WISCONSIN SUPREME COURT INTERNAL OPERATING PROCEDURES
II. Decisional Process — Appellate and Original Jurisdiction.
III. Rule-making Process.
IV. Appointment Process.
Note: These procedures were amended July 1, 1991; February 18, 1992; June 24, 1992; June 1, 1995; September 16, 1996; June 22, 1998; March 16, 2000; April, 2006; October 19, 2007; June 17, 2009; May 4, 2012.
These internal operating procedures, which were adopted May 24, 1984, and amended thereafter, describe the manner in which the Supreme Court currently processes, considers and decides judicial matters brought to the court. They also set forth the administrative and professional staff function in the conduct of the court's judicial business and the procedure by which the Supreme Court administers the nonjudicial business of the court. These procedures are intended for the advice of counsel practicing in the Supreme Court and for information to the public; they are not rules of appellate procedure.
Following court reorganization in 1978, we experimented with various procedures that seemed to best serve the objectives of collegiality and efficiency. The court continually reviews its procedures to improve the efficient processing of its caseload and the effective discharge of its administrative responsibilities. Accordingly, these procedures may be changed without notice as circumstances require.
It should be reemphasized that these are not rules. They do not purport to limit or describe in binding fashion the powers or duties of any Supreme Court personnel. These internal operating procedures are merely descriptive of how the court currently functions. Any internal operating procedure may be suspended or modified by majority vote of a quorum of the court.
I. STAFF. A. Administrative. 1. Director of State Courts. The director of state courts, who is appointed by and serves at the pleasure of the court, administers the nonjudicial business of the court system at the direction of the chief justice and the court. The authority and responsibilities of the director are set forth in the Supreme Court Rules, chapter 70.
2. Clerk. The clerk of the Supreme Court, who is appointed by the Supreme Court, performs the duties of the office prescribed by law and such other duties as may be prescribed by the court or the chief justice. The clerk is the custodian of all court records and is responsible for the supervision and processing of matters from the time of filing with the court until their ultimate disposition. The clerk is also clerk of the Court of Appeals, and the clerk's office serves both courts. Consequently, the records filed in the Court of Appeals are readily available to the Supreme Court.
3. Chief Deputy Clerk. The chief deputy clerk, who is hired by the clerk of the Supreme Court, assists the clerk in the performance of the duties of that office and performs those duties in the absence of the clerk.
4. Marshal. The marshal, who is hired by the director of state courts with the approval of the Supreme Court, attends the sessions of the court and performs the duties assigned by the court, the director of state courts and the clerk.
5. Deputy Marshal. The deputy marshal, who is hired by the marshal, assists in the performance of the duties of the marshal and, in the absence of the marshal, performs those duties.
B. Legal 1. Supreme Court Commissioners. Supreme Court commissioners are attorneys licensed to practice law in Wisconsin who are hired by and serve at the pleasure of the court. The commissioners perform research, prepare memoranda and make recommendations to the court regarding matters brought within the court's appellate and original jurisdictions and rule-making authority, and perform other duties as the court or the chief justice may direct. Matters are assigned to the commissioners on a rotating basis.
2. Law Clerks. Law clerks assist the justices in performing research. Law clerks are hired by and serve at the pleasure of the individual justice. Law clerks are law school graduates who are customarily hired to serve for one year. Each law clerk performs research, prepares memoranda and performs other duties as the individual justice may direct.
II. DECISIONAL PROCESS — APPELLATE AND ORIGINAL JURISDICTION. The Wisconsin Constitution confers upon the Supreme Court appellate jurisdiction over all courts and jurisdiction to hear original actions and proceedings. As a corollary, the court has constitutional authority to issue all writs necessary in aid of its jurisdiction.
