Supreme Court Orders
The Wisconsin Supreme Court sets a public hearing
for Nov. 13 to consider: 1) petitions and amendments to the statutes to
consolidate statutes that impose sanctions, 2) changes to the Supreme
Court Rules regarding eligibility for appointment as guardian ad litem,
and 3) changes to the statutes regarding publication of court of appeals
opinions and regarding petitions for review.
Consolidating statutes that impose
sanctions
In the matter of the amendment of Wis. Stat. §§
230.85, 767.293, 802.10, 804.01, 804.05, 804.08, 804.09, 804.11, 804.12,
805.03, 806.38, 807.21, 707.22, 807.23, 809.25, 814.025, 814.04, 814.29,
and 911.01 relating to the consolidation of statutes governing the
imposition of sanctions in actions and proceedings.
Order 99-07
On Dec. 1, 1999, the Judicial Council filed a petition seeking to
amend and consolidate several statutes governing the imposition of
sanctions in actions and proceedings. On Oct. 30, 2000, the Judicial
Council filed an amended petition.
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 Tuesday,
Nov. 13, 2001, 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 99-07
and 01-07.
IT IS FURTHER ORDERED that notice of the hearing be given by
publication of a copy of this order and of the amended 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 4th day of September, 2001.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Amended Petition 99-07
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. 230.85(3)(b) of the statutes is amended to read:
230.85(3)(b) If, after hearing, the commission finds that the
respondent did not engage in or threaten a retaliatory action it shall
order the complaint dismissed. The commission shall order the employee's
appointing authority to insert a copy of the findings and orders into
the employee's personnel file and, if the respondent is a natural
person, order the respondent's appointing authority to insert such a
copy into the respondent's personnel file. If the commission finds by
unanimous vote that the employee filed a frivolous complaint it may
order payment of the respondent's reasonable actual attorney fees and
actual costs. Payment may be assessed against either the employee or the
employee's attorney, or assessed so that the employee and the employee's
attorney each pay a portion. To find a complaint frivolous the
commission must find that either s. 814.025(3)(a) or (b) 807.23(1)(b)1.
or 2. applies or that both s. 814.025(3)(a) and (b) 807.23(1)(b)1. and
2. apply.
Note: Subsection (3) is amended by
inserting a cross-reference to subch. 11 of ch. 807, where sanction
provisions are consolidated.
SECTION 2. 767.293(6) of the statutes is amended to read:
767.293(6) Section 814.025 807.23 applies to the filing of an
affidavit under this section.
SECTION 3. 802.10(7) of the statutes is amended to read:
802.10(7) SANCTIONS. Violations of a scheduling or pretrial order are
subject to ss. 802.05, 804.12 and 805.03 subch. II of ch. 807.
SECTION 4. 804.01(2)(c)2. and (3)(b) of the statutes are amended to
read:
804.01(2)(c)2. A party may obtain, without the required showing, a
statement concerning the action or its subject matter previously made by
that party. Upon request, a person who is not a party may obtain without
the required showing a statement concerning the action or its subject
matter previously made by that person. If the request is refused, the
person may move for a court order. Section 804.12(1)(c) 807.22(1)(c)
applies to the award of expenses incurred in relation to the motion. For
purposes of this paragraph, a statement previously made is a written
statement signed or otherwise adopted or approved by the person making
it, or a stenographic, mechanical, electrical, or other recording, or a
transcription thereof, which is a substantially verbatim recital of an
oral statement by the person making it and contemporaneously
recorded.
(3)(b) If the motion for a protective order is denied in whole or in
part, the court may, on such terms and conditions as are just, order
that any party or person provide or permit discovery. Section
804.12(1)(c) 807.22(1)(c) applies to the award of expenses incurred in
relation to the motion.
SECTION 5. 804.05(5) of the statutes is amended to read:
804.05(5) MOTION TO TERMINATE OR LIMIT EXAMINATION. At any time
during the taking of the deposition, on motion of a party or of the
deponent and upon a showing that the examination is being conducted in
bad faith or in such manner as unreasonably to annoy, embarrass, or
oppress the deponent or party, the court in which the action is pending
may order the officer conducting the examination to cease forthwith from
taking the deposition, or may limit the scope and manner of the taking
of the deposition as provided in s. 804.01(3). If the order made
terminates the examination, it shall be resumed thereafter only upon the
order of the court in which the action is pending. Section 804.12(1)(c)
807.22(1)(c) applies to the award of expenses incurred in relation to
the motion.
