Judicial Council Committee's Note, 1978: Section 808.03 (1) makes only final judgments and final orders appealable as of right. All other judgments and orders are appealable only in the discretion of the court. This section provides the procedure for asking the court to permit the appeal of a nonfinal order. The issue of whether the court should hear the appeal is presented to the court by petition with both parties given the opportunity of submitting memoranda on the question. The standards on which nonfinal judgments or orders should be reviewed immediately are set forth in s. 808.03 (2) and are taken from the American Bar Association's Standards of Judicial Administration, Standards Relating to Appellate Courts, s. 3.12 (b). [Re Order effective July 1, 1978]
Judicial Council Committee's Note, 1979: Sub. (1) (c) is amended to conform with 808.03 (2) (b), which sets out the standards created by the Wisconsin Legislature for appeals to the Court of Appeals by permission. A drafting error in the original preparation of chapter 809 replaced the word “or" found in 808.03 (2) (b) with the word “and", which results in a party having to show in a petition to the Court of Appeals for the court to assume discretionary jurisdiction that granting such a petition will protect a party from both substantial “and" irreparable injury rather than meeting just one of the 2 criteria, as was the intention of the Wisconsin Legislature. [Re Order effective Jan. 1, 1980]
Judicial Council Note, 2001:
The time limits in subs. (1) and (2) were changed from 10 to 14 days. Please see the comment to s. 808.07. Subsection (3) specifies that the court may grant discretionary review on specified issues. This rule codifies Fedders v. American Family Mut. Ins. Co.
, 230 Wis. 2d 577
, 601 N.W.2d 861
(Ct. App. 1999), 99-1526
, which held a grant of leave to appeal from a nonfinal order or judgment does not authorize cross-appeals as of right from the same or from another nonfinal order or judgment; cross-appeals require a separate petition for leave to appeal. [Re Order No. 00-02 effective July 1, 2001]
Judicial Council Note, 2002: Subsection (3) is amended to clarify the docketing statement requirements following the grant of a petition for leave to appeal a non-final order. [Re Order No. 02-01 effective January 1, 2003]
Once leave to appeal is granted, a cross-appeal from the same interlocutory order or judgment in the action requires a petition for leave to appeal. Fedders v. American Family Mutual Insurance Co., 230 Wis. 2d 577
, 601 N.W.2d 861
(Ct. App. 1999), 99-1526
Interlocutory Appeals in Wisconsin. Towers, Arnold, Tess-Mattner, & Levenson. Wis. Law. July 1993.
Rule (Supervisory writ and original jurisdiction to issue prerogative writ). 809.51(1)(1)
A person may request the court to exercise its supervisory jurisdiction or its original jurisdiction to issue a prerogative writ over a court and the presiding judge, or other person or body, by filing a petition and supporting memorandum. The petition and memorandum combined may not exceed 35 pages if a monospaced font is used or 8,000 words if a proportional serif font is used. The petitioner shall name as respondents the court and judge, or other person or body, and all other parties in the action or proceeding. The petition shall contain:
A statement of the issues presented by the controversy;
A statement of the facts necessary to an understanding of the issues;
The reasons why the court should take jurisdiction.
The court may deny the petition ex parte or may order the respondents to file a response with a supporting memorandum, if any, and may order oral argument on the merits of the petition. The response and memorandum combined may not exceed 35 pages if a monospaced font is used or 8,000 words if a proportional serif font is used. The respondents shall respond with supporting memorandum within 14 days after service of the order. A respondent may file a letter stating that he or she does not intend to file a response, but the petition is not thereby admitted.
The court, upon a consideration of the petition, responses, supporting memoranda and argument, may grant or deny the petition or order such additional proceedings as it considers appropriate. Costs and fees may be awarded against any party in a writ proceeding.