The court's appellate jurisdiction is sought to be invoked by the filing of a petition for review of a decision of the Court of Appeals by a party to whom the decision was adverse, by the filing of a petition to bypass the Court of Appeals by a party to the circuit court action, or by certification by the Court of Appeals of a circuit court order or judgment appealed to the Court of Appeals. The Supreme Court may also, in its discretion, answer questions of law certified to it by a federal court of appeals and the highest appellate court of any state. The Supreme Court exercises its appellate jurisdiction by granting a petition for review, a petition to bypass, or a certification or by deciding on its own motion to review directly a matter appealed to the Court of Appeals. The court's original and superintending jurisdictions are sought to be invoked by the filing of a petition. The court exercises its original or superintending jurisdiction by granting a petition therefor or by ordering the relief sought.
When a matter is brought to the Supreme Court for review, the court's principal criterion in granting or denying review is not whether the matter was correctly decided or justice done in the lower court, but whether the matter is one that should trigger the institutional responsibilities of the Supreme Court. The same determination governs the exercise of the court's original jurisdiction.
A. Court Schedule. Subject to modification as needed, in the spring of each year the court sets a schedule for its decisional process for each month from September through June. During each month the chief justice may schedule oral arguments, decision conferences, and administrative conferences on the agreed-upon calendar. Any changes in court dates need unanimous approval.
Filed rules petitions are discussed at open conference as they may require. No matter, except filed rules petitions, shall be on the agenda for or discussed in open administrative conference unless a majority of the court gives prior approval in closed conference or by email for the placement of that matter on the open conference agenda.
B. Staff Analysis and Reporting. 1. Petition for Review. Upon filing in the office of the clerk, petitions for review are assigned by clerk staff to the court's commissioners for analysis prior to the court's consideration of the matters presented. Within 50 days of assignment of the petition, the commissioner to whom a petition for review is assigned prepares and circulates to the court a memorandum containing a thorough legal and factual analysis of the petition, including the applicability of the criteria for the granting of a petition for review set forth in Wis. Stat. (Rule) s. 809.62 (1), a recommendation for the granting or denial of the petition and, where appropriate, a recommendation for submission of the matter to the court for decision on briefs without oral argument.
In addition to the written memorandum, once each month and at other times as the court may direct, a conference is held at which each commissioner orally reports to the court on the petitions for review. Two weeks prior to the conference at which the commissioners report, each commissioner circulates to the court the petitions for review, the responses to those petitions, and a memorandum on each petition, together with an agenda sheet listing by caption and docket number the cases to be reported on at the conference and the commissioner's recommendation in each case. Prior to the conference, each member of the court reads the materials circulated.
At the conference, the chief justice states the name of each case, and the members of the court are asked whether they have any objection to the commissioner's recommendation. If there is no objection, the commissioner's recommendation is accepted without further discussion.
If any justice objects to or asks to discuss the commissioner's recommendation, a discussion is held in which the commissioner or a justice reports on the case. Following discussion, the court decides whether to grant or deny the petition for review and, if the petition is granted, whether the case will be scheduled for oral argument or for submission on briefs and whether the court will limit the issues in the case.
A petition for review is granted upon the affirmative vote of three or more members of the court. The purpose of requiring less than a majority of the court to grant a petition for review is to accommodate the general public policy that appellate review is desirable. A decision to direct the parties to brief issues other than those raised in the petition for review or response requires the affirmative vote of four or more members of the court.
The commissioner to whom the petition has been assigned prepares an order setting forth the court's decision on the petition for review and arranges for the issuance of the order by the office of the clerk. If the petition is granted, the order specifies the court's limitation of issues, if any, and the briefing schedule. The order provides that a party may file a brief or may stand on the brief filed in the Court of Appeals. The parties shall not, in any new brief filed, incorporate by reference any portion of their Court of Appeals briefs or their briefs submitted with or in response to the petition for review.
