The Wisconsin Court of Appeals
On April 5, 1977, Wisconsin voters ratified a constitutional amendment reorganizing the state court system.
An integral part of that reorganization was the creation of an "intermediate" appellate court-the Wisconsin
Court of Appeals-to hear appeals from circuit courts around the state.
The Court's 16 judges are elected and
serve in four districts, with headquarters in
Madison, Milwaukee, Waukesha and Wausau. Like the Supreme Court, the Court of Appeals takes no testimony. Cases are decided based on the trial court record and written briefs
and, in a limited number of cases, oral argument. Any citizen may appeal a final order or judgment of a circuit court to the Court of Appeals. Appeals of non-final orders-those not finally
disposing of the case at hand-are taken at the Court's discretion.
Caseload
The Court of Appeals had 3,577 cases filed in 1998. This is up more than 50 percent from a decade ago. The Court has continued to work hard on its caseload and terminated 3,777 cases in 1998. And while the bulk of those dispositions (1,937) were in the form of summary orders or memorandum opinions, the Court's sixteen judges wrote a total of 1,558 full and per curiam opinions.
As in the trial courts, criminal appeals continued to dominate the caseload in 1998. Of the 3,777 cases disposed of, 40 percent were criminal matters. While the huge increase in filings continues to restrict the time the Court has available for oral argument, the number of arguments held has been increasing gradually in recent years, standing at between 50 and 60 per year for the past several years.
Precedential Value of Opinions
Under Rule 809.23, Stats., selected "judge-authored" opinions of the Court of Appeals are published in the official reports: Callaghan's Wisconsin Reports and West's North Western Reporter. Published opinions have precedential value and may be cited as controlling law in Wisconsin. Unpublished opinions, on the other hand, are not precedential and may not be cited as authority in any Wisconsin court.
Rule 809.23 sets forth criteria for publication of a Court of Appeals opinions-including whether it enunciates a new rule or modifies, criticizes or clarifies an existing rule of law, whether it resolves a conflict in prior decisions, whether it contributes to the legal literature and whether it decides a case of substantial and continuing public interest. Under §§ 752.31 (2) and (3), Stats., single-judge, per curiam and "summary" opinions are generally not eligible for publication. Thus the initial publication decision is made by the deciding panel, which determines, based in large part on the publication criteria, the format an opinion will take-judge-authored, per curiam or summary. In addition, all judge-authored opinions contain a written recommendation by the deciding panel whether to publish or not.
The final publication decision is made by a committee, which meets monthly, and is comprised of one judge from each of the four Court of Appeals districts and chaired by the chief judge. Committee members read and discuss each eligible opinion and, based on the criteria stated in the rule, vote whether or not to publish. Of the 499 full, three-judge opinions (the only kind eligible for publication) considered by the Court in 1998, 279 were ordered published. That represents 56 percent of eligible opinions and 19 percent of all written opinions (three-judge, per curiam, and single-judge opinions).
Court Automation
Keeping up with technological advances, Court of Appeals and Supreme Court opinions <Wisconsin_Court_of_Appeals_Opinions.html> were posted on the World Wide Web beginning in 1998. Opinions from 1995 to present can be accessed on the state court system's Web site. Opinions are posted on the morning of their release.
In addition, the publication Filing an Appeal: A Citizen's Guide to Filing an Appeal in the Wisconsin Court of Appeals is available on the Web site or by calling the Clerk's Office at (608) 266-1880.
