Wis. Stat. § 809.801
Current through Acts 2023-2024, ch. 272
Wis. Stat. § 809.801
Comment, 2021
Although proposed s. 809.801 is new, the numbering reflects an effort to stay parallel with the section numbering of the circuit court eFiling rule, s. 801.18.
Section 809.801 is built on the template of the circuit court electronic filing rule, s. 809.18, with respect to structure, language, and procedure. There are no major differences between the two systems with respect to how electronic filing works. Sub.(2) (k) provides that the two rules "shall be interpreted consistently to the extent practicable".
At the direction of the supreme court, subs. (2) (b) and (c) provide for the use of an implementation schedule to govern the availability of electronic filing according to the type of proceeding involved and the type of court.
Sub. (3) (a) mandates that three types of filers participate in the electronic filing system. An exception for attorneys representing themselves was included in the circuit court electronic filing rule but is eliminated here. Experience has shown that electronic filing is straightforward to use, with minimal technical impediments and expense.
Subs. (3) (d) and (f) require electronic filing users to promptly opt in and opt out from the cases where they are representing parties or participating as litigants. Users are required to keep their contact information up to date to receive electronic service.
Under sub. (3) (j), persons filing documents in cases where they are not parties, such as amicus curiae, may register to use the electronic filing system and file a document.
Sub. (4) (am) provides that filing occurs when the document is submitted to the electronic filing system as long as it is accepted by the clerk at a later time. Extending the filing day to 11:59 p.m. is consistent with the circuit court electronic filing rule and federal court electronic filing rules. This supersedes the decision in St. John's Home v. Continental Casualty Co., 150 Wis. 2d 37, 441 N.W.2d 219 (1989), per curiam, requiring filing to occur only within the office hours of the clerk. This gives a user an extra few hours to file on the last day a document is due but does not otherwise affect the calculation of time. If a user submits a document or the court issues an order on a day when the clerk's office is closed, it is considered filed on the next day the clerk's office is open, except as provided by other statutes and rules, or by court order.
Since 2009, the appellate clerk has reviewed electronic briefs to make sure that rule requirements relating to form have been met. Together with s. 809.80 (5), subd. (4) (b) provides that the clerk may review all types of documents, both paper and electronic.
Sub. (4) (c) is consistent with s. 809.80 (2) (d), which provides that a document filed by a paper party will be served on the electronic users when the clerk scans and dockets the document and a notice of activity is generated.
Sub. (5) addresses how the first document or group of documents should be filed in each type of appellate proceeding.
Sub. (6) (a) provides that the electronic filing system now serves as the means of delivery between users for documents filed after the case is initiated. Electronic filing users will receive a notice of activity letting them know that a new document has been filed in the proceeding. Paper parties will continue to be served by traditional methods for both initiating and subsequent documents.
Sub. (6) (e) provides that if an email to a party is returned as undeliverable, the clerk will attempt to locate the party and correct the problem. The other parties must serve that party by traditional methods in the meantime.
Sub. (6) (f) outlines how mandatory electronic filing will be initiated on previously filed cases. The clerk will work with attorneys to opt in on their open cases and will provide voluntary users with instructions on how to participate in the electronic filing system if they choose.
Sub. (8) (a) requires electronic filing users to keep their hardware, software, and staff training up to date with the minimum requirements set by the court.
Under former s. 809.18 (12), the supreme court required that briefs, no-merit reports, and petitions for review be submitted in text-searchable portable document format (PDF). Sub. (8) (e) broadens this requirement to include most documents submitted to the court, including motions, writs and petitions. Appendices, exhibits, and affidavits must be submitted in portable document format but are not required to be text-searchable.
Sub. (8) (g) provides for the permissive use of external hyperlinks to sources of information such as published cases and statutes posted on the Internet. Hyperlinks come with a small amount of risk for the introduction of malicious software into the electronic filing system and into law office case management systems. For that reason, hyperlinks may be used only in accordance with guidance posted by the court, and the court may limit the sites that users may link to. The use of hyperlinks is not required.
Sub. (9) provides that appellate court case files going forward will be kept electronically. Mandatory electronic filing users are required to file all documents electronically, with only a few exceptions. The documents submitted by paper parties will be imaged and converted to electronic format by the clerk of court. Because any paper submitted will be discarded after it is imaged, parties should not submit original documents to the court.
Sub. (12) (a) is amended to clarify the required format of an electronic signature. Handwritten signatures continue to be used despite the availability of electronic signatures and are permitted as long as the document is imaged and submitted through the electronic filing system. Either form of signature provides the level of accountability to client and court called for by the appellate rules. Compliance with this section is intended to satisfy the signature requirements of ss. 802.05 (1) and 809.19 (1) (h), as well as all other statutes and rules relating to court documents.
Sub. (12) (fm) is added to permit the use of electronic signatures for certifying briefs, appendices, and no-merit reports as to length, confidentiality, and client counseling.
Sub. (12) (g) responds to a recent legislative change requiring the signature of both counsel and parents on the notice of appeal in proceedings for termination of parental rights. A representation that all signatories have agreed to sign the document cannot be used in lieu of the parents' signatures in this situation.
Sub. (14) (b) refers to circuit court requirements regarding confidential, redacted, and sealed documents. Documents added to the circuit court record since 2016 should already be in compliance with ss. 801.19 to 809.21.
Sub. (15) (a) notes that circuit court transcripts are generally not filed directly with the appellate court. Transcripts are electronically transmitted by the clerk of circuit court as part of the record on appeal.
When transcripts are filed directly with the appellate court, sub. (15) (c) provides that arrangements for payment, copies and service shall be as directed by the court.