1m. Upon the filing in the office of the clerk under Wis. Stat. (Rule) s. 809.105 (11) of a petition for review of the judgment in an appeal of a decision of the circuit court on a petition to waive parental consent prior to a minor's abortion, the clerk shall notify the chief justice or, if the chief justice is not available, the most senior justice available that the petition has been filed. As soon as practicable after the petition is filed, the clerk shall furnish a copy of the petition to each justice and assign it, with a copy, to a court commissioner.
The court commissioner to whom the petition for review has been assigned shall prepare and circulate to the court within three calendar days of the assignment a memorandum containing a thorough legal and factual analysis of the petition, including the applicability of the criteria for the granting of a petition for review set forth in Wis. Stat. (Rule) s. 809.62 (1), a recommendation for the granting or denial of the petition and, where appropriate, a recommendation for submission of the matter to the court for decision with or without briefs and with or without oral argument.
Within five calendar days after the filing of the petition for review, the chief justice or, if the chief justice is not available, the most senior justice available shall convene a conference of the members of the court, which may be held by telephone conference call, and the court shall issue an order granting or denying the petition for review. An order granting the petition for review shall set forth a date and time for oral argument, if any, to be held in the court's hearing room, and a date and time for the filing of briefs, if the court orders briefs.
If a petition for review is granted, the court shall issue its decision, with or without a written opinion, within 10 calendar days after the petition for review is filed.
2. Petition to Bypass, Certification and Direct Review. A party may request the court to take jurisdiction of an appeal or other proceeding pending in the Court of Appeals by filing a petition to bypass pursuant to Wis. Stat. (Rule) s. 809.60. A matter appropriate for bypass is usually one which meets one or more of the criteria for review, Wis. Stat. (Rule) s. 809.62 (1), and one the court concludes it will ultimately choose to consider regardless of how the Court of Appeals might decide the issues. At times, a petition for bypass will be granted where there is a clear need to hasten the ultimate appellate decision.
The Court of Appeals may request the Supreme Court to exercise its appellate jurisdiction by certifying a pending appeal to the Supreme Court prior to hearing and deciding the matter. Certifications are granted on the basis of the same criteria as petitions to bypass.
Petitions to bypass and certifications are processed according to the procedure set forth above for petitions for review, except that these matters are given priority over petitions for review. Petitions to bypass and certifications are granted upon the affirmative vote of four or more members of the court. A decision to direct the parties to brief issues other than those raised in their court of appeals' briefs requires the affirmative vote of four or more members of the court.
Before the court on its own motion decides to review directly a matter appealed to the Court of Appeals, the chief justice may assign the matter to a commissioner for analysis. If the matter is so assigned, it is processed according to the procedures set forth in this section for petitions to bypass and certifications.
3. Original Action. Upon filing in the office of the clerk, a petition requesting the court to take jurisdiction of an original action is assigned to a court commissioner for analysis prior to the court's consideration of the merits of the matter presented. The commissioner orally reports on the matter to the chief justice as soon as practicable, and the chief justice, or in the absence of the chief justice, the most senior justice present, determines a date on which the matter will be considered by the court at conference. The commissioner reports on the matter at that conference. If time permits, the commissioner circulates a memorandum to the court prior to that conference analyzing the legal and factual issues involved and making a recommendation for the denial of the petition ex parte or for a response to be ordered and for the scheduling of oral argument on the question of the court's exercise of its original jurisdiction, if oral argument is deemed necessary. If circumstances warrant, the chief justice, or in the absence of the chief justice, the most senior justice present, may order a response to the petition for original action and may act on nonsubstantive motions concerning the proceeding.
If the petition is denied, the commissioner prepares an order setting forth that decision and arranges for its issuance through the office of the clerk; if a response is ordered, the commissioner prepares an order setting forth that decision, as well as the decision on oral argument. When the order is approved by the court, the commissioner arranges for its issuance by the office of the clerk. Upon the filing of a response, the matter is referred to the commissioner for analysis and reporting. The original action is then processed according to the procedures set forth above for petitions for review.
