809.52 Annotation
There are a number of changes, however, from prior procedures. The parties in the action or proceeding in the trial court must be made respondents in the Court of Appeals because they in most cases are the real parties in interest. Usually the judge whose order is being challenged has no direct interest in the outcome and should not be forced to appear but may, of course, do so. The Attorney General must also be served in certain cases such as declaratory judgments involving the constitutionality of a statute or arising under Chapter 227, the administrative procedure act.
809.52 Annotation
The petition must be filed with the clerk rather than being submitted ex parte to a judge of the court. By virtue of the requirement that the petition be filed, it must previously have been served on opposing parties as required by s. 809.80. The initial action of the court will be to direct the respondents to answer the petition rather than to issue an order to show cause why the relief requested should not be granted. [Re Order effective July 1, 1978]
APPELLATE PROCEDURE IN SUPREME COURT
809.60
809.60
Rule (Petition to bypass). 809.60(1)
(1) A party may file with the supreme court a petition to bypass the court of appeals pursuant to
s. 808.05 no later than 10 days following the filing of the respondent's brief under
s. 809.19 or response. The petition must include a statement of reasons for bypassing the court of appeals.
809.60(2)
(2) An opposing party may file a response to the petition within 10 days of the service of the petition.
809.60(3)
(3) The filing of the petition stays the court of appeals from taking under submission the appeal or other proceeding.
809.60(4)
(4) The supreme court may grant the petition upon such conditions as it considers appropriate.
809.60(5)
(5) Upon the denial of the petition by the supreme court the appeal or other proceeding in the court of appeals continues as though the petition had never been filed.
809.60 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981).
809.60 Note
Judicial Council Committee's Note, 1981: The amendment to sub. (1) establishes time periods for filing a bypass petition to discourage use of the petition for dilatory purposes. [Re Order effective Jan. 1, 1982]
809.61
809.61
Rule (Bypass by certification of court of appeals or upon motion of supreme court). The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court's own motion. The supreme court may refuse to take jurisdiction of an appeal or other proceeding certified to it by the court of appeals.
809.61 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
809.61 Annotation
The Supreme Court's denial of certification has no precedential value on the merits of case. State v. Shillcutt,
119 Wis. 2d 788,
350 N.W.2d 686 (1984).
809.61 Annotation
Discretionary review by the Wisconsin supreme court. Pokrass, WBB March, 1985.
809.62
809.62
Rule (Petition for review). 809.62(1)
(1) A party may file with the supreme court a petition for review of an adverse decision of the court of appeals pursuant to
s. 808.10 within 30 days of the date of the decision of the court of appeals. Supreme court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. The following, while neither controlling nor fully measuring the court's discretion, indicate criteria that will be considered:
809.62(1)(a)
(a) A real and significant question of federal or state constitutional law is presented.
809.62(1)(b)
(b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.
809.62(1)(c)
(c) A decision by the supreme court will help develop, clarify or harmonize the law, and
809.62(1)(c)1.
1. The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or
809.62(1)(c)2.
2. The question presented is a novel one, the resolution of which will have statewide impact; or
809.62(1)(c)3.
3. The question presented is not factual in nature but rather is a question of law of the type that is likely to recur unless resolved by the supreme court.
809.62(1)(d)
(d) The court of appeals' decision is in conflict with controlling opinions of the United States Supreme Court or the supreme court or other court of appeals' decisions.
809.62(1)(e)
(e) The court of appeals' decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination.
809.62(2)(a)
(a) A statement of the issues presented for review, the method or manner of raising the issues in the court of appeals and how the court of appeals decided the issues.
809.62(2)(c)
(c) A concise statement of the criteria of
sub. (1) relied upon to support the petition, or in the absence of any of the criteria, a concise statement of other substantial and compelling reasons for review.
809.62(2)(d)
(d) A statement of the case containing a description of the nature of the case; the procedural status of the case leading up to the review; the dispositions in the trial court and court of appeals; and a statement of those facts not included in the opinion of the court of appeals relevant to the issues presented for review, with appropriate references to the record.
809.62(2)(e)
(e) An argument amplifying the reasons relied on to support the petition, arranged in the order of the statement of issues presented. All contentions in support of the petition must be set forth in the petition. A memorandum in support of the petition is not permitted.
