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    Wisconsin Lawyer
    February 01, 2003

    Practice Tips

    On Jan. 1, 2003, amendments to section 809.80 of the Rules of Appellate Procedure significantly change how briefs and appendices are filed in the supreme court and court of appeals.

    Margaret Carlson

    Wisconsin Lawyer
    Vol. 76, No. 2, February 2003

    Changes in Filing Briefs and Appendices in Appellate Courts

    On Jan. 1, 2003, amendments to section 809.80 of the Rules of Appellate Procedure significantly change how briefs and appendices are filed in the supreme court and court of appeals.

    by Margaret Carlson

    Numerous revisions to the Rules of Appellate Procedure became effective on Jan. 1, 2003, as the second part of a comprehensive revision to those rules initiated by the Judicial Council and enacted by the Wisconsin Supreme Court. The most recent supreme court order, 2002 WI 120, contains primarily "follow-up" amendments to the original rule revisions that were effective on July 1, 2001.1 Section 58 of 2002 WI 120, however, amends Wis. Stat. Rule 809.80, concerning the filing of briefs and appendices in the supreme court and court of appeals, and it significantly changes prior practice. With this change, Wisconsin procedure is now similar to that in the Seventh Circuit and many other state courts.

    Prior to this revision, a brief or appendix was "filed" when it was physically received by the clerk of the supreme court or court of appeals and the clerk determined that the brief or appendix complied with the requirements of Wis. Stat. Rule 809.19.2 As now amended, Rule 809.80(3)(b) provides that a brief or appendix will be timely filed upon "mailing" - but only if several requirements are met.

    1) The brief or appendix must be correctly addressed to the clerk of the supreme court or court of appeals.3

    2) The brief or appendix must be deposited in the U.S. mail, postage prepaid, using first-class mail or other class of mail that is at least as expeditious. Alternatively, the brief or appendix may be delivered to a third-party commercial carrier for delivery to the clerk within three business days.

    3) A certification or affidavit setting forth the date of mailing or the date of delivery to the third-party carrier must be appended to the brief or appendix.4

    If no certification or affidavit is appended, the document will be considered "filed" when it is received by the clerk.5 The date of mailing cannot be established by the date shown on a postage meter.6

    It is very important to note that these changes do not apply to the filing of a petition for review. A petition for review is timely filed only if the clerk receives the petition within the time fixed for filing.7

    The revision also creates a special rule for the filing of a pro se brief or appendix by a person confined in an institution. Under Rule 809.80(3)(c), a pro se brief or appendix from a person confined in an institution is timely filed if it is correctly addressed and delivered to the proper institution authorities for mailing on or before the last day of the time fixed for filing. Similar to the general rule, the brief or appendix must be correctly addressed and a certification or affidavit must be appended setting forth the date on which the document was delivered to the proper institution authorities for mailing. This brief filing rule for persons confined in an institution is consistent with the rationale underlying the supreme court's decision in State ex rel. Nichols v. Litscher.8

    Finally, the revision also codifies the Litscher holding concerning the filing of a pro se petition for review by a prisoner and expands the holding to apply to any person confined in an institution. Under Rule 809.80(3)(e), the time limit for the clerk's receipt of a pro se petition for review is tolled on the date that the confined person delivers a correctly addressed petition to the proper institution authorities for mailing. As with a brief or appendix, the confined person also must file a certification or affidavit setting forth the date on which the petition was delivered to the proper institution authorities for mailing.

    Endnotes

    1See 2000 WI 02. See also Marla J. Stephens, Understanding the New Rules of Appellate Procedure, 74 Wis. Law. 14 (July 2001).

    2The authority of the clerk to monitor compliance with Wis. Stat. Rule 809.19 is not affected by the amendment of Wis. Stat. Rule 809.80. If a brief or appendix does not comply with the rules, the clerk will notify all parties of the noncompliance and subsequent correction so that the briefing deadlines are clear. See Wis. Stat. Rule 809.19(3)(a)1. (deadline for respondent's brief commences on later of: a) service of appellant's brief plus three days if brief served by mail; b) date on which court accepts appellant's brief for filing; or c) date on which record is filed) and Wis. Stat. Rule 809.19(4)(a) (deadline for reply brief commences on later of: a) service of respondent's brief plus three days if brief served by mail; or b) date on which court accepts respondent's brief for filing).

    3P.O. Box 1688, Madison, WI 53701-1688.

    4Wis. Stat. Rule 809.80(4).

    5Wis. Stat. Rule 809.80(4)(b).

    6Wis. Stat. Rule 809.80(4)(c).

    7Wis. Stat. Rule 809.80(3)(d). See First Wis. Nat'l Bank v. Nicholau, 87 Wis. 2d 360, 274 N.W.2d 704 (1979).

    82001 WI 119, 247 Wis. 2d 1013, 635 N.W.2d 292.

    Margaret (Peg) Carlson, Marquette 1980, is chief staff attorney for the Wisconsin Court of Appeals, Madison.


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