A petition to commence an original action is granted upon the vote of four or more members of the court. The criteria for the granting of a petition to commence an original action are a matter of case law. See, e.g., Petition of Heil, 230 Wis. 428 (1939). The Supreme Court is not a fact-finding tribunal, and although it may refer issues of fact to a circuit court or referee for determination, it generally will not exercise its original jurisdiction in matters involving contested issues of fact. Upon granting a petition to commence an original action, the court may require the parties to file pleadings and stipulations of fact. The court customarily holds oral argument on the merits of the action and expedites the matter to decide it promptly. A decision to direct the parties to brief issues other than those raised in the petition to commence an original action or response requires the affirmative vote of four or more members of the court.
4. Petition for Supervisory Writ; Petition for Writ of Mandamus, Prohibition, Quo Warranto, Habeas Corpus. The Supreme Court has superintending authority over all actions and proceedings in the circuit courts and the Court of Appeals. It does not ordinarily issue supervisory writs concerning matters pending in circuit courts, as the Court of Appeals also has supervisory authority over all actions and proceedings in those courts. A person may request the Supreme Court to exercise its superintending jurisdiction by filing a petition pursuant to Wis. Stat. (Rule) s. 809.71.
Petitions for supervisory writ and petitions for writ of mandamus, prohibition, quo warranto, or habeas corpus are processed according to the procedure set forth above for petition for commencement of an original action, except that if time does not permit consideration by the court, petitions for supervisory writ may be denied ex parte by the chief justice, or in the absence of the chief justice, by the most senior justice present. If it appears from the petition that it should be dismissed on procedural grounds, the chief justice, acting for the court, may deny the petition ex parte.
5. Regulatory Jurisdiction. A matter within the regulatory jurisdiction of the court, e.g., bar admission, continuing legal education, lawyer discipline, judicial discipline, Supreme Court Rules, rules of pleading, practice and procedure in civil and criminal actions, is assigned to a court commissioner for analysis and reporting to the court. The commissioner prepares orders in these matters as the court may direct and arranges for their issuance by the office of the clerk.
6. Motions. When acting on motions, the chief justice, or in the absence of the chief justice, the most senior justice present, acts on behalf of the court and pursuant to rules of the Supreme Court promulgated from time to time.
a. Unopposed procedural motions are acted on by the clerk. Procedural motions which do not adversely affect another party, e.g., motions to extend time to file briefs or to exceed page limitations of briefs, are acted on by the clerk without a response from the adverse party, unless the clerk requests a response. The clerk decides these motions in consultation with the commissioner to whom the matter has been assigned for analysis and the chief justice. The clerk or the commissioner prepares and issues an appropriate order.
When appropriate, the commissioner presents a motion to the chief justice, or in the absence of the chief justice, the most senior justice present, with a recommendation for the granting or denial of the motion, and the chief justice or the most senior justice present either decides the motion or determines that the matter should be submitted to the court. The commissioner prepares an appropriate order and, when the order is approved, arranges for its issuance by the office of the clerk.
b. Substantive motions are assigned by clerk staff to the court's commissioners for review and reporting to the court, with or without a memorandum, as time may permit and circumstances may indicate. If the motion is filed in a case that has been assigned to a justice, clerk staff transmits the motion to the court. When the motion has been decided, the commissioner or clerk staff, at the court's direction, prepares an appropriate order and, when the order is approved, arranges for its issuance by the office of the clerk.
c. A motion to file a brief by a person not a party to a proceeding is assigned to the court commissioner to whom the matter has been assigned for analysis, who may grant the motion if it appears that the movant has a special knowledge or experience in the matter at issue in the proceedings so as to render a brief from the movant of significant value to the court. If the commissioner questions the propriety of granting the motion or if it appears that the motion should be denied, the commissioner reports the matter to the court with a recommendation that it be denied. The decision to deny a motion to file an amicus brief is that of the court. The commissioner prepares an appropriate order and arranges for its issuance by the office of the clerk.