809.62(2)(f)
(f) An appendix containing, in the following order:
809.62(2)(f)2.
2. Judgment, orders, findings of fact, conclusions of law and memorandum decisions of the circuit court and administrative agencies necessary for an understanding of the petition.
809.62(2)(f)3.
3. Any other portions of the record necessary for an understanding of the petition.
809.62(2m)
(2m) Subsection (2) does not apply to a petition for review of an appeal that is governed by
s. 809.105. A petition governed by that section shall comply with
s. 809.105 (11).
809.62(3)
(3) Except as provided in
s. 809.32 (4), an opposing party may file a response to the petition within 10 days of the service of the petition.
809.62(4)
(4) The petition and response, if any, shall conform to
s. 809.19 (8) (b) and
(d) as to form and certification and shall be as short as possible but not exceed 35 pages in length if a monospaced font is used or 8,000 words if a proportional serif font is used, exclusive of appendix.
809.62(5)
(5) Except as provided in
s. 809.24, the filing of the petition stays further proceedings in the court of appeals.
809.62(6)
(6) The supreme court may grant the petition upon such conditions as it considers appropriate, including the filing of additional briefs. If the petition is granted, the petitioner cannot raise or argue issues not set forth in the petition unless ordered otherwise by the supreme court. The supreme court may limit the issues to be considered on review.
809.62(7)
(7) A party who seeks a modification of an adverse decision of the court of appeals may file a petition for cross-review within the period for filing a petition for review with the supreme court, or 30 days after the filing of a petition for review by another party, whichever is later. A party seeking cross-review has the same rights and obligations as a party seeking review under
ch. 809.
809.62 History
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);
1991 a. 263; Sup. Ct. Order No.
93-20, 179 Wis. 2d xxv;
1993 a. 395.
809.62 Note
Judicial Council Committee's Note, 1979: The caption of Rule 809.62 is amended to more properly describe the function of the Supreme Court in reviewing decisions of the Court of Appeals.
809.62 Annotation
Rule 809.62 (5) [7] is created to protect the review rights of all parties to a review in the Supreme Court by creating a cross-review provision for a decision being reviewed by the Supreme Court similar to the cross-appeal provision for a judgment or order being appealed to the Court of Appeals from a trial court found in Rule 809.10 (2) (b). New sub. 809.62 (5) gives a party the ability to file for cross-review with the Supreme Court up to an additional 30 days from the filing of a petition for review by another party to the decision rendered by the Court of Appeals. [Re Order effective Jan. 1, 1980]
809.62 Note
Judicial Council Committee's Note, 1981: Rule 809.62 is amended to regulate the form, contents and length of petitions for review. The amendments are intended to focus the petition for review on the criteria promulgated by the supreme court for granting a petition for review, to facilitate the efficient and effective consideration of the petition by the supreme court, and to develop a petition that may be used by the supreme court for consideration of the merits after review is granted.
809.62 Annotation
Sub. (1) incorporates criteria promulgated by the supreme court for granting a petition for review. In re Standards to Review Petitions to Appeal, 85 Wis. 2d xiii, 268 N.W. 2d xxviii (1978).
809.62 Annotation
Sub. (2) regulates the contents of the petition. Sub. (2) (a) requires that the petition contain a statement of the issues presented for review, the method or manner of raising the issues in the court of appeals, and how the court of appeals decided the issues. Correspondingly, sub. (6), formerly sub. (4), is amended to provide that if the petition is granted, the petitioner cannot raise or argue issues not set forth in the petition unless ordered otherwise by the supreme court. The supreme court may limit the issues to be considered on review. These amendments establish that the parties are limited to the issues raised in the petition, but the supreme court may order the parties to argue issues not raised. Likewise, the supreme court may limit the issues to be reviewed. The petition informs the supreme court as to whether an issue had been raised in the court of appeals. If an issue was not raised in the court of appeals, then it is left to the judicial discretion of the supreme court as to whether it will grant the petition so as to allow the issue to be raised in the supreme court.