SECTION 6. 804.08(1)(b) of the statutes is amended to read:
804.08(1)(b) Each interrogatory shall be answered separately and
fully in writing under oath, unless it is objected to, in which event
the reasons for objection shall be stated in lieu of an answer. The
answers are to be signed by the person making them, and the objections
signed by the attorney making them. The party upon whom the
interrogatories have been served shall serve a copy of the answers, and
objections if any, within 30 days after the service of the
interrogatories, except that a defendant may serve answers or objections
within 45 days after service of the summons and complaint upon that
defendant. The court may allow a shorter or longer time. The party
submitting the interrogatories may move for an order under s. 804.12(1)
807.22(1) with respect to any objection to or other failure to answer an
interrogatory.
SECTION 7. 804.09(2) of the statutes is amended to read:
804.09(2) PROCEDURE. Except as provided in s. 804.015, the The
request may, without leave of court, be served upon the plaintiff after
commencement of the action and upon any other party with or after
service of the summons and complaint upon that party. The request shall
specify a reasonable time, place, and manner of making the inspection
and performing the related acts. The party upon whom the request is
served shall serve a written response within 30 days after the service
of the request, except that a defendant may serve a response within 45
days after service of the summons and complaint upon that defendant. The
court may allow a shorter or longer time. The response shall state, with
respect to each item or category, that inspection and related activities
will be permitted as requested, unless the request is objected to, in
which event the reasons for objection shall be stated. If objection is
made to part of an item or category, the part shall be specified. The
party submitting the request may move for an order under s. 804.12(1)
807.22(1) with respect to any objection to or other failure to respond
to the request or any part thereof, or any failure to permit inspection
as requested.
SECTION 8. 804.11(1)(b) and (c) of the statutes are amended to
read:
804.11(1)(b) Each matter of which an admission is requested shall be
separately set forth. The matter is admitted unless, within 30 days
after service of the request, or within such shorter or longer time as
the court may allow, the party to whom the request is directed serves
upon the party requesting the admission a written answer or objection
addressed to the matter, signed by the party or attorney, but, unless
the court shortens the time, a defendant shall not be required to serve
answers or objections before the expiration of 45 days after service of
the summons and complaint upon the defendant. If objection is made, the
reasons therefor shall be stated. The answer shall specifically deny the
matter or set forth in detail the reasons why the answering party cannot
truthfully admit or deny the matter. A denial shall fairly meet the
substance of the requested admission, and when good faith requires that
a party qualify an answer or deny only a part of the matter of which an
admission is requested, the party shall specify so much of it as is true
and qualify or deny the remainder. An answering party may not give lack
of information or knowledge as a reason for failure to admit or deny
unless the party states that he or she had has made reasonable inquiry
and that the information known or readily obtainable by the party is
insufficient to enable the party to admit or deny. A party who considers
that a matter of which an admission has been requested presents a
genuine issue for trial may not, on that ground alone, object to the
request; the party may, subject to s. 804.12(3) 807.22(3) deny the
matter or set forth reasons why the party cannot admit or deny it.
(c) The party who has requested the admissions may move to determine
the sufficiency of the answers or objections. Unless the court
determines that an objection is justified, it shall order that an answer
be served. If the court determines that an answer does not comply with
this section, it may order either that the matter is admitted or that an
amended answer be served. The court may, in lieu of these orders,
determine that final disposition of the request be made at a pretrial
conference or at a designated time prior to trial. Section 804.12(1)(c)
807.22(1)(c) applies to the award of expenses incurred in relation to
the motion.
SECTION 9. 804.12 of the statutes is renumbered 807.22.
SECTION 10. 804.13 of the statutes is created to read:
804.13 FAILURE TO MAKE DISCOVERY; SANCTIONS. Motions to compel
discovery or requesting sanctions for discovery violations shall be
determined under ss. 807.21 and 807.22.
SECTION 11. 805.03 of the statutes is repealed.