If the motion is filed in a case that has been assigned to a justice, clerk staff transmits the motion to the court for review and decision. Clerk staff, at the court's direction, prepares and issues an appropriate order.
d. Motions for temporary relief concerning matters pending in the Supreme Court are assigned to the court or to the commissioner to whom the underlying matter has been assigned and with whom it remains at the time of the filing of the motion. The matter is reported to the court or to the chief justice, or in the absence of the chief justice, to the most senior justice present, with or without a memorandum, as time and circumstances may indicate. The court or the chief justice or the most senior justice present decides the motion, and the commissioner or the court prepares an appropriate order and arranges for its issuance by the office of the clerk.
C. Submission Calendar. The clerk of the court, in consultation with the chief justice, prepares and distributes to the court for each month from September through June, inclusive, a list of cases for submission to the court that month. The clerk assigns cases to the submission calendar in the order of the anticipated filing of the last brief, except that criminal cases and cases involving child custody and termination of parental rights are given priority to the extent possible. The chief justice sets the cases to be assigned each month based on the court's calendar.
The calendar sets the date of oral argument for cases assigned for submission with oral argument and lists the cases assigned for submission on briefs. The date of submission of the oral argument cases is the date of oral argument, and the date of submission of cases assigned for submission on briefs is the date set by the chief justice. Generally, cases are assigned for submission with oral argument unless it appears from the issues or the briefs that oral argument would not be sufficiently informative to the court to justify the additional expenditure of court time or cost to the parties or there is another case or cases assigned for submission with oral argument presenting the same issue(s). At least 30 days prior to the first day of oral argument on the calendar, the clerk makes the calendar public and distributes a copy of it to the court, to the parties to the cases on the calendar, and to others who have arranged with the clerk to receive it.
As soon as each month's submission calendar is distributed, the court's marshal delivers a copy of the calendar and the briefs filed to date for each case on that calendar to the office of each justice. Each justice's law clerk prepares memoranda thoroughly analyzing the factual and legal issues in the cases on the calendar as the law clerk's justice may direct. Prior to oral argument, each justice reads the briefs and legal memoranda in each case on the calendar.
D. Oral Argument; Pre-argument Conference. At 8:45 a.m. on each day of oral arguments the court meets in conference to discuss the cases scheduled for oral argument that day. After the submission calendar is circulated, each justice is randomly assigned cases on it for purposes of leading the discussion of those cases at pre-argument conference on the day of oral argument. At the pre-argument conference the court isolates issues, determines what has not been adequately presented by the parties in the briefs, and determines what issues the parties should address during oral argument and what questions the court should address to counsel to clarify the issues.
At this conference, the court may discuss those cases assigned for submission on briefs presenting the same issue(s) as a case scheduled for oral argument that same day. The court discusses other cases assigned for submission on briefs on the date set by the chief justice.
The submission calendar lists those cases to be argued in the morning, beginning at 9:45 a.m., and those cases to be argued in the afternoon, beginning at 1:30 p.m. Attorneys are to be present and prepared to argue at the time indicated, which is the earliest time at which their case may be called. Upon their arrival for oral argument, attorneys are to check in with the clerk's office staff outside the courtroom.
When a case is called by the chief justice, counsel are to take their places immediately. The petitioner is to take his or her place to the right of the podium facing the court and the respondent is to be seated to the left of the podium facing the court.
At oral argument, each side is allowed 30 minutes or such other period of time as the court may grant to present argument supplementing or clarifying arguments set forth in the briefs, to present argument on issues specified by the court prior to oral argument and to discuss developments in applicable law which have occurred subsequent to the filing of the briefs. Requests for additional time for oral argument are to be made in writing to the clerk, but such requests are rarely granted. Oral arguments are recorded by the marshal for the court's use, and the recordings are retained for at least 120 days following remittitur. The court may permit parties or interested persons to listen to the recordings. Oral arguments may also be listened to on-line as they occur and are posted to the court's website for listening at any time.