Chapter 752

752.31(3) (3) A case specified under sub. (2) shall be decided by one court of appeals judge, except that any party on appeal or other proceeding in the court of appeals may move in writing to the chief judge of the court of appeals that the case be decided by a 3-judge panel. The chief judge may grant or deny the request ex parte. Oral arguments permitted on any appeal which is decided by a single court of appeals judge may be heard by telephone or in the county where the case or action originated.

752.31(4) (4) If a request for a 3-judge panel is granted under sub. (3), the district attorney handling the case under s. 978.05 (5) shall transfer all necessary files and papers relating to the case to the attorney general.

752.31 History History: 1977 c. 187; 1979 c. 32 s. 92 (16); 1979 c. 192; 1981 c. 152, 165, 391; 1983 a. 189 s. 329 (34); 1985 a. 29, 102; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1989 a. 31; 1991 a. 122; 1995 a. 77.

752.31 Note Judicial Council Note, 1979: Sub. (2) is amended to clarify that the judge in those cases in which a single court of appeals judge determines the case also has the authority to issue any necessary writs required in the case. The term “other proceedings” includes petitions for supervisory writs and original jurisdiction prerogative writs. Sub. (2) has also been amended to clarify that, in cases decided by a single court of appeals judge, the case is decided by the judge rather than heard. Some single-judge appeals are not heard as oral argument may not take place in the case.

752.31 Annotation Sub. (3) is amended to clarify that a single-judge appeal is decided rather than heard by the judge. The prior statutory provision that, upon a timely request, a case specified in sub. (2) shall actually be heard in the county where the case or action originated remains unchanged. Language has also been added to sub. (3) to clarify that the procedure to request the chief judge of the court of appeals to have a single-judge case be decided by a 3-judge panel also applies to other proceedings in the court of appeals, which may include petitions for supervisory writs and original jurisdiction prerogative writs. [Bill 396-S]

752.31 Note Judicial Council Note, 1981: Sub. (2) is amended to provide that cases under ch. 55, like cases under ch. 51, are decided as specified in sub. (3) and to clarify that cases under s. 343.305 are also decided as specified in sub. (3). Cases under ch. 55 and forfeitures are to be decided in the same manner as the other types of cases specified in sub. (2). [Bill 737-A]

752.31 Note Judicial Council Note, 1985: Sub. (2) (c) is amended to clarify that appeals in habitual traffic offender cases may be decided by one court of appeals judge. [85 Act 102]

752.31 Note Judicial Council Note, 1988: The amendment to sub. (3) allows oral arguments permitted in 1-judge appeals to be heard by telephone conference or in the county where the action originated, at the discretion of the judge. [Re Order effective Jan. 1, 1988]

752.31 Annotation Subs. (2) (d) and (3) provide that appeals in protective placement cases under ch. 55 are heard by a single court of appeals judge while the general rule under sub. (1) is that cases disposed of on the merits, including guardianship orders under ch. 54, are heard by a three-judge panel. When an appeal is taken from a single action granting both a guardianship and protective placement petition, the appeal is to be decided by a three-judge panel. Waukesha County v. Genevieve M., 2009 WI App 173, 322 Wis. 2d 131, 776 N.W.2d 640, 09-1755.

752.35 752.35 Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.

752.35 History History: 1977 c. 187.

752.35 Annotation In relying solely on affidavits of persons who could have been produced at a postconviction hearing but were not, there was an insufficient basis on which the court of appeals could have exercised its discretion. State v. McConnohie, 113 Wis. 2d 362, 334 N.W.2d 903 (1983).

752.35 Annotation The court of appeals erred as a matter of law in granting a new trial. Although a juror incompletely responded to material questions on voir dire, the litigant failed to demonstrate that the juror more probably than not was biased against the litigant. Discussing the criteria for discretionary reversal. State v. Wyss, 124 Wis. 2d 681, 370 N.W.2d 745 (1985).

752.35 Annotation Discussing the court of appeals’ error-correcting function. State v. Schumacher, 144 Wis. 2d 388, 424 N.W.2d 672 (1988).