SECTION 12. 806.3 8(2) of the statutes is amended to read:
806.3 8(2) Notwithstanding sub. (1), an increase or decrease in the
amount of prejudgment interest otherwise payable may be made in a
foreign-money judgment to the extent required by s. 802.05, 805.03 or
807.01.
SECTION 13. Subchapter I (title) of chapter 807 of the statutes is
created to read:
CHAPTER 807
CIVIL PROCEDURE MISCELLANEOUS PROVISIONS
SUBCHAPTER 1
MISCELLANEOUS PROVISIONS
SECTION 14. Subchapter II of chapter 807 [precedes 807.21] of the
statutes is created to read:
CHAPTER 807
SUBCHAPTER II
SANCTIONS AND FRIVOLOUS PROCEEDINGS
807.21 SANCTIONS. (1). APPLICABILITY. The court may impose a sanction
under this section against a person who violates s. 802.05(1) or
802.10(3)(b), who files a frivolous pleading or appeal under s. 807.23
or 809.25(3), who fails to prosecute a claim made in an action or
proceeding, who fails to comply with the statutes and rules governing
procedure in actions or proceedings, or who fails to obey an order of
any court of record.
(2) WHO MAY BE SANCTIONED. The court may impose a sanction under this
section against an attorney, a party represented by an attorney, or an
unrepresented party who is responsible for a violation or failure under
sub. (1).
(3) SANCTIONS AVAILABLE. After a hearing conducted in accordance with
subs. (4) and (5), a court may do any of the following:
(a) Order adjournments, continuances of the trial or other
proceedings, or reopening of discovery.
(b) Award reasonable costs, including expert and other witness fees,
costs incurred in the preparation or copying of medical reports, and
other costs under s. 814.036.
(c) Award reasonable attorney fees and expenses.
(d) Strike pleadings, claims, motions or other papers.
(e) Exclude witnesses or evidence.
(f) Dismiss claims. A dismissal under this section is an adjudication
on the merits unless the court specifies otherwise in its order.
(g) Grant judgment.
(h) Make any other order that justice requires.
(4) FACTORS. The court shall consider all of the following factors in
determining the appropriate sanctions under this section:
(a) Whether the violation or failure under sub. (1) was intentional,
reckless, negligent or inadvertent.
(b) The consequences resulting from the violation or failure under
sub. (1).
(c) When the person became aware of the violation or failure under
sub. (1) and whether and how promptly the person attempted to remedy the
violation or failure.
(d) The financial circumstances of the person, if the sanction
ordered involves the payment of money.
(e) Any other pertinent circumstances, whether mitigating or
aggravating.
(5) MOTION; HEARING. A motion for a sanction under this section may
be brought along with other motions to compel. A motion for a sanction
shall specify the conduct that is alleged to constitute the violation or
failure under sub. (1) and the sanction that is sought under sub. (3).
Upon the filing of the motion, or upon the court's own order for a
hearing, the court shall schedule a hearing before determining a
sanction. The order for the hearing shall specify the conduct believed
to constitute the violation or failure. A sanction may be imposed only
after a hearing.
Note: This omnibus sanction statute is
based on several provisions in prior law, as well as portions of Rule
11, F.R. Civ. P. The reference to "claim" in sub. (1) is intended to
include those made in cross-complaints and counterclaims. "Court of
record" includes a circuit court, the court of appeals or the supreme
court. For guidance on what constitutes a "reasonable" attorney fee
under sub. (3)(c), see Johnson v. Georgia Highway Express Inc., 488 F.2d
714 (5th Cir. 1974); Hensley v. Eckhart, 461 U.S. 424 (1983).
Subsections (1) to (5) are prior s. 804.12, renumbered for
placement with other sanction provisions.
807.22 (6) CERTIFICATE OF CONSULTATION. Discovery motions shall be
accompanied by a written statement by the moving party that, after good
faith consultation with the opposing party, the parties are unable to
agree. The statement shall also recite the date, time and manner of the
consultation and the names of all parties participating in the
consultation.
807.23 FRIVOLOUS PLEADINGS.
(1) In this section:
(a) "Court" means a circuit court, the court of appeals or the
supreme court.
(b) "Frivolous" means a pleading that meets one of the following
conditions:
1. The pleading was commenced, filed, used or continued in bad faith,
solely to harass or maliciously injure another.