A person filing a petition under this section shall append to the petition a statement identifying whether the petition is produced with a monospaced font or with a proportional serif font. If produced with a proportional serif font, the person shall set forth the word count of the petition.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); Sup. Ct. Order, 151 Wis. 2d xix (1981); Sup. Ct. Order, 164 Wis. 2d xxix (1991); Sup. Ct. Order, 171 Wis. 2d xxxv (1992); Sup. Ct. Order No. 93-20
, 179 Wis. 2d xxv (1993); Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii.
Judicial Council Committee's Note, 1981: Sub. (1) is amended to reflect the procedure for issuance of a prerogative writ currently followed by the court of appeals and to alert attorneys to the correct procedure to be followed. Rule 809.51 governs the procedures for seeking a petition for supervisory writ or original jurisdiction prerogative writ in the court of appeals. [Re Order effective Jan. 1, 1982]
Judicial Council Note, 2001: The time limit in sub. (2) was changed from 10 to 14 days. See the comment to s. 808.07. [Re Order No. 00-02 effective July 1, 2001]
The court of appeals abused its discretion by ordering oral argument one day after the petition for a writ was filed and served. State ex rel. Breier v. Milwaukee County Circuit Court, 91 Wis. 2d 833
, 284 N.W.2d 102
The court of appeals does not have jurisdiction to entertain original actions unrelated to its supervisory or appellate authority over circuit courts. State ex rel. Swan v. Elections Board, 133 Wis. 2d 87
, 394 N.W.2d 732
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
Neither this section nor equity imposes a prompt and speedy pleading requirement in the filing of a petition for habeas corpus. The equitable defense of laches exists to address any prejudice to the state caused by a petitioner's unreasonable delay in the filing of a habeas petition. A habeas petition may not be denied ex parte solely because the petitioner failed to assert and demonstrate the petitioner sought relief in a prompt and speedy manner. State ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58
, 387 Wis. 2d 50
, 928 N.W.2d 480
Rule (Temporary relief).
A petitioner may request in a petition filed under s. 809.50
that the court grant temporary relief pending disposition of the petition. The court or a judge of the court may grant temporary relief upon the terms and conditions it considers appropriate.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390
Judicial Council Committee's Note, 1978: Rules 809.51 to 809.52 incorporate into the rules for the first time the procedures to be followed when the court is asked to exercise its supervisory jurisdiction. For an excellent discussion of original and supervisory jurisdiction of the Supreme Court and the distinction between them see the opinion by Justice Wickhem in Petition of Heil, 230 Wis. 428, 284 N.W. 42 (1939). To a large degree the procedures specified in 201 Wis. 123, 229 N.W. 643 (1930) are followed, but some of the features of Rule 21, FRAP, are included.
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.
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
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 14 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.
An opposing party may file a response to the petition within 14 days after the service of the petition.
The filing of the petition stays the court of appeals from taking under submission the appeal or other proceeding.
The supreme court may grant the petition upon such conditions as it considers appropriate.
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.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii.
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]
Judicial Council Note, 2001: The time limits in subs. (1) and (2) have been changed from 10 to 14 days. Please see the comment to s. 808.07. [Re Order No. 00-02 effective July 1, 2001]
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.
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).
The supreme court's denial of certification has no precedential value on the merits of the case. State v. Shillcutt, 119 Wis. 2d 788
, 350 N.W.2d 686
When confronted with a direct conflict between a decision of the state supreme court and a later decision of the U.S. Supreme Court on a matter of federal law, the court of appeals may certify the case to the state supreme court under s. 809.61. If it does not, or certification is not accepted, the supremacy clause of the U. S. Constitution compels adherence to U.S. Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of the state supreme court. State v. Jennings, 2002 WI 44
, 252 Wis. 2d 228
, 647 N.W.2d 142
Discretionary review by the Wisconsin Supreme Court. Pokrass. WBB Mar. 1985.
Rule (Petition for review). 809.62(1g)(a)
“Adverse decision" means a final order or decision of the court of appeals, the result of which is contrary, in whole or in part, to the result sought in that court by any party seeking review.
“Adverse decision" includes the court of appeals' denial of or failure to grant the full relief sought or the court of appeals' denial of the preferred form of relief.