752.35 Annotation In reviewing a discretionary reversal by the court of appeals, the supreme court uses the abuse of discretion standard. State v. Johnson, 149 Wis. 2d 418, 439 N.W.2d 122 (1989).

752.35 Annotation Confirmed. 153 Wis. 2d 121, 449 N.W.2d 845 (1990).

752.35 Annotation Discussing the court’s authority under this section. Vollmer v. Luety, 156 Wis. 2d 1, 456 N.W.2d 797 (1990).

752.35 Annotation Discretionary reversal is not applicable to judicial review of Labor and Industry Review Commission orders under the Worker’s Compensation Act, ch. 102. There is no power to reopen a matter that has been fully determined under the Act. Kwaterski v. LIRC, 158 Wis. 2d 112, 462 N.W.2d 534 (Ct. App. 1990).

752.35 Annotation An appeal of an unsuccessful collateral attack under s. 974.06 does not allow discretionary reversal of an order or judgment that was the subject of a collateral attack. State v. Allen, 159 Wis. 2d 53, 464 N.W.2d 426 (Ct. App. 1990). But see State v. Armstrong, 2005 WI 119, 283 Wis. 2d 639, 700 N.W.2d 98, 01-2789.

752.35 Annotation Discussing reversal on grounds that the real controversy was not fully tried. State v. Hicks, 202 Wis. 2d 150, 549 N.W.2d 435 (1996), 94-2256. See also State v. Jeffrey A.W., 2010 WI App 29, 323 Wis. 2d 541, 780 N.W.2d 231, 09-0645.

752.35 Annotation This section does not apply to proceedings for judicial review under ch. 227. Habermehl Electric, Inc. v. DOT, 2003 WI App 39, 260 Wis. 2d 466, 659 N.W.2d 463, 02-1573.

752.35 Annotation A reviewing court upholds the findings of fact by a trier of fact unless they are clearly erroneous. The determination of whether a party has met the party’s burden is a matter of fact, not law. The reason given by the court of appeals in this case for invoking the power of discretionary reversal was that the defendant had “met his burden,” which was going too far for a reviewing court on a question of fact. State v. Kucharski, 2015 WI 64, 363 Wis. 2d 658, 866 N.W.2d 697, 13-0557.

752.35 Annotation This section should be used only in an exceptional case, after all other claims have been weighed and determined to be unsuccessful. In exercising discretionary reversal, the court of appeals must engage in an analysis setting forth the reasons that the case may be characterized as exceptional. State v. McKellips, 2016 WI 51, 369 Wis. 2d 437, 881 N.W.2d 258, 14-0827.

752.35 Annotation State v. Wyss: A New Appellate Standard for Granting New Trials in the Interest of Justice. Mollway. 1987 WLR 171.

752.35 Annotation A Fearless Search for the Truth No Longer: State v. Henley and Its Destructive Impact on New Trials in the Interest of Justice. Mark. 2012 WLR 1367.

752.37 752.37 Enforcement of judgments and determinations. The court of appeals has all power and authority to enforce its judgments and determinations and to exercise its jurisdiction.

752.37 History History: 1977 c. 187.

752.39 752.39 Referral of issues of fact. In actions where the court of appeals has taken original jurisdiction, the court may refer issues of fact to a circuit court or referee for determination.

752.39 History History: 1977 c. 187.

752.41 752.41 Decisions.

752.41(1) (1) In each case, the court of appeals shall provide a written opinion containing a written summary of the reasons for the decision made by the court.

752.41(2) (2) Officially published opinions of the court of appeals shall have statewide precedential effect.

752.41(3) (3) The supreme court shall determine by rule the manner in which the court of appeals determines which of its decisions shall be published.

752.41 History History: 1977 c. 187.

752.41 Annotation Only the supreme court has the power to overrule, modify, or withdraw language from a published opinion of the court of appeals. Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997), 95-1963.

752.41 Annotation The Noncitation Rule and the Concept of Stare Decisis. Walther. 61 MLR 581 (1978).

752.61 752.61 State assumption of costs. The state shall pay for all costs of implementation and operation of the court of appeals. Payments shall be made under s. 20.660.

752.61 History History: 1977 c. 187.