2. The pleading was without reasonable basis in law or equity and
which the party, or the party's attorney, knows or should know cannot be
supported by a good faith argument for an extension, modification or
reversal of existing law.
3. The pleading was not well grounded in fact and there has been no
reasonable inquiry into its factual basis by the party or the party's
attorney.
(c) "Pleading" means a document listed in s. 802.01(1), motions under
s. 802.01(2) and any document submitted to the court related to an
action, special proceeding, claim, counterclaim, cross-claim, defense,
motion, appeal or cross-appeal.
(2) If the court finds that a pleading is frivolous, the court shall
strike or dismiss the pleading and may impose one or more sanctions
under s. 807.21 on the party or attorney responsible for its filing or
continuance. The court may apportion liability for costs, fees, attorney
fees and other monetary sanctions between the party and the attorney, as
appropriate. Absent exceptional circumstances, the members of a law firm
shall be jointly liable for frivolous pleadings filed or continued by
its partners, associates and employees.
(3)(a) A party may move the court for the imposition of sanctions. A
motion made under this section shall specify the pleading alleged to be
frivolous, one or more of the grounds under sub. (1)(b) as to why the
pleading is frivolous, and the sanctions sought by the movant. The
moving party shall support the motion by affidavit based on personal
knowledge.
(b) A motion alleging grounds under sub. (2)(b)2 or 3 may not be
filed unless notice of intent to file the motion is served on the party
against whom a sanction is sought at least 14 days, or such other longer
period as the court may prescribe, before the motion is filed with the
court and the party against whom a sanction is sought has not withdrawn
or appropriately corrected the pleading.
(c) A motion alleging a frivolous appeal shall be filed not later
than the date on which the respondent's brief is filed. A motion under
this section alleging a frivolous cross-appeal shall be filed not later
than the date that the cross-respondent's brief is filed. All other
motions alleging a frivolous pleading shall be filed before entry of
judgment, unless an earlier time is specified in a scheduling order.
Note: This section is a restatement of
provisions in Chs. 802, 809 and 814, Stats., 1993. Its coverage is
expanded to include motions and other papers, which are defined as
"pleadings." Subsection (1)(b)3 is new, but akin to the requirement in
s. 802.05 that pleadings certify reasonable inquiry into the facts and
law upon which they are based. Subsection (2) makes dismissal mandatory,
and allows the court to impose additional sanctions under the new
omnibus sanction statute, s. 807.21. Subsection (3) incorporates the
"safe harbor" feature of Rule 11(c)(1)(A), F.R. Civ. P. The safe harbor
is inapplicable if the pleading is alleged to have been filed in bad
faith, solely to harass or maliciously injure another. The time periods
in sub. (3)(c) for appeals and cross-appeals are based on s. 809.25(3).
The final sentence is new. Prior s. 814.025 was vague on the timing of
such motions, but did specify that a finding of frivolousness could be
made "at any time during the proceedings or upon judgment."
SECTION 15. 809.25(3)(a) of the statutes is repealed and recreated to
read:
809.25(3) FRIVOLOUS APPEALS. (a) if the court finds that an appeal or
cross-appeal is frivolous, the court shall dismiss the appeal or
cross-appeal and may impose sanctions under s. 807.23.
Note: Sanctions for frivolous pleadings
are prescribed in subch. II of ch. 807.
SECTION 16. Section 814.025 of the statutes is repealed.
Note: Sanctions for frivolous pleadings
and appeals are prescribed in subch. II of ch. 807.
SECTION 17. 814.04 of the statutes is amended to read:
814.04 ITEMS OF COSTS. Except as provided in ss. 93.20, 100.30(5m),
106.04(6)(I) and (6m)(a), 115.80(9), 769.313, 807.23, 814.025, 814.245,
895.035(4), 895.75(2), 895.77(2), 895.79(3), 895.80(3), 943.212(2)(b),
943.245(2)(d) and 943.51(2)(b), when allowed costs shall be as
follows:
SECTION 18. 814.29(3)(a) of the statutes is amended to read:
814.29(3)(a) A request for leave to commence or defend an action,
proceeding, writ of error or appeal without being required to pay fees
or costs or to give security for costs constitutes consent of the
affiant and counsel for the affiant that if the judgment is in favor of
the affiant the court may order the opposing party to first pay the
amount of unpaid fees and costs, including attorney fees under ss.