809.62 Annotation
Sub. (2) (c) requires that the petition contain a concise statement of the criteria of sub. (1) relied upon to support the petition, or in the absence of any of the criteria, a concise statement of other substantial and compelling reasons for review. Supreme court review is a matter of discretion. The supreme court has promulgated the criteria as guidelines for the exercise of its discretion. In the absence of one of the criteria, the supreme court may grant a petition for review if the petitioner establishes other substantial and compelling reasons for review. The amendment requires that the petitioner either state criteria relied upon or in the absence of any of the criteria, state other substantial and compelling reasons for review. The burden is on the petitioner to explicitly define the other substantial and compelling reasons for review.
809.62 Annotation
Sub. (2) (d) requires that the petition contain a statement of the case containing a description of the nature of the case, the procedural status of the case leading up to the review, the dispositions in the trial court and court of appeals, and a statement of those facts not included in the opinion of the court of appeals relevant to the issues presented for review, with appropriate references to the record. The opinion of the court of appeals must be included in an appendix to the petition. Consequently, if the opinion of the court of appeals sets forth a complete statement of the facts relevant to the issues presented for review, the petition for review need not restate those facts. The petition need only state those facts not included in the opinion of the court of appeals relevant to the issues presented for review. The statement of facts must include appropriate references to the record.
809.62 Annotation
Sub. (2) (e) provides that the petition must contain an argument amplifying the reasons relied on to support the petition, arranged in the order of the statement of issues presented. All contentions must be contained within the petition. There is no memorandum in support of the petition.
809.62 Annotation
The appendix required by sub. (2) (f) will assure that all relevant supporting documents necessary for an understanding of the petition for review be before the supreme court for consideration. This will facilitate not only the review of the petition for review but will enhance the petition as an aid to the court in any subsequent review on the merits.
809.62 Annotation
Sub. (4) is created to regulate the form and length of the petition for review and response. The form of the petition and response is based on Rule 809.19 for briefs as to printing requirements, page size and binding. The petition and response shall be as short as possible but shall not exceed 35 pages in length, exclusive of appendix.
809.62 Annotation
Prior sub. (3) is renumbered sub. (5) and amended to allow the court of appeals to reconsider on its own motion a decision or opinion within 30 days of a filing of a petition for review.
809.62 Annotation
The amendments to the rule refer to Rule 809.32 (4) which governs the filing of a petition for review in a criminal case where there has been a fully briefed appeal to the court of appeals and appointed counsel is of the opinion that a petition for review in the supreme court under Rule 809.62 would be frivolous and without any arguable merit.
809.62 Annotation
Prior subs. (2) and (5), relating to the time for filing the response to the petition for review and the provisions for cross-review have been renumbered subs. (3) and (7), respectively, but have not been substantively altered. [Re Order effective Jan. 1, 1982]
809.62 Annotation
The Supreme Court has power to entertain petitions filed by the state in criminal cases. State v. Barrett,
89 Wis. 2d 367,
280 N.W.2d 114 (1979).
809.62 Annotation
Where the Court of Appeals reversed a defendant's conviction on grounds of insufficiency of evidence, the double jeopardy clause did not bar the Supreme Court from reviewing the case. State v. Bowden,
93 Wis. 2d 574,
288 N.W.2d 139 (1980).
809.62 Annotation
"Decision" under sub. (1) means the result, disposition, or mandate reached by court, not the opinion. Neely v. State,
89 Wis. 2d 755,
279 N.W.2d 255 (1979).
809.62 Annotation
The Supreme Court will not order a new trial when the majority concludes that there is prejudicial error but there is no majority with respect to a particular error. "Minority vote pooling" is rejected. State v. Gustafson,
121 Wis. 2d 459,
359 N.W.2d 920 (1985).
809.62 Annotation
Petitions for review must be filed by 5:00 p.m. on the 30th day following the filing of the Court of Appeals decision. St. John's Home v. Continental Cas. Co.
150 Wis. 2d 37,
441 N.W.2d 219 (1989), per curiam.
809.62 Annotation
Citation to an unpublished court of appeals decision to show conflict between districts for purposes of s. 809.62 (1) (d) is appropriate. State v. Higginbotham,
162 Wis. 2d 978,
471 N.W.2d 24 (1991).
809.62 Annotation
Issues before the court are issues presented in the petition for review and not the discrete arguments that may be made, pro or con, in the disposition of the issue. State v. Weber,
164 Wis. 2d 788,
476 N.W.2d 867 (1991).
809.62 Annotation
Read together, s. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review, provided counsel does not determine the appeal to be without merit. Where counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy,
201 Wis. 2d 246,
548 N.W.2d 45 (1996).
809.62 Annotation
Discretionary review by the Wisconsin supreme court. Wilson and Pokrass. WBB Feb. 1983.
