARENTAL CONSENT TO ABORTION CASES APPEAL PROCEDURE IN COURT OF APPEALS

#47. SECTION 809.40 (title) of the statutes is amended to read:

809.40 (title) Rule (Applicability Appeals in termination of parental rights, ch. 799, traffic regulation, municipal ordinance violation, and parental consent to abortion cases).

#48. SECTION 809.40(1) of the statutes is repealed.

COMMENT to 809.40(1): Sub. (1) is repealed to eliminate confusing cross-references to appeal procedures under Subchapter III. Appeals under former sub. (1) were and are governed by the procedures in s. 809.30-.32.

#49. SECTION 809.40(1m) of the statutes is amended to read:

809.40(1m) Subsection (1) does not apply to an An appeal from an order denying a petition under s. 48.375(7), which is governed by the procedures specified in

s. 809.105, or to and an appeal from an order or judgment under s. 48.43, which is governed by the procedures specified in

s. 809.107.

#50. SECTION 809.40(3) of the statutes is amended to read:

809.40(3) Any civil appeal to the court of appeals under sub. (1) or (2) is subject to the docketing statement requirement of

s. 809.10(1)(d) and may be eligible for the expedited appeals program in the discretion of the court.

#51. SECTION 809.50(3) of the statutes is amended to read:

809.50(3) If the court grants leave to appeal, the procedures for appeals from final judgments are applicable to further proceedings in the appeal. The entry of the order granting leave to appeal has the effect of filing a notice of appeal. The court may specify the issue or issues that it will review in the appeal. If the court grants leave to appeal, the petitioner shall file a docketing statement if required by s. 809.10(1)(d) identifying the issues to be reviewed in the appeal. The docketing statement shall be filed within 11 days after the date of the order granting the petition for leave to appeal.

COMMENT TO § 809.50(3): Subsection (3) is amended to clarify the docketing statement requirements following the grant of a petition for leave to appeal a non-final order.

#52. SECTION 809.62(4) is amended to read:

809.62(4) The petition for review and response, if any, shall conform to

s. 809.19 (8) (b) and (d) as to form and certification, shall be as short as possible, and may not exceed 35 pages in length if a monospaced font is used or 8,000 words if a proportional serif font is used, exclusive of appendix. The petition for review and response shall have a white front and back covers, and a party shall file 10 copies with the clerk of the supreme court.

#53. Introductory Note: This proposal revives the proposal contained in the Judicial Council's Rule Change Petition #00-02, held in abeyance by the Supreme Court pending its decision in State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292. The Nichols case was decided on Nov. 6, 2001.

SECTION 809.80(3), (4) and (5) of the statutes are created to read:

809.80 (3) Filing of papers; use of mail.

(a) Filing may be accomplished by any method. Except as provided in par. (b) and (c), filing is not timely unless the clerk receives the papers within the time fixed for filing.

(b) A brief or appendix is timely filed if, on or before the last day for filing, it is:

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

2. dispatched to a third-party commercial carrier for delivery to the clerk within 3 calendar days.

(c) A pro se brief or appendix from a person confined in an institution is timely filed if the brief or appendix is deposited in the institution's internal mailing system on or before the last day 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 deposited in the institution mailing system.

(4) Filing a petition for review.

(a) Except as provided in par. (b), a petition for review is timely filed only if the clerk actually receives the petition within the time fixed for filing.

(b) 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.

(5) Proof of filing date for brief or appendix.

(a) When a brief or appendix is filed by mail or commercial carrier in accordance with s. 809.80(3)(b), the attorney or person filing the document shall append a certification or affidavit setting forth the date and manner by which the document was mailed or dispatched. (b) If a certification or affidavit is appended, the clerk's office shall consider the brief or appendix filed on the date of mailing or dispatch set forth in the certification or affidavit. If no certification or affidavit is appended, the date of filing shall be the date on which the brief or appendix is received by the clerk's office. (c) The date shown on a postage meter does not establish that the document was mailed on that date.

COMMENT to § 809.80: Subsections (3) through (5) 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 it was physically received by the clerk, 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.

Subsection (3)(a) retains the general rule that a document is not filed until it is received by the clerk. However, sub. (3)(b) creates an exception for briefs and appendices. For those documents, a filing will be considered timely if, on or before the deadline, the brief or appendix is 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) dispatched to a commercial delivery service or delivery within 3 calendar days. When a brief or appendix is mailed or sent by commercial courier, subsection (5) requires that the party also file a certification or affidavit of mailing stating the date of mailing or dispatch.

