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).
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.
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.
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.
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.
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.
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.
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.
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.
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]
Judicial Council Note, 2001: The time limit in sub. (3) has been changed from 10 to 14 days. Please see the comment to s. 808.07. The last sentence of sub. (4) specifies the color of the cover that should accompany a petition for review and the number of copies required. [Re Order No. 00-02 effective July 1, 2001]
Sup. Ct. Order No. 04-08
, 2008 WI 108
, states, "The Judicial Council Committee Comments are not adopted, but will be published and may be consulted for guidance in interpreting and applying Wis. Stat. ss. 809.30, 809.32 and 809.62."
Judicial Council Committee Comments, July 2008:
The definition in s. 809.62 (1g) codifies the holding in Neely v. State, 89 Wis. 2d 755
, 757-58, 279 N.W.2d 255
(1979), to the effect that a party cannot seek review of a favorable result merely because of disagreement with the court of appeals' rationale. At the same time, s. 809.62 (1g) underscores the fact that a court of appeals' decision that is generally favorable to a party remains adverse to that party to the extent that it does not grant the party all the relief requested, i.e., the full relief or the preferred form of relief sought by the party. See also State v. Castillo
, 213 Wis. 2d 488
, 492, 570 N.W.2d 44
As an example, a criminal defendant seeking reversal of his conviction or, if that is not granted, resentencing, would be entitled to seek review of the court of appeals' failure to grant a new trial, even if it did order resentencing. Similarly, a civil appellant challenging a verdict finding liability and, should that be denied, the amount of damages, would be entitled to seek review of the court of appeals' failure to grant a new trial on liability, even if the court of appeals did order reassessment of damages.
Rules 809.62 (1m) and (1r) are former Rule 809.62 (1), divided into subsections and subtitled. Subtitles are added throughout Rule 809.62 to help practitioners and parties locate particular provisions.
Rule 809.62 (2) (a) is amended to require the petitioner to identify all issues on which it seeks review, including issues raised in the court of appeals but not decided in the court of appeals. The amendment to Rule 809.62 (2) (a) also clarifies that the statement of an issue incorporates all subsidiary issues. This amendment is adapted from the United States Supreme Court's rules. See U.S. Sup. Ct. Rule 14.1(a). See also In the Interest of Jamie L.
, 172 Wis. 2d 218
, 232-33, 493 N.W.2d 56
Rule 809.62 (3) is amended to advise the respondent to apprise the supreme court, in the response to the petition, of any issues the court may need to decide if it grants review of the issue(s) identified in the petition. This applies whether or not the court of appeals actually decided the issues to be raised.
The amendments to Rule 809.62 (3) also advise the respondent to identify in its response any perceived misstatements of law or fact, or any defects (such as waiver, mootness, or estoppel) that could prevent the supreme court from reaching the merits of the issue presented in the petition. Compare U.S. Sup. Ct. Rule 15.2.
Rule 809.62 (3) (d) addresses the circumstance in which the respondent asserts an alternative ground to defend the court of appeals' ultimate result or outcome, whether or not that ground was raised or ruled upon by the lower courts.
Rule 809.62 (3) (d) also addresses the circumstances in which the respondent asserts an alternative ground that would result in a judgment less favorable than that granted by the court of appeals but more favorable to the respondent than might be granted for the petitioner (e.g., remand for a new trial rather than a rendition of judgment for the petitioner). The language is modified from Tex. R. App. P. 53.3(c)(3).
Rule 809.62 (3) (d) and (e) are intended to facilitate the supreme court's assessment of the issues presented for review, not to change current law regarding the application of waiver principles to a respondent. See State v. Holt
, 128 Wis. 2d 110
, 125, 382 N.W.2d 679
(Ct. App. 1985) (An appellate court may sustain a lower court's holding on a theory or on reasoning not presented to the lower court.)