“Adverse decision" does not include a party's disagreement with the court of appeals' language or rationale in granting a party's requested relief.
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
If a motion for reconsideration has been timely filed in the court of appeals under s. 809.24 (1)
, no party may file a petition for review in the supreme court until after the court of appeals issues an order denying the motion for reconsideration or an amended decision.
If a motion for reconsideration is denied and a petition for review had been filed before the motion for reconsideration was filed, and if the time for filing a response to the petition had not expired when the motion for reconsideration was filed, a response to the petition may be filed within 14 days of the order denying the motion for reconsideration.
If the court of appeals files an amended decision in response to the motion for reconsideration under s. 809.24 (1)
, any party who filed a petition for review prior to the filing of the motion for reconsideration must file with the clerk of the supreme court a notice affirming the pending petition, a notice withdrawing the pending petition, or an amendment to the pending petition within 14 days after the date of the filing of the court of appeals' amended decision.
After the petitioning party files a notice affirming or withdrawing the pending petition or an amendment to the pending petition under par. (d)
, the responding party must file a response to the notice or amendment within 14 days after service of the notice or amendment. The response may be an affirmation of the responding party's earlier response or a new response.
(1r) Criteria for granting review.
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:
A real and significant question of federal or state constitutional law is presented.
The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.
A decision by the supreme court will help develop, clarify or harmonize the law, and
The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or
The question presented is a novel one, the resolution of which will have statewide impact; or
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.
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.
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.
(2) Contents of petition.
Except as provided in s. 809.32 (4)
, the petition must contain:
A statement of the issues the petitioner seeks to have reviewed, the method or manner of raising the issues in the court of appeals and how the court of appeals decided the issues. The statement of issues shall also identify any issues the petitioner seeks to have reviewed that were not decided by the court of appeals. The statement of an issue shall be deemed to comprise every subsidiary issue as determined by the court. If deemed appropriate by the supreme court, the matter may be remanded to the court of appeals.
A concise statement of the criteria of sub. (1r)
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.
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 circuit 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 citation to the record.
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.
An appendix containing, in the following order:
The judgments, orders, findings of fact, conclusions of law and memorandum decisions of the circuit court and administrative agencies necessary for an understanding of the petition.
Any other portions of the record necessary for an understanding of the petition.
(2m) Inapplicable to parental consent to abortion cases.
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)
(2r) Application to termination of parental rights cases.
This section applies to petitions for review of an appeal under s. 809.107
, except as provided in s. 809.107 (6) (f)
(3) Response to petition.
Except as provided in sub. (1m)
and s. 809.32 (4)
, an opposing party may file a response to the petition within 14 days after the service of the petition. If an unpublished opinion is cited under s. 809.23 (3) (a)
, a copy of the opinion shall be provided in an appendix to the response. If filed, the response may contain any of the following:
Any perceived defects that may prevent ruling on the merits of any issue in the petition.
Any perceived misstatements of fact or law set forth in the petition that have a bearing on the question of what issues properly would be before the court if the petition were granted.
Any alternative ground supporting the court of appeals result or a result less favorable to the opposing party than that granted by the court of appeals.
Any other issues the court may need to decide if the petition is granted, in which case the statement shall indicate whether the other issues were raised before the court of appeals, the method or manner of raising the issues in the court of appeals, whether the court of appeals decided the issues, and how the court of appeals decided the issues.
When required; time limit.
A party who seeks to reverse, vacate, or modify an adverse decision of the court of appeals shall 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 petition for cross-review is not necessary to enable an opposing party to defend the court of appeals' ultimate result or outcome based on any ground, whether or not that ground was ruled upon by the lower courts, as long as the supreme court's acceptance of that ground would not change the result or outcome below.
A petition for cross-review is not necessary to enable an opposing party to assert grounds that establish the party's right to a result that is less favorable to it than the result or outcome rendered by the court of appeals but more favorable to it than the result or outcome that might be awarded to the petitioner.