802.05, 804.12(1)(c) and 814.025, 807.22(1)(c) and under 42 U.S.C. 1988
and to pay the balance to the plaintiff.
Note: Subsection (3)(a) is amended by
inserting a cross-reference to subch. II of ch. 807, where sanction
provisions are consolidated.
SECTION 19. 911.01(4)(c) of the statutes is amended to read:
911.01(4)(c) Miscellaneous Proceedings. Proceedings for extradition
or rendition; sentencing, or granting or revoking probation, issuance of
arrest warrants, criminal summonses and search warrants; proceedings on
motions for sanctions under subch. II of ch. 807; proceedings under s.
971.14(1)(c); proceedings with respect to pretrial release under ch. 969
except where habeas corpus is utilized with respect to release on bail
or as otherwise provided in ch. 969.
Note: Subsection (4)(c) is amended to
exempt proceedings on motions for sanctions from the rules of evidence,
other than ch. 905 with respect to privileges.
Respectfully submitted,
Judicial Council
By James C. Alexander
GAL appointment
eligibility
In the matter of the amendment of Supreme Court Rules chapter
35 - Eligibility for Appointment as Guardian Ad Litem
Order 01-07
On April 5, 2001, the Joint Legislative Council filed a petition
seeking to amend Supreme Court Rule 35.01 and add 35.015 and 35.03(1m)
relating to the eligibility and education requirements for appointment
as guardian ad litem for a minor.
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 Tuesday,
Nov. 13, 2001, 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 01-07
and 99-07.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper 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 4th day of September, 2001.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Petition 01-07
The Joint Legislative Council, on the unanimous recommendation of the
Special Committee on Guardians Ad Litem in Actions Affecting the Family,
hereby petitions the court to amend SCR 35.01 and create SCR 35.015 and
SCR 35.03 (1m) relating to eligibility for appointment as guardian ad
litem for a minor.
First, the amendments create new eligibility requirements for
attorneys who accept appointments as a guardian ad litem in proceedings
under ch. 767, Stats. As amended, the rules would require an attorney to
have received six hours of approved guardian ad litem education during
the combined continuing legal education reporting period and the
immediately preceding reporting period. Three of the required six hours
would be in family court guardian ad litem education, as described
below. In addition, as under current rules, a court could also determine
that an attorney is qualified for a guardian ad litem appointment. The
provision under which an attorney may accept appointments if he or she
had attended 30 hours of guardian ad litem education would, therefore,
apply only to attorneys accepting guardian ad litem appointments in
proceedings under ch. 48 or 938, Stats. This change is requested because
the Special Committee concluded that attorneys practicing as guardians
ad litem should receive ongoing relevant education in order to
effectively represent the best interests of children in family law
disputes.
The second amendment would specify the elements of guardian ad litem
education that an attorney acting as a guardian ad litem in family court
must receive. The rationale for this change is that, due to the level of
conflict in family law cases for which a guardian ad litem is appointed,
the committee concluded that a guardian ad litem with knowledge about
child development and family dynamics could better formulate a
recommendation to serve a child's best interests.
The committee requests that SCR 35.01 (intro.) be amended to
read:
Commencing on July 1, 1999, a lawyer may not accept an appointment by
a court as a guardian ad litem for a minor in an action or proceeding
under chapter 48, 767 or 938 of the statutes unless one of the following
conditions has been met:
The committee requests that SCR 35.015 be created to read:
Commencing on July 1, 2002, a lawyer may not accept an appointment by
a court as a guardian ad litem for a minor in an action or proceeding
under chapter 767 of the statutes unless one of the following conditions
has been met:
(1) The lawyer has attended 6 hours of guardian ad litem education
approved under SCR 35.03 during the combined current reporting period
specified in SCR 31.01 (7) at the time he or she accepts an appointment
and the immediately preceding reporting period. At least 3 of the 6
hours shall be family court guardian ad litem education approved under
SCR 35.03 (1m).
(2) The appointing court has made a finding in writing or on the
record that the action or proceeding presents exceptional or unusual
circumstances for which the lawyer is otherwise qualified by experience
or expertise to represent the best interests of the minor.