Implicit in these amendments, although not expressly stated as in the federal rule, U.S. Sup. Ct. Rule 15.2, is the understanding that a respondent may be deemed to have waived issues or defects that do not go to jurisdiction if they are not called to the attention of the supreme court in a response to the petition. The supreme court retains its inherent authority to disregard any waiver and address the merits of an unpreserved argument or to engage in discretionary review under Wis. Stat. §§ 751.06 or 752.35. See State v. Mikrut, 2004 WI 79
, ¶38. The possible invocation of waiver for failure to raise such alleged defects in the response will encourage the respondent to inform the supreme court of such defects before the supreme court decides whether to expend scarce judicial resources on the case. See Oklahoma City v. Tuttle, 471 U.S. 808
, 815-16 (1985).
A number of other states have rules requiring the respondent to identify other issues it seeks to raise if review is granted, and either expressly or impliedly limiting the issues before the supreme court on a grant of review to those set forth in the petition and response. See Ariz. R. Civ. App. P. 23(e); Calif. App. R. 28(e)(2) & (5); Kan. R.S. & A. Cts. Rule 8.03(g)(1); N.C. R. App. P. 15(d) & 16(a); Oregon R. App. P. 9.20(2); Wash. R. App. 13.4(d).
A leading handbook on United States Supreme Court practice describes the procedure in that Court as follows:
A respondent may also choose to waive the right to oppose a petition, which seems clearly without merit. This will save time and money, without any substantial risk if respondent feels certain that certiorari will be denied. In order that the waiver will clearly be understood as based upon the lack of merit in the petition, the statement filed with the Court — which may be in the form of a letter to the Clerk — should contain language to this effect: "In view of the fact that the case clearly does not warrant review by this Court [as is shown by the opinion below], respondent waives the right to file a brief in opposition." The letter may also request leave to file a response to the petition if the Court wishes to see one. This will seldom be necessary, since if the respondent has not filed a response, or has affirmatively waived the right to file, and if the Court believes that the petition may have some merit, the respondent will usually be requested to file a response — usually within 30 days from the request.
In recent years, in order to expedite the filing of responses in the more meritorious cases, the Solicitor General has waived the right to file opposition briefs in many cases deemed to be frivolous or insubstantial. States often do the same thing, especially in criminal cases. Such waivers should be filed promptly, in order to speed up the distribution of the petition and the disposition of the case. Usually such petitions are denied, even though the Court may call for a response if any of the Justices so request.
Stern, R., et al., Supreme Court Practice §6.37 at 374-75 (7th ed. 1993) (footnote omitted).
Rule 809.62 (3m) is former Rule 809.62 (7) renumbered and amended. The requirements governing petitions for cross-review fit more logically after the requirements for the petition and the response, contained in Rules 809.62 (2) and (3).
Amended Rule 809.62 (3m) (a) replaces the permissive "may" with the mandatory "shall" to clarify that a petition for cross-review is mandatory if the respondent seeks to reverse, vacate, or modify an adverse decision of the court of appeals.
Amended Rule 809.62 (3m) also clarifies when a respondent must raise an issue in a petition for cross-review, rather than raising the issue in a response to the petition or merely arguing it in the brief. Compare State v. Scheidell, 227 Wis. 2d 285
, 288 n.1, 595 N.W.2d 661
(1999) (respondent cannot argue issue raised below unless the issue was raised in a petition for cross-review), with, e.g., In the Interest of Jamie L., 172 Wis. 2d 218
, 232-33, 493 N.W.2d 56
(1992) (noting "general rule" that a petition for cross-review is not necessary to defend a judgment on any ground previously raised). Complicating these matters are holdings that a party may not petition for review (or cross-review) if it receives a favorable outcome from the court of appeals, State v. Castillo, 213 Wis. 2d 488
, 492, 570 N.W.2d 44
Rule 809.62 (3m) (b) clarifies that a respondent need not file a petition for cross-review to raise alternative issues or grounds in support of either (1) the court of appeals' ultimate result or (2) a judgment less favorable than that granted by the court of appeals but more favorable to the respondent than might be granted for the petitioner. Any such alternative grounds for affirmance or lesser relief should, however, be identified in the response. See Rules 809.62 (3) (d), (3) (e) and (6).
