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. s. 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)(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]
A party requesting a supervisory writ under this section must demonstrate that: 1) an appeal is an inadequate remedy; 2) grave hardship or irreparable harm will result; 3) the duty of the trial court is plain, and it acted or intends to act in violation of that duty; and 4) the request for relief is made promptly and speedily. DNR v. Wisconsin Court of Appeals, District IV, 2018 WI 25
, 380 Wis. 2d 354
, 909 N.W.2d 114
The term “supervisory writ" is both: 1) the general term used in petitioning the court of appeals to exercise its constitutional supervisory authority and in petitioning the supreme court to exercise its constitutional superintending authority; and 2) a new writ the supreme court devised independent of the traditional common law writs. State ex rel. CityDeck Landing LLC v. Circuit Court for Brown County, 2019 WI 15
, 385 Wis. 2d 516
, 922 N.W.2d 832
When the circuit court in this case ordered the arbitration of a private dispute stayed until the court could decide an insurance coverage dispute, the plaintiff fulfilled all four criteria for the supreme court to issue a supervisory writ under this section. State ex rel. CityDeck Landing LLC v. Circuit Court for Brown County, 2019 WI 15
, 385 Wis. 2d 516
, 922 N.W.2d 832
MISCELLANEOUS PROCEDURES IN COURT OF APPEALS AND SUPREME COURT
Rule (Filing and service of papers). 809.80(1)(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.
(5) Electronic briefs and no-merit reports. 809.80(5)(a)1.1.
The clerk shall review the electronic copy of the brief, no-merit report, or supplemental no-merit report to determine if the electronic document should be accepted for filing.
If the clerk accepts the electronic copy of the brief, no-merit report, or supplemental no-merit report under subd. 1.
, the electronic copy shall be considered transmitted to the court at the time the original transmission to the electronic filing system was complete. Upon acceptance of the electronic copy, the electronic filing system shall issue a confirmation with the date and time of the original transmission. The confirmation receipt shall serve as proof of the electronic transmission only. The filing date for the document remains the date on which the paper document is filed.
If the clerk rejects the electronic copy of the document following review under subd. 1.
, the filer will receive notification of the rejection. The filer may be required to resubmit the electronic copy of the document.
(b) Effect of noncompliance.
Failure to transmit the electronic copy of the brief, no-merit report, or supplemental no-merit report on or before the date that the paper document is filed may result in the document being considered untimely, in the absence of leave of the court.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390
; Sup. Ct. Order, 130 Wis. 2d xi (1986); 1989 a. 31
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01
, 2002 WI 120, 255 Wis. 2d xiii; 2005 a. 253
; Sup. Ct. Order No. 08-15
and Sup. Ct. Order No. 08-18
, 2009 WI 4, 311 Wis. 2d xxix; Sup. Ct. Order No. 13-10
, 2014 WI 45, 354 Wis. 2d xliii; Sup. Ct. Order No. 14-03
, 2016 WI 29, 368 Wis. 2d xiii; Sup. Ct. Order No. 14-03A
, 2016 WI 80, 370 Wis. 2d xxxiii.
Judicial Council Committee's Note, 1978: The prior requirement of an affidavit of service is eliminated. The provision of the Rules of Civil Procedure that the filing of a paper is a certification that the paper has been served is adopted. [Re Order effective July 1, 1978]
Judicial Council Note, 1986: Sub. (2) (b) does not change the existing service rules; it is intended to consolidate and clarify the procedure specified by ss. 59.47 (7), 165.25 (1) and 752.31 (2) and (3). [Re Order effective July 1, 1986]
Judicial Council Note, 2001: Subsection (1) was amended to provide the correct address of the clerk of the supreme court and court of appeals. [Re Order No. 00-02 effective July 1, 2001]
Judicial Council Note, 2002: Subsections (3) through (4) are new, and are taken largely from the Federal Rules of Appellate Procedure, Rule 25. Under the former rules, a brief was not filed until the clerk physically received it, regardless of when the brief may have been mailed. Because a party outside the Madison area had to allow time for postal or courier delivery, briefing periods were often adversely affected merely to ensure that a brief was actually received by the clerk before the expiration of the filing deadline.
Subsection (3) (a) retains the general rule that a document is not filed until it is received by the clerk. Filing may be accomplished in person, by mail, or by courier or common carrier. Electronic filing of papers, other than filing by facsimile, is not permitted unless otherwise ordered by the supreme court. See s. 801.16 (2) addressing rules governing facsimile filing. The supreme court and the court of appeals have adopted local rules governing facsimile filing.
However, sub. (3) (b) creates a mailbox rule for briefs and appendices
only. For briefs and appendices, filing will be considered timely if, on or before the deadline, the brief or appendix is correctly addressed and either: (a) deposited in the United States mail for delivery by first-class mail, or other class of mail at least as expeditious, postage pre-paid, or (b) delivered to a commercial delivery service for delivery within 3 calendar days. When a brief or appendix is mailed or sent by commercial courier, subsection (4) requires that the party also file a certification or affidavit of mailing stating the date and manner of mailing or delivery.
Subsection (3) (c) addresses pro se briefs and appendices filed by confined persons. For confined persons, a brief or appendix will be timely filed if, on or before the deadline, the brief or appendix is correctly addressed and delivered to the proper institution authorities for mailing. In order for the brief or appendix to be timely filed under sub. (3) (c), a certification or affidavit must be filed stating the date on which the brief or appendix was delivered to the proper institution authorities for mailing. The important point is that the pro se confined person must follow the institution rules or practices as to outgoing mail — whether they require placing mail in the hands of certain institution authorities, depositing mail in a designated receptacle, or some other procedure. See State ex rel. Nichols v. Litscher
, 2001 WI 119
¶ 32 n. 6, 247 Wis. 2d 1013
, 1028 n. 6, 635 N.W.2d 292
Subsection (3) (d) reiterates the long-standing rule that a petition for review filed with the clerk of the supreme court must actually be received by the clerk on or before the last day of the filing period. The time limit for filing a petition for review cannot be extended. The timely filing of a petition for review is necessary to invoke the supreme court's appellate jurisdiction. See First Wis. Nat'l Bank of Madison v. Nicholaou
, 87 Wis. 2d 360
, 274 N.W.2d 704
(1979). The mailbox rule for briefs and appendices created in sub. (3) (b) does not apply to the filing of a petition for review under s. 809.62.