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Notice of Appeal – Indigency Filing – by Fax

State v. Ronald G. Sorenson, 2000 WI 43, 234 Wis. 2d 648, 611 N.W.2d 240, reversing unpublished decision of court of appeals

Issue: “(W)hether Wis. Stat. § 801.16(2), under which ‘papers that do not require a filing fee’ may be filed by facsimile transmission, permits indigent parties to file a notice of appeal by facsimile.”

Holding: ¶5:

We hold that a notice of appeal may be filed by facsimile transmission because a notice of appeal is not a paper that requires a filing fee to confer jurisdiction. The court of appeals obtained jurisdiction over this appeal when the clerk of the circuit court received Sorenson’s facsimiled notice of appeal within the statutorily prescribed time frame.

This is a Ch. 980 case. Sorenson, who was indisputably indigent, was appointed an attorney who faxed the notice of appeal to the clerk’s office on the last day for filing the notice of appeal. (Because 980 was then under civil appellate rules, the appeal deadline couldn’t be extended. § 809.82(2)(c).) Prior authority established that only papers not requiring filing fees could be filed by fax. Pratsch v. Pratsch, 201 Wis. 2d 491, 494-95, 548 N.W.2d 852 (Ct. App. 1996). The court of appeals nonetheless applied a uniform ban to fax-filing of all notices of appeal, fee-waived or not, because an assessment of indigency might not be made until after the notice of appeal was filed. ¶13. The supreme court reverses, making several points in the process. First, a notice of appeal filing fee isn’t a jurisdictional requirement; that is, failure to pay the fee at the time of filing isn’t fatal to jurisdiction. ¶¶18, 25. Second, an indigent isn’t required to pay a filing fee at any time during the appellate process. ¶26. Third, the appellate rules of procedure don’t specify that a notice of appeal must be accompanied by a filing fee. ¶27. Emphasizing that all litigants should be treated the same, the court holds that all litigants — indigent or not — may file notices of appeal by fax, overruling Pratsch. ¶28. The obligation to pay fees, in other words, may be determined after the fact. ¶29. The court cautions that a timely notice of appeal is an irrevocable requirement. ¶33. Moreover, this holding doesn’t mean that all documents can be filed by fax: papers requiring payment of a fee at the time of filing can’t be filed by fax, § 801.16(2); additionally, permission to file by fax must be secured by local rule or judge. ¶35.

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