Wisconsin Court of Appeals Process for Deciding Cases
From the Wisconsin Court of Appeals Internal Operating Procedures
(5) Opinions
(a) Form. The panel's decision and opinion is given in a form appropriate to the complexity and importance of the issues presented in the case. In cases involving new or unsettled questions of general importance, a full written opinion reciting the facts, the questions presented, and analysis of pertinent authorities and principles is rendered. Cases not involving such questions are decided by memorandum or per curiam opinion. A memorandum or per curiam opinion may reduce or omit the statement of facts and give only the reasons for the decision with a minimal analysis of the reasoning. Every decision is supported, at minimum, by a citation of the authority or statement of grounds upon which it is based. When the trial court's decision was based upon a written opinion or a statement upon the record of its grounds for decision that adequately express the panel's view of the law, the panel may incorporate the trial court's opinion or statement of grounds, or make reference thereto, and affirm on the basis of that opinion. All judges participating in a decision are identified in the opinion but do not sign the opinion. Immediately preceding the opinion writer's name, the opinion will read: "Before __________, P.J., __________ and __________, JJ." As examples: "Before Cane, P.J., LaRocque and Myse, JJ."; "Before Eich, C.J., Gartzke, P.J., and Dykman, J."; "Before Eich, C.J., Nettesheim, P.J., and Hansen, Reserve Judge."
(b) The assigned judge writes and circulates to the panel a proposed opinion based on the tentative decision. Judges are responsible for the preparation of all opinions.
(c) The panel reviews the proposed opinion. If all the deciding judges concur, the opinion becomes final. If a deciding judge thinks changes are necessary or disagrees with the decision, (she informs the opinion writer, preferably prior to opinion conference. The opinion writer may accept some or all of the suggestions. If substantial changes are made, the rewritten version is circulated.
(d) The deciding judges shall confer to consider unapproved opinions. Only those parts of the proposed opinion that produced differences among the judges are discussed. If a further rewriting is required, the opinion is recirculated and reconsidered.
(e) Following a written request from the author of an opinion, judges shall either approve of the opinion or file their dissent or concurrence within 5 days. Dissenting and concurring opinions are circulated to all the deciding judges.
(f) For a case assigned for a per curiam opinion, the judge assigned to the case supervises the preparation of the proposed opinion. The judge may rely on staff attorneys for assistance in drafting the opinion. If all three deciding judges agree with the disposition and reasons therefor, the per curiam opinion is released. As with signed opinions, judges are responsible for the preparation of all opinions.
(g) Each district shall designate a specific day of the week for release of its decisions and opinions. Unanimous opinions are filed with the clerk upon completion. Majority opinions, concurrences, and dissents are filed with the clerk together, following the 5-day period for preparing concurrences and dissents. All opinions and decisions are released to the parties and the public on the release day. The clerk, through a district secretary, notifies the parties as to the court's decision and releases opinions to the parties.
Before release, the decisions and opinions are delivered to the clerk along with a tentative list of the decisions and opinions to be released. The tentative opinion list is made available to the public upon receipt by the clerk but in no event will the list be made available more that 5 days before actual release. The clerk dockets and files the opinions on the indicated release dates.
(h) A panel or judge may appropriately render oral opinions from the bench in cases that are orally argued. Oral decision should be made only if the panel or judge making the decision is thoroughly acquainted with the briefs and record before argument and has the opportunity to defer decision if there is any doubt about the decision or the propriety of it being rendered orally. The oral decision shall be recorded, transcribed, and filed as the written decision, pursuant to sec. 752.41(1), Stats.
(i) When desirable for the purpose of maintaining doctrinal consistency, the proposed opinion draft may be circulated to members of another panel considering or about to consider a similar case. Opinions are promptly delivered to each member of the publication committee.
(j) A decision other than affirmance, or reversal with directions to render judgment for the appellant, states what course of action is to be followed in the court below and the rules to be applied therein so far as they are within the issues decided.
(6) Reconsideration.
Parties may promptly file requests with the clerk regarding reconsideration of a decision or order following the issuance of the decision or order. The court is obliged to consider such requests but need not respond to them. In the event of reconsideration, the court will reconsider by opinion or order. When a petition for review is filed with the Supreme Court, the clerk notifies the appropriate panel.
(7) Publication.