The committee requests that SCR 35.03 (1m) be created to read:
(1m) The board of bar examiners shall approve courses of instruction
or continuing legal education activities as family court guardian ad
litem education that are on the subject of proceedings under chapter 767
of the statutes; child development and the effects of conflict and
divorce on children; mental health issues in divorcing families; the
dynamics and impact of family violence; and sensitivity to various
religious backgrounds, racial and ethnic heritages and issues of
cultural and socio-economic diversity. The board of bar examiners may
only approve courses of instruction or continuing legal education
activities that are conducted after July 1, 2001.
Publication of court of appeals
opinions
In the matter of the amendment of Wis. Stat. § 809.23
regarding publication of court of appeals opinions.
In the matter of the amendment of Wis. Stat. § 809.62(8)
regarding petitions for review.
Order 01-04, 01-08
On March 12, 2001, the Judicial Council filed a petition, number
01-04, seeking to amend Wis. Stat. § 809.23 to allow for the
partial publication of a court of appeals opinion.
On April 3, 2001, Judge Charles P. Dykman filed a petition, number
01-08, seeking to amend Wis. Stat. § 809.62(8) to allow a court of
appeals judge to file a response requesting the supreme court to grant a
petition for review.
IT IS ORDERED that a public hearing on these petitions shall be held
in the Supreme Court Room in the State Capitol, Madison, Wis., on
Wednesday, Nov. 28, 2001, 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 petitions 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 4th day of September, 2001.
By the court:
Cornelia G. Clark, Clerk of Supreme Court
Petition 01-04
The Judicial Council respectfully petitions this Court for an order
pursuant to section 751.12, Stats., adopting the following amendment to
Chapter 809, Rules of Appellate Procedure.
SECTION 809.23(2) of the statutes is created to read:
(2) Partial Publication.
(a) When a three-judge panel deciding an appeal or other proceeding
believes that some, but not all, of the issues raised in the case meet
the criteria for publication set forth in s. 809.23(1)(a), the panel may
file an opinion that decides only those issues that, in the opinion of
the panel, meet the publication criteria. That opinion shall be
recommended for publication. The remainder of the issues shall be
decided in a separate opinion or summary disposition order. All opinions
and orders under this paragraph shall be filed on the same date, and
each shall refer to the existence of the other.
(b) The requirement in para. (a) that opinions be filed on the same
date does not apply to an appeal or other proceeding in which a per
curiam opinion addressing an issue of appellate jurisdiction or
procedure is filed.
SECTION 809.23(2) through (5) are renumbered and amended to read:
(2)(3) Decision on Publication. The judges of the court of appeals
who join in an opinion in an appeal or other proceeding shall make a
recommendation on whether the opinion should be published. A committee
composed of the chief judge or a judge of the court of appeals
designated by the chief judge and one judge from each district of the
court of appeals selected by the court of appeals judges of each
district shall determine whether an opinion is to be published. If only
part of an opinion satisfies the criteria for publication under s.
809.23(1)(a), the committee may designate that only parts of an opinion
shall be published. The published portion of any such opinion may be
cited as precedent and the unpublished portion shall be considered to be
an unpublished opinion under s. 809.23(3)(4).
(3)(4) Unpublished opinions not cited. An unpublished opinion is of
no precedential value and for this reason may not be cited in any court
of this state as precedent or authority, except to support a claim of
res judicata claim preclusion, collateral estoppel issue preclusion, or
law of the case.
(4)(5) Request for publication.
(a) Except as provided in par. (b), any person may at any time file a
request that an opinion not recommended for publication or an unreported
opinion be published in the official reports.
(b) No request may be made for the publication of an opinion that is
a decision by one court of appeals judge under s. 752.31(2) and (3) or
that is a per curiam opinion on issues other than appellate jurisdiction
or procedure.
(c) A person may request that a per curiam opinion that does not
address issues of appellate jurisdiction or procedure be withdrawn,
authored and recommended for publication. That request shall be filed
within 20 days of the date of the opinion and shall be decided by the
panel that decided the appeal.
(d) A copy of any request made under this subsection shall be served
under s. 809.80 on the parties to the appeal or other proceeding in
which the opinion was filed. A party to the appeal or proceeding may
file a response to the request within 5 days after the request is
filed.
