2021 Wisconsin Statutes & Annotations
Chapter 809 - Rules of appellate procedure.
809.41 - Rule (Motion for 3-judge panel or hearing in county of origin).

809.41 Rule (Motion for 3-judge panel or hearing in county of origin).

(1) Motion for 3-judge panel.

(a) If an appellant desires the matter to be decided by a 3-judge panel, the appellant shall file a motion for a 3-judge panel with the notice of appeal required by s. 809.10 (1) (a). Service of the appellant's motion shall be as provided by s. 809.10 (1) (h).

(b) If a petitioner requesting the court of appeals to exercise its supervisory jurisdiction or its original jurisdiction to issue prerogative writs desires the matter to be decided by a 3-judge panel, the petitioner shall file a motion for a 3-judge panel in the court of appeals with the petition requesting the court to exercise its supervisory or original jurisdiction. Service of the petitioner's motion shall be provided by traditional methods.

(c) If a petitioner requesting the court of appeals to exercise its appellate jurisdiction to grant petitions for leave to appeal desires the matter to be decided by a 3-judge panel, the petitioner shall file a motion for a 3-judge panel in the court of appeals with the petition for leave to appeal. Service of the petitioner's motion shall be as provided in s. 809.50 (1).

(d) If any other party desires the matter to be decided by a 3-judge panel, the party must file in the court of appeals a motion under this rule for a 3-judge panel within 14 days after service of the notice of appeal or with the response to the petition.

(e) The failure to file a motion under this section waives the right to request the matter to be decided by a 3-judge panel.

(f) A motion for a 3-judge panel in a case in which the state is a party shall also be served upon the attorney general. If the motion is filed with a petition for leave to appeal, service on the attorney general shall be provided as in s. 809.50 (1m). The attorney general may file a response to the motion within 11 days after service.

(2) Decision on motion for 3-judge panel. The chief judge may change or modify his or her decision on a motion that the matter be decided by a 3-judge panel at any time prior to a decision on the merits of the appeal or petition.

(3) Three-judge panel on court's own motion. Whether or not a motion for a 3-judge panel has been filed, the chief judge may order that an appeal or petition be decided by a 3-judge panel at any time prior to a decision on the merits of the appeal or petition.

(4) Motion for hearing in county of origin. If an appellant desires that the appeal be heard in the county where the case or action originated under s. 752.31 (3), the appellant shall file in the circuit court, with the notice of appeal required by s. 809.10 (1) (a), a motion requesting a hearing in the county of origin. Service of the appellant's motion shall be as provided in s. 809.10 (1) (h). If any other party desires the matter to be heard in the county of origin, the party must file in the court of appeals a motion within 14 days after service of the notice of appeal. The failure to file a motion under this subsection waives the right to request the appeal be heard in the county where the case or action originated.

History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981); Sup. Ct. Order 151 Wis. 2d xvii (1989); 1993 a. 486; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 20-07, 2021 WI 37, filed 4-23-21, eff. 7-1-21.

Judicial Council Committee's Note, 1979: Sub. (3) is created to clarify that the chief judge of the Court of Appeals has the authority to order that an appeal be decided by a 3-judge panel after it has initially been assigned to a single Court of Appeals judge. This authority of the chief judge may be exercised at any time prior to a decision on the merits of the appeal by the single Court of Appeals judge to whom the appeal was originally assigned. [Re Order effective Jan. 1, 1980]

Judicial Council Committee's Note, 1981: Rule 809.41 is amended to harmonize with ch. 192, Laws of 1979.

Sub. (1) is amended to apply the procedure for requesting a 3-judge panel for appeals to other proceedings in the types of case specified in s. 752.31 (2). The rule is also amended to require that if the motion for 3-judge panel is in a case in which the state is a party the motion must be served upon the attorney general as well as all persons of record. If the district attorney files the motion for 3-judge panel, the district attorney must serve the motion on the attorney general. The attorney general is given 7 days to respond to the motion.

The rule is further amended to require that the motion for 3-judge panel be filed with the copy of the notice of appeal required to be sent to the clerk of the court of appeals under Rule 809.10 (1) (a) and not with the original notice of appeal filed with the clerk of the circuit court.

Subs. (2) and (3) are amended to clarify that their provisions may apply to both an appeal and a petition requesting the exercise of supervisory jurisdiction or original jurisdiction to issue a prerogative writ.

Section 752.31, as amended by ch. 192, Laws of 1979, provides for a hearing in the county of origin for appeals but not for other proceedings such as a petition for supervisory writ or original jurisdiction prerogative writ. Sub. (4) is created to set out in a separate subsection of Rule 809.41 the procedure to request that an appeal be heard in the county where a case or action originated as authorized under sub. 752.31 (3). The creation of this separate subsection makes no substantive change in the prior procedure that was contained in Rule 809.41 (1). The rule requires that the motion for hearing in county of origin be filed with the copy of the notice of appeal required to be sent to the clerk of the court of appeals under Rule 809.10 (1) (a).

Rule 809.41 is also amended to clarify that the appeal or petition is decided rather than heard, as oral argument may not occur in all matters filed in the court of appeals. [Re Order effective Jan. 1, 1982]

Judicial Council Note, 2001: Titles were added. The time limits in sub. (1) and sub. (4) have been changed from 7 to 11 and 10 to 14 days. See the comment to s. 808.07. [Re Order No. 00-02 effective July 1, 2001]

NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule."

Comment, 2021: The motions addressed by this section may accompany direct appeals, petitions for leave to appeal, petitions for writs, or original jurisdiction matters. This section provides that motions in appeals and leave to appeal proceedings will be electronically served, while supervisory writs and original jurisdiction proceedings will use traditional service. This section is reorganized to reflect the different modes of service.