(a) The opinion writer may make a recommendation to the deciding judges whether the opinion should be published. The deciding judges shall make a final recommendation to the publication committee regarding publication. The panel's recommendation regarding publication is inserted following the decision as the final line on the panel's opinion. A copy of the filed opinion with the panel's publication recommendation is distributed to the Chief Judge, the judges designated by each panel to sit on the publication committee, and the chief staff attorney.
(b) The judge selected by the Court of Appeals judges of each district shall represent that district on the publication committee. The judge is expected to consult with the judges of the district regarding publication prior to the publication conference.
(c) The chief staff attorney, after consultation with the staff attorneys, may prepare a memorandum analyzing the publication position taken by the parties in their briefs, potentially conflicting opinions from other panels, and recent applicable pronouncements by the United States and Wisconsin Supreme Courts. Publication memoranda are distributed to the publication committee.
(d) The Chief Judge or his or her designee calls a monthly publication conference at which the publication committee makes a determination as to which opinions should be published. At the conference, the committee considers all opinions reviewed under this procedure to date. Opinions are published upon a majority vote of the committee.
(e) After the publication decision is made, the court issues an appropriate publication order. The publication order will name the judges who made the publication decision. Opinions for publication are delivered to the court's publication clerk for processing to the official reporters and the State Bar of Wisconsin. By definition, the court's summary disposition orders and memorandum opinions are within the nonpublication criteria of Rule 809.23(1) because they speak for the court and are unsigned. For this reason the court's publication orders will not include summary disposition orders and memorandum opinions.
(8) Remittitur.
Following the decision and the filing of the opinion, the district office returns the record to the clerk. The clerk remits the record pursuant to Rule 809.26. In the event that the Court of Appeals, on it own motion, decides to reconsider the case, pursuant to Rule 809.24, the clerk returns the record as needed to the district office. Prior to remitting, the clerk taxes costs and fees pursuant to Rule 809.25.
(9) Remand from Supreme Court.
When the Supreme Court remands a case to the Court of Appeals for further proceedings, the matter is referred to the appropriate panel of judges. The panel may direct that oral arguments be heard or may proceed to consider the Supreme Court's opinion and take the necessary action at a regularly or specially called conference.
(10) Petitions for Supervisory Writs and Original Jurisdiction Prerogative Writs.
(a) Petitions and supporting memoranda for supervisory writs and original jurisdiction prerogative writs are filed with the clerk. Any requests for temporary relief must be included with the petition. The clerk delivers the petition and supporting memoranda to the staff attorney for the appropriate district. The staff attorney reviews the petition and reports it to the Presiding Judge of the appropriate panel. The Presiding Judge may deny the petition ex parte or order that a response be filed and, in event of the latter, may order that temporary relief be granted. The staff attorney prepares the appropriate order to be issued by the clerk. Where a response is ordered, the order sets forth the time which the response must be filed. The order also specifies the terms and conditions of any temporary relief granted.
(b) Responses are filed with the clerk. The clerk delivers the response and any supporting documents and memoranda to the staff attorneys. The staff attorneys analyze the issues raised in the petition and submit to the panel a petition memorandum describing the nature of the issue. The memorandum, together with all the petition papers, is delivered to the panel prior to the court's consideration. The panel acts on the petition at a motion conference. The panel may direct that the petition be heard at oral argument. The staff attorney drafts an appropriate order implementing the court's decision, to be approved by the Presiding Judge and issued by the clerk.
(c) Parties seeking temporary relief should petition a specific judge of the appropriate panel, pursuant to Rule 809.52, only when immediate (less than that 24-hour) relief is required. For all other situations, parties should file their request with the clerk. The central staff attorney assigned to the district reviews the request and reports it to the Presiding Judge, or his or her designee, as described above. This procedure is intended to assure efficient court operations, efficient consideration of the petitions, and the least expensive procedure for the parties and their attorneys.
(11) No Merit Reports.