The exception for briefs and appendices created in sub. (3)(b) does not apply to the filing of a petition for review under s. 809.62. The statement in sub. 809.80(3)(a) that filing may be accomplished by any method is not intended to permit electronic filing of papers or briefs.

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 deposited in the institution's internal mailing system. In order for the brief or appendix to be timely filed when deposited in the institution's internal mailing system, a certification or affidavit must be filed stating the date on which the brief or appendix was deposited in the institution's mailing system.

Subsection (4)(a) 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). Subsection (4)(b) expands the coverage of the rule set forth in State ex rel. Nichols v. Litscher, 2001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292, to include all pro se confined persons. Subsection (4)(b) 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.

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.

#54. SECTION 809.81(9) of the statutes is created to read:

809.81(9) Captions. Except as provided in s. 809.81 (8), the caption of any document shall include the full name of each party in the circuit court and shall designate each party so as to identify each party's status in the circuit court and in the appellate court, if any. In the supreme court, "petitioner" shall be added to the designation of a party filing a petition for review; the designation of a party responding to a petition for review shall remain the same as in the court of appeals.

COMMENT to § 809.81(9): Subsection (9) is created to clarify that the same caption should be used on all documents filed in an appellate case, and specifies that caption. Captions on pleadings and other documents filed pursuant to this rule are consistent with the current s. 809.19(9) requirement governing captions on briefs.

#55. SECTION 809.82 (2)(b) of the statutes is amended to read:

809.82(2)(b) Notwithstanding the provisions of par. (a), the time for filing a notice of appeal or cross-appeal of a final judgment or order other than in an appeal under s. 809.30 or s. 809.32 or 809.40(1) may not be enlarged.

#56. SUPREME COURT RULE 71.04(4) is amended to read:

71.04(4) Except as provided in

s. 809.30(2) and s. 967.06, Reporters' reporters' notes or other verbatim record of proceedings under ch. 48, 767 and 938 of the statutes shall be transcribed only upon order of the court.

COMMENT TO SCR 71.04(4): SCR 71.04(4) is amended to clarify and harmonize the rule with existing statutes and case law. Section 809.30(2)(fm) provides that any child pursuing post-judgment relief in a ch. 48 or 938 proceeding "shall be furnished at no cost" the transcript or record of the proceeding. Section 976.06 provides that in "any" public defender case, the public defender may request the applicable court reporter or circuit court clerk to prepare and transmit any transcript or court record and that the request "shall be complied with." State ex rel. S.M.O. v. Resheske, 110 Wis. 2d 447, 454, 329 N.W.2d 275, 277-78 (Ct. App. 1982), holds that s. 967.06 "takes precedence" over general confidentiality provisions in the statutes and creates a clear duty to prepare and transmit the transcript when requested pursuant to the statute.

Respectfully submitted:

James C. Alexander, Judicial Council

Petition Addendum

The Judicial Council respectfully petitions this Court for an order pursuant to Wis. Stat. § 751.12, adopting these proposed amendments to Wis. Stat. § 809.24. The proposed amendments are explained in the comments to the text supplied by the Judicial Council. The Judicial Council further respectfully petitions this court to publish the comments as Judicial Council Notes to the adopted amendments.

Section 809.24 of the statutes is amended to read:

809.24(1) Except as provided in sub. (4), a party may file a motion for reconsideration in the court of appeals within 20 days after the date of a decision or order issued pursuant to s. 752.41(1). The motion must state with particularity the points of law or fact alleged to be erroneously decided in the decision or order and must include supporting argument. No separate memorandum in support of the motion is permitted unless subsequently ordered by the court. The court may order a response before issuing an amended decision. No response to the motion is permitted unless ordered by the court. An amended decision or order will not be issued unless a response is ordered by the court. The motion and any response shall not exceed 5 pages if a monospaced font is used or 1,100 words if a proportional serif font is used.

(2) In response to a motion for reconsideration, the court shall issue an amended decision or order, or the court shall issue an order denying the motion.

(3) Nothing in this section prohibits the court from reconsidering a decision or order on its own motion at any time prior to remittitur if no petition for review is filed under s. 809.62 or, if a petition for review is filed, within 30 days after filing the petition for review.

(4) No motion for reconsideration of a court of appeals decision or order issued under s. 809.105 is permitted.

