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Appeal notice via fax will do, court rules

A notice of appeal may be filed by facsimile transmission, the Wisconsin Supreme Court held on May 26. In so holding, the court overruled the decision holding to the contrary in Pratsch vs. Pratsch, 201 Wis.2d 491, 548 N.W.2d 852 (Ct.App.1996).Ronald G. Sorenson was found by a Juneau County jury to be a sexually violent person. On July 29, 1998, the circuit court entered the judgment and issued a commitment order. Sorenson, who is indigent, sought to appeal the order, and a Madison-based attorney was appointed by the SPD to represent him.The deadline for filing an appeal was Oct. 27, 1998. On that date, Sorenson’s attorney transmitted the notice of appeal via facsimile to the Clerk of Circuit Court for Juneau County, and to opposing counsel. On the same day, he mailed a copy to the clerk with a cover letter referencing the facsimile. That copy was received on the 28th.The Court of Appeals dismissed the appeal in an unpublished decision, concluding that the notice of appeal was not timely filed, relying on the Pratsch decision. In Pratsch, the court of appeals held that a notice of appeal may not be filed by facsimile, because Section 801.16(2) prohibits filing by fax those documents which require a filing fee.The Supreme Court accepted review to decide the narrow issue of whether indigent persons may file a notice of appeal by fax, because a filing fee is not required for such persons. The court went further, however, and held, in a decision by Justice Prosser, that all parties may file a notice of appeal by facsimile, whether indigent or not.The court held that the filing of a notice of appeal does not “require” a filing fee for several reasons. First, the court noted that payment of the fee is not a jurisdictional requirement, although failure to pay may result in subsequent dismissal of the appeal. Second, indigent persons need not pay the filing fee at any time during the appeal. Finally, in actual practice, many parties do not submit their filing fees simultaneous with the notice of appeal, but pay them later. Accordingly, the court concluded that the statute does not “require” indigent persons to pay a filing fee with the notice of appeal, and thus, the notice may be filed via facsimile.Recognizing that a rule permitting some, but not all, parties to file via facsimile would undermine the uniformity of appellate procedure, the court then held that all appellants may file in this manner. The decision thus overrules the holding in Pratsch. Accordingly, the court reversed the court of appeals.It is important to note that the decision does not permit parties to file the notice of appeal by fax in all instances. Section 801.16(2)(a)-(c) requires attorneys to secure permission pursuant to either local court rule or from the circuit court judge, and provides that an attorney, by filing by fax, “certifies that permission of the judge or court … has been granted.” In this case, Sorenson’s attorney obtained permission from the clerk of court, and noted that permission in his accompanying cover letter. The same safeguards should be used by others filing a notice of appeal or any other document by fax.The case is In re the Commitment of Ronald G. Sorenson: State vs. Sorenson, No. 98-3107.

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