809.62 Annotation
Petitions for review by the Wisconsin supreme court. 1979 WLR 1176.
809.63
809.63
Rule (Procedure in supreme court). When the supreme court takes jurisdiction of an appeal or other proceeding, the rules governing procedures in the court of appeals are applicable to proceedings in the supreme court unless otherwise ordered by the supreme court in a particular case.
809.63 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
809.64
809.64
Rule (Reconsideration). A party may seek reconsideration of the judgment or opinion of the supreme court by filing a motion under
s. 809.14 for reconsideration within 20 days of the filing of the decision of the supreme court.
809.64 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1981 c. 390 s.
252.
809.64 Note
Judicial Council Committee's Note, 1978: Rule 809.64 replaces former Rules 251.65, 251.67 to 251.69, which provided for motions for rehearing. The necessity for the filing of briefs on a motion for reconsideration as required by former Rule 251.67 is eliminated. The matter will be considered on the motion and supporting and opposing memoranda as with any other motion. The term "reconsideration" is used rather than rehearing because in a case decided without oral argument there has been no initial hearing. [Re Order effective July 1, 1978]
809.64 Annotation
A Supreme Court order denying a petition to review a Court of Appeals decision was neither a judgment nor an opinion. Archdiocese of Milwaukee v. Milwaukee,
91 Wis. 2d 625,
284 N.W.2d 29 (1979).
809.64 Annotation
A motion mailed within the 20-day period but received after the period expired was not timely and did not merit exemption from the time requirement. Lobermeier v. General Tel. Co. of Wisconsin,
120 Wis. 2d 419,
355 N.W.2d 531 (1984).
ORIGINAL JURISDICTION PROCEDURE
IN SUPREME COURT
809.70
809.70
Rule (Original action). 809.70(1)
(1) A person may request the supreme court to take jurisdiction of an original action by filing a petition which may be supported by a memorandum. The petition must contain all of the following:
809.70(1)(a)
(a) A statement of the issues presented by the controversy.
809.70(1)(b)
(b) A statement of the facts necessary to an understanding of the issues.
809.70(1)(d)
(d) A statement of the reasons why the court should take jurisdiction.
809.70(2)
(2) The court may deny the petition or may order the respondent to respond and may order oral argument on the question of taking original jurisdiction. The respondent shall file a response, which may be supported by a memorandum, within 10 days of the service of the order.
809.70(3)
(3) The court, upon a consideration of the petition, response, supporting memoranda and argument, may grant or deny the petition. The court, if it grants the petition, may establish a schedule for pleading, briefing and submission with or without oral argument.
809.70 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978);
1995 a. 225.
809.71
809.71
Rule (Supervisory writ). A person may request the supreme court to exercise its supervisory jurisdiction over a court and the judge presiding therein or other person or body by filing a petition in accordance with
s. 809.51. A person seeking a supervisory writ from the supreme court shall first file a petition for a supervisory writ in the court of appeals under
s. 809.51 unless it is impractical to seek the writ in the court of appeals. A petition in the supreme court shall show why it was impractical to seek the writ in the court of appeals or, if a petition had been filed in the court of appeals, the disposition made and reasons given by the court of appeals.
809.71 History
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981);
1981 c. 390 s.
252.
809.71 Note
Judicial Council Committee's Note, 1981: The supreme court will not exercise its supervisory jurisdiction where there is an adequate alternative remedy. Unless the court of appeals is itself the object of the supervisory writ, usually there is an adequate alternative remedy of applying to the court of appeals under Rule 809.51 for the supervisory writ. The amendment to Rule 809.71 establishes that before a person may request the supreme court to exercise its supervisory jurisdiction, the person must first seek the supervisory writ in the court of appeals, unless to do so is impractical. Following the decision of the court of appeals, the amendment does not preclude the supreme court from considering a petition for review under Rule 809.62 or a petition for supervisory writ under Rule 809.71, depending upon the circumstances and the petitioner's ability to establish the respective governing criteria. [Re Order effective Jan. 1, 1982]