COMMENT TO § 809.24: The reference to an "order" of the court of appeals is deleted. Prior to 2001 WI 39, s. 809.24 applied to a "decision" of the court. To clarify that a summary disposition order was subject to reconsideration under

s. 809.24, a reference to "order" was added by 2001 WI 39. That amendment created confusion as to whether procedural orders issued by the court during the pendency of an appeal could be reconsidered under s. 809.24. However, reconsideration of procedural orders is available under s. 809.14. To eliminate the confusion created by 2001 WI 39, a reference to s. 752.41(1) was added and "order" was deleted. See In Interest of A.R., 85 Wis. 2d 444, 446, 270 N.W.2d 581 (1978) ("decision" as used in

s. 752.41(1) is the final decision disposing of the appeal).

The amendment also eliminates the requirement that the court of appeals order a response to a motion for reconsideration prior to amending a decision. Often a motion for reconsider-ation will bring the court's attention to a minor factual misstatement that may be corrected without the benefit of a response. The court of appeals retains the option to order that a response be filed, if it determines that a response will assist the court.

Respectfully submitted:

James C. Alexander, Judicial Council

Citation to Unpublished Opinions

In the matter of the amendment of Wis. Stat. § 809.23(3) regarding citation to unpublished opinions.

Order 02-02

On May 31, 2002, an amended petition was filed seeking to amend Wis. Stat. § 809.23 (3) to allow for the citation of unpublished opinions.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Oct. 22, 2002, at 9:30 a.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing on rules petitions 02-02 and 01-15.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 14th day of June, 2002.

By the court:

Cornelia G. Clark, Clerk of Supreme Court

Amended Petition

The undersigned respectfully petition this court to consider whether an order should be entered, pursuant to Wis. Stat.

§ 751.12, adopting the following amendment to Wis. Stat. Rule 809.23(3).

SECTION 809.23(3) of the statutes is amended to read:

809.23(3) CITATION OF UNPUBLISHED OPINIONS. An unpublished opinion is of no precedential value, except that it may be cited in support of claim preclusion, issue preclusion or law of the case. An unpublished opinion issued on or after [insert effective date], that is not a per curiam opinion or a summary disposition order, may also be cited for its persuasive value, provided that the party citing the opinion files a copy of it with the court, serves a copy of it upon all parties together with the brief or other paper in which the opinion is cited and clearly discloses in all written materials and in all oral presentations that it is an unpublished opinion. Because an unpublished opinion is not precedent, it need not be distinguished or otherwise discussed by any court.

Respectfully submitted:

Howard B. Eisenberg, Patience D. Roggensack, Christopher G. Wren, Warren D. Weinstein

State Legislative Redistricting

In the matter of the adoption of procedures for original action cases involving state legislative redistricting.

Order 02-03

This matter comes before the court on its own motion. On Feb. 12, 2002, the court issued an opinion in an original action case, number 02-0057-OA, Jensen et al. v. Wisconsin Elections Board. et al., which involved state legislative redistricting. The court stated that "to assure the availability of a forum in this court for future redistricting disputes, we will initiate rulemaking proceedings regarding procedures for original jurisdiction in redistricting cases." The court indicated new procedures could include "provisions governing factfinding (by a commission or panel of special masters or otherwise); opportunity for public hearing and comment on proposed redistricting plans; established timetables for the factfinder, the public and the court to act; and if possible, measures by which to avoid the sort of federal-state court `forum shopping' conflict presented [in this case]." Jensen et al. v. Wisconsin Elections Bd. et al., 2002 WI 13, ¶24, 249 Wis. 2d 706, 639 N.W.2d 537. The court noted the procedures for addressing redistricting disputes implemented by the California Supreme Court. Id. at ¶24 & n.8 (citing Wilson v. Eu, 816 P.2d 1306, 1307 (Cal. 1991)); see also Legislature v. Reinecke, 507 P.2d 626 (Cal. 1973). The court emphasized that "redistricting remains an inherently political and legislative - not judicial - task." Jensen, 2002 WI 13, at ¶10.

IT IS ORDERED that a public hearing on this matter shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Monday, Oct. 14, 2002, at 9:30 a.m.

IT IS FURTHER ORDERED that comments on the matters set forth herein be filed in writing, with eight copies, with the Clerk of the Supreme Court, 110 E. Main St., Suite 215, Madison, WI 53703, on or before Monday, Oct. 7, 2002.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by publication of a copy of this order and of the petition in the official state newspaper once each week for three consecutive weeks and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 14th day of June, 2002.

By the court:

Cornelia G. Clark

Clerk of Supreme Court

Wisconsin Lawyer