Comment: Most opinions released by the Court of
Appeals address several issues, of varying complexity and novelty. On
many occasions, a small portion of an opinion may meet the publication
criteria when the majority of the opinion involves well-settled law or
is largely fact-specific. Because only entire opinions may be published,
those opinions often are not published because the publication committee
determines that, on balance, publication is not appropriate.
These amendments would authorize the publication of partial opinions,
through the use of two complimentary mechanisms. Other states, most
notably Arizona, California and Michigan, provide for partial
publication in some fashion. Proposed Rule 809.23(2) authorizes the
panel of judges who decide an appeal or other proceeding to issue two
opinions addressing the merits of the case. One opinion would address
those issues that meet the publication criteria, and that opinion would
be recommended for publication. The second opinion or order would
address the remaining issues that do not meet the publication criteria.
The proposal requires that the two opinions or orders be released on the
same date and cross-reference each other.
For instances when the deciding panel issues a single opinion in an
appeal or other proceeding, proposed Rule 809.23(3) authorizes the
publication committee to order the publication of those parts of an
opinion that meet the publication criteria. The portion of an opinion
designated for publication could be cited as precedent and the
unpublished portion would be considered to be an unpublished
opinion.
These proposed amendments would serve to expand the precedent
available to the bench and bar without sacrificing the policy
considerations underlying the limitation on citation to unpublished
opinions. See In re Amendment to Section (Rule) 809.23(3), 155
Wis. 2d 832, 833-34, 456 N.W.2d 783 (1990).
Section 809.23(4) was updated to reflect the change in terminology
used by the courts with respect to claim preclusion, formerly referred
to as res judicata, and issue preclusion, formerly referred to as
collateral estoppel. See Northern States Power Co. v. Bugher,
189 Wis. 2d 541, 549, 525 N.W.2d 723, 727 (1995).
Respectfully submitted:
Judicial Council
by: James C. Alexander
Petitions for review
In re Wis. Stat. Rule 809.62 (1999-2000) Relating to requests
to grant or deny Petitions for Review
Petition 01-08
Charles P. Dykman petitions the Supreme Court to amend Wis. Stat.
Rule 809.62 (1999-2000) by creating (8), which would read substantially
as follows:
(8) After a party files a petition for review with the supreme court,
any Wisconsin Court of Appeals judge [alternatively, any member of the
court of appeals publication committee] may file with the clerk a motion
requesting that the supreme court grant the petition for review. The
motion's form shall be that of a s. 808.05(2) certification. The
judge shall send a copy of the motion to the parties.
Note: At a recent meeting of the court
of appeals publication committee, see Wis. Stat. § 809.23(2)
(1999-2000), the committee extensively discussed one of the cases which
the deciding panel had recommended for publication. The committee was
informed that a petition for review of the case had been filed with the
supreme court. Information concerning petitions for review is often
available to the committee and is sometimes discussed by the committee.
Some members of the committee believed that the opinion's result raised
issues which were not discussed in the opinion, but were substantial
issues of statutory and constitutional law which would meet the criteria
found in Rule 809.62(1) for consideration by the supreme court.
Discussions of this sort are recurring at meetings of the publication
committee, but are not common.
Before the court of appeals decides a case, it may file a
certification requesting that the supreme court accept a case for
review. See Wis. Stat. § 808.05(2) (1999-2000). In some court
of appeals majority or dissenting opinions the authors suggest that the
supreme court accept a petition for review. But there does not presently
appear to be a method for the court of appeals or its judges to ask the
supreme court to grant a petition for review.
The court of appeals, by virtue of its substantial caseload,
becomes aware of cases which raise recurrent issues. The publication
committee sometimes discusses in depth cases before it, and this
discussion can include the views of several court of appeals judges. In
some instances, views of court of appeals judges regarding the grant or
denial of a petition for review could be helpful to the supreme
court.
This petition is directed to the Supreme Court's rule making
authority under Wis. Const., art. VII, sec. 3(1) and Wis. Stat.
§ 751.12 (1999-2000).
Respectfully submitted on April 3, 2001:
Charles P. Dykman,
Presiding Judge,
District IV
Wisconsin Court of Appeals
Wisconsin Lawyer