Amended Rule 809.62 (3m) (c) clarifies that a party opposing a petition for cross-review has the same rights and obligations as a respondent under Rule 809.62 (3).
New Rule 809.62 (4m) is created to permit a combined document when a party elects both to respond to the petition for review and to submit a petition for cross-review. The content and format requirements of the combined document are similar to the requirements for a combined brief of respondent and cross-appellant found in s. 809.19 (6) (b) 2.
The last sentence of Rule 809.62 (6) is new and is intended to preserve, for review by the court of appeals following remand, any issue raised at the court of appeals but not decided by that court or by the supreme court on review. For instance, after a civil jury verdict, an insured party might appeal issues relating to liability and damages. The insurer might appeal issues relating to coverage and damages. If the court of appeals reverses on the liability issue, without deciding the coverage and damages issues, and the supreme court accepts review on the liability issue only, amended Rule 809.62 (6) preserves the damage and coverage issues raised in the court of appeals and identified in the petition or response for consideration by the court of appeals following remand and remittitur from the supreme court. Remand of a preserved issue will not occur if the supreme court's decision renders the issue moot or of no effect. [Re Order No. 08-04 effective January 1, 2009]
Sup. Ct. Order No. 08-15
and 08-18, 2009 WI 4
, states "The following Comment to Wis. Stat. §§ (Rule) 809.62 (4) is not adopted but will be published and may be consulted for guidance in interpreting and applying the statute."
The electronic copy of a petition for review, response, or appendix is in addition to and not a replacement for the paper copies required under this rule. The filing requirement is satisfied only when the requisite number of paper copies is filed; the transmittal of an electronic copy does not satisfy requirements for a timely filing. A petition for review shall be physically received in the clerk's office within 30 days of the date of the decision of the court of appeals to invoke this court's appellate jurisdiction. St. John's Home v. Continental Casualty Co., 150 Wis. 2d 37
, 441 N.W.2d 219
(1989), per curiam. [Re Order No. 08-15 and 08-18 effective July 1, 2009]
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
If the court of appeals reverses a defendant's conviction on grounds of insufficiency of evidence, the double jeopardy clause does not bar the supreme court from reviewing the case. State v. Bowden, 93 Wis. 2d 574
, 288 N.W.2d 139
"Decision" under sub. (1) [now sub. (1g)] means the result, disposition, or mandate reached by court, not the opinion. Neely v. State, 89 Wis. 2d 755
, 279 N.W.2d 255
The supreme court will not order a new trial if 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
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 Casualty Co. 150 Wis. 2d 37
, 441 N.W.2d 219
(1989), per curiam.
Citation to an unpublished court of appeals decision to show conflict between districts for purposes of sub. (1) (d) [now sub. (1r) (d)] is appropriate. State v. Higginbotham, 162 Wis. 2d 978
, 471 N.W.2d 24
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
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. If 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
Discretionary review by the Wisconsin supreme court. Wilson and Pokrass. WBB Feb. 1983.
Petitions for review by the Wisconsin supreme court. 1979 WLR 1176.
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.
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
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 after the date of the decision of the supreme court.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii.
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]
Judicial Council Note, 2001: This section has been changed to specify that the time limit for filing motions for reconsideration of supreme court opinions is calculated from the date, not the filing, of the decision. [Re Order No. 00-02 effective July 1, 2001]
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
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 Telephone Co. of Wisconsin, 120 Wis. 2d 419
, 355 N.W.2d 531
ORIGINAL JURISDICTION PROCEDURE
IN SUPREME COURT
Rule (Original action). 809.70(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:
A statement of the issues presented by the controversy.
