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.
Wisconsin
Lawyer