Staff attorneys review no merit reports, defendants' responses, if any, and the case record, and submit to the appropriate panel an independent recommendation as to whether the report should be accepted, held in abeyance pending further action, or rejected. If the recommendation is to accept, staff attorneys draft a per curiam opinion or summary order affirming the matters appealed and relieving the attorney of further responsibility on the appeal. If the recommendation is to hold in abeyance or reject, staff attorneys draft an explanatory letter or order to the attorney. The opinions and/or letter or orders are circulated to the deciding judges. The judges consider the proposals and return them to the staff attorneys with their comments and votes. No merit reports are only accepted upon a unanimous vote of the deciding judges.
In the event a defendant files a response to the no merit report that raises factual matters beyond the record, the defendant's claims are reviewed to determine if they are inherently incredible. As a matter of policy, the court rarely finds that such claims are so inherently incredible that they can be rejected without further investigations. No merit reports can be held in abeyance pending further investigations, action, proceedings, and filing of a supplemental report withdrawing or reaffirming the no merit report. The claims can also be accepted as true, but rejected where no relief is available as a matter of firmly established law. If the defendant's claims cannot be resolved by using one of these techniques or requires the Court of Appeals to find facts, the report is rejected and returned to the attorney for further investigation.
Further, as a matter of policy, if the attorney in addressing an issue cites actions or procedures, such as those of the Department of Health and Social Services, outside the record, the no merit report is either held in abeyance or rejected and the attorney directed to initiate the appropriate procedure to clarify the matter on the record.
(12) One-Judge Appeals.
(a) For appeals of cases specified in sec. 752.31(1), Stats., a motion for a three-judge panel or for the appeal to be heard in the county of origin must be filed as required by Rule 809.41. Upon receipt, the clerk delivers the motion for a three-judge panel to the central staff attorney assigned to the district. The staff attorney analyzes and reports the motion to the Chief Judge who directs that an order be issued either granting or denying the motion. If the motion is granted, the clerk notifies a district secretary of the appropriate panel, and the appeal proceeds under the procedures for three-judge appeals. As with three-judge appeals, the clerk will notify the parties of the date of submission.
(b) Motions and petitions in appeals of cases specified in sec. 752.31(2), Stats., are decided by one Court of Appeals judge.
(13) Indigency.
If a person seeking to proceed in the Court of Appeals claims to be indigent, that claim will be accepted if an indigency determination as to that person has been previously made in the Court of Appeals or in the circuit court, except that if the court of appeals has reason to believe that the person's circumstances have materially changed since his or her last indigency determination, the court may request that the person complete a new affidavit of indigency. In addition, the court of appeals may request that the person complete a new affidavit of indigency if more than one year has passed since the person last filed an affidavit of indigency with the court of appeals. If no indigency determination has been previously made, the clerk sends the person an affidavit of indigency to be completed and returned. The affidavit is accompanied by a form order requiring completion and filing of the affidavit within 10 days of the date of the order or, failing which, ordering the dismissal of the proceeding.
The clerk makes indigency determinations based upon monetary guidelines established by the court. If the person is determined to be indigent, the clerk issues an order waiving payment of the filing fee in the proceeding. If the affidavit of indigency is incomplete or is not credible, the clerk issues an order stating that the affidavit of indigency is incomplete or is not credible, or the reasons for which the affidavit is deemed incredible, stating that the affidavit is not approved, and requiring the person either to pay the appropriate filing fee or submit a credible and completed affidavit within five days of the date of the order, failing which the proceeding will be dismissed.
If the clerk determines on the basis of a complete and credible affidavit that a person is not indigent, the clerk issues an order directing the person to pay the appropriate filing fee in the proceeding. If the person does not respond to a court order concerning indigency, the clerk assigns the matter to a staff attorney for review and reporting to the court, with recommendations for the disposition thereof.
 Court of Appeals chart in pdf format... (size: 19.8 Kbytes) |
Court of Appeals and the current appellate judges - http://www.wicourts.gov/about/organization/appeals/
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