A statement of the facts necessary to an understanding of the issues.
A statement of the reasons why the court should take jurisdiction.
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 14 days after the service of the order.
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.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1995 a. 225
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii.
Judicial Council Note, 2001: The time limit in sub. (2) was changed from 10 to 14 days. Please see the comment to s. 808.07. [Re Order No. 00-02 effective July 1, 2001]
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.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390
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]
MISCELLANEOUS PROCEDURES IN COURT OF APPEALS AND SUPREME COURT
Rule (Filing and service of papers). 809.80(1)
A person shall file any paper required to be filed by these rules with the clerk of the court unless a different place of filing is expressly required or permitted by statute or rule. The clerk of the court is located at 110 E. Main Street, Madison, Wisconsin 53703. The mailing address for the clerk of the supreme court and the court of appeals is P.O. Box 1688, Madison, Wisconsin 53701-1688.
A person shall serve and file a copy of any paper required or authorized under these rules to be filed in a trial or appellate court as provided in s. 801.14 (1)
, and (4)
Any paper required or authorized to be served on the state in appeals and other proceedings in felony cases in the court of appeals or supreme court shall be served on the attorney general unless the district attorney has been authorized under s. 978.05 (5)
to represent the state. Any paper required or authorized to be served on the state in appeals and other proceedings in misdemeanor cases decided by a single court of appeals judge under s. 752.31 (2)
shall be served on the district attorney. Every petition for review by the supreme court of a decision of the court of appeals in a misdemeanor case shall be served on the attorney general.
All filings — general rule.
Except as provided in pars. (b)
, filing is not timely unless the clerk receives the paper documents within the time fixed for filing. Filing may be accomplished by hand delivery, mail, or by courier. Filing by facsimile is permitted only as set forth in s. 801.16 (2) (a)
. Documents completing transmission after regular business hours of the clerk are considered filed the next business day the clerk's office is open.
(b) Brief or appendix — general rule.
Except as provided in par. (c)
, a brief or appendix is timely filed if, on or before the last day of the time fixed for filing, it is correctly addressed and:
Deposited in the United States mail for delivery to the clerk by first-class mail, or other class of mail that is at least as expeditious, postage pre-paid; or
Delivered to a 3rd-party commercial carrier for delivery to the clerk within 3 calendar days.
(c) Pro se brief or appendix from person confined in institution — special rule.
A pro se brief or appendix from a person confined in an institution is timely filed if the brief or appendix is correctly addressed and delivered to the proper institution authorities for mailing on or before the last day of the time fixed for filing. A confined person who mails a brief or appendix under this subsection shall also file a certification or affidavit setting forth the date on which the document was delivered to the proper institution authorities for mailing.
(d) Petition for review — general rule.
Except as provided in par. (e)
, a petition for review is timely filed only if the clerk actually receives the petition within the time fixed for filing.
(e) Pro se petition for review from person confined in institution — special rule.
The 30-day time limit for the clerk's receipt of a pro se petition for review filed by a person confined in an institution is tolled on the date that the confined person delivers a correctly addressed petition to the proper institution authorities for mailing. The confined person shall also file a certification or affidavit setting forth the date on which the petition was delivered to the proper institution authorities for mailing.
(4) Proof of filing date for brief or appendix. 809.80(4)(a)(a)
When a brief or appendix is filed by mail or commercial carrier in accordance with s. 809.80 (3) (b)
, the attorney or person filing the document shall append a certification or affidavit setting forth the date and manner by which the document was mailed or delivered to a 3rd-party commercial carrier.
If a certification or affidavit is appended, the clerk's office shall consider the brief or appendix filed on the date of mailing or delivery set forth in the certification or affidavit. If no certification or affidavit is appended, the date of filing shall be the date on which the brief or appendix is received by the clerk's office.
The date shown on a postage meter does not establish that the document was mailed on that date.