Chapter 809

809.42 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979).

809.42 Note Judicial Council Committee’s Note, 1979: This rule is amended to delete language authorizing an appellant and respondent to waive the filing of briefs in an appeal to the Court of Appeals. The Court of Appeals as a consistent policy does not allow the waiving of filing of briefs. The rule is brought into conformity with that policy. [Re Order effective Jan. 1, 1980]

subch. V of ch. 809 SUBCHAPTER V

DISCRETIONARY JURISDICTION PROCEDURE IN COURT OF APPEALS

809.50 809.50 Rule (Appeal from judgment or order not appealable as of right).

809.50(1) (1) A person shall seek leave of the court to appeal a judgment or order not appealable as of right under s. 808.03 (1) by filing with the court of appeals within 14 days after the entry of the judgment or order a petition and supporting memorandum, if any. The petition and memorandum combined may not exceed 35 pages if a monospaced font or handwriting is used, or 8,000 words if a proportional serif font is used. The petition shall contain:

809.50(1)(a) (a) A statement of the issues presented by the controversy;

809.50(1)(b) (b) A statement of the facts necessary to an understanding of the issues;

809.50(1)(c) (c) A statement showing that review of the judgment or order immediately rather than on an appeal from the final judgment in the case or proceeding will materially advance the termination of the litigation or clarify further proceedings therein, protect a party from substantial or irreparable injury, or clarify an issue of general importance in the administration of justice; and

809.50(1)(d) (d) A copy of the judgment or order sought to be reviewed.

809.50(1m) (1m) The clerk of the court of appeals shall docket the petition upon receipt of the items referred to under sub. (1). The clerk shall assign a case number, create a notice that the petition has been docketed, and transmit the notice and petition to the clerk of the circuit court. For electronic filing users in the circuit court case, receipt of the notice of docketing and the petition through the circuit court electronic filing system provides access to the appellate proceeding and constitutes service of the petition. Where service on the attorney general is required by s. 809.802 (1), service shall be made as provided in s. 809.802 (2). The clerk shall serve the notice of docketing on paper parties by traditional methods. The petitioner shall serve the petition on paper parties by traditional methods.

809.50(2) (2) An opposing party in circuit court shall file a response with supporting memorandum, if any, within 14 days after the service of the petition. The response and memorandum combined may not exceed 35 pages if a monospaced font or handwriting is used, or 8,000 words if a proportional serif font is used. Costs and fees may be awarded against any party in a petition for leave to appeal proceeding.

809.50(3) (3) If the court grants leave to appeal, the procedures for appeals from final judgments are applicable to further proceedings in the appeal. The entry of the order granting leave to appeal has the effect of the filing of a notice of appeal. The court may specify the issue or issues that it will review in the appeal. If the court grants leave to appeal, the petitioner shall file a docketing statement in the court of appeals if required by s. 809.10 (1) (d), identifying the issues to be reviewed in the appeal. The docketing statement shall be filed within 11 days after the date of the order granting the petition for leave to appeal.

809.50(4) (4) A person filing a petition or response under this section shall file with the petition or response a certification setting forth the word count or page count of the document as provided in sub. (1) or (2).

809.50 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 151 Wis. 2d xvii (1989); 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; 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; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

809.50 Note 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]

809.50 Note 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]

809.50 Note 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]

809.50 Note 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]

809.50 Note NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

809.50 Note Comment, 2021: A petition for leave to appeal may be filed in the court of appeals and served through the circuit court case in the same manner as a pre-appeal motion under s. 809.14 (5). Where the state needs to be added as a party, the attorney general is served through the appellate electronic filing system.

809.50 Annotation 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.

809.50 Annotation A person who is granted leave to appeal a nonfinal order is limited solely to those issues outlined in the petition to the court of appeals. State v. Aufderhaar, 2004 WI App 208, 277 Wis. 2d 173, 689 N.W.2d 674, 03-2820.

809.50 Annotation Reversed on other grounds. 2005 WI 108, 283 Wis. 2d 336, 700 N.W.2d 4, 03-2820.

809.50 Annotation Interlocutory Appeals in Wisconsin. Towers, Arnold, Tess-Mattner, & Levenson. Wis. Law. July 1993.

809.51 809.51 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 shall be served on each party and proposed respondent, and, if applicable, upon the originating court or tribunal, by traditional methods as provided in s. 809.80 (2). The petition and memorandum combined may not exceed 35 pages if a monospaced font or handwriting 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:

809.51(1)(a) (a) A statement of the issues presented by the controversy;

809.51(1)(b) (b) A statement of the facts necessary to an understanding of the issues;

809.51(1)(c) (c) The relief sought; and

809.51(1)(d) (d) The reasons why the court should take jurisdiction.

809.51(1m) (1m) The clerk of the court of appeals shall docket the petition upon receipt of the items referred to in sub. (1). The clerk shall assign a case number, create a notice that the petition has been docketed, transmit the notice of docketing to the clerk of circuit court if applicable, and send the notice of docketing to the parties by traditional methods.

809.51(2) (2) 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 or handwriting 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 the respondent does not intend to file a response, but the petition is not thereby admitted.

809.51(3) (3) 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.

809.51(4) (4) A person filing a petition or response under this section shall file with the petition or response a certification setting forth the word count or page count of the document as provided in sub. (1) or (2).

809.51 History History: 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; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

809.51 Note 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]

809.51 Note 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]

809.51 Note NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

809.51 Note Comment, 2021: Unlike an appeal from a circuit court proceeding, writs and original actions do not necessarily arise from a pending case through which the parties can be served electronically. A proceeding under this section is a new action that must be served on the respondents by traditional methods.

809.51 Annotation 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. Circuit Court, 91 Wis. 2d 833, 284 N.W.2d 102 (1979).

809.51 Annotation 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 (1986).

809.51 Annotation 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, 2019 WI 15, 385 Wis. 2d 516, 922 N.W.2d 832, 18-0291.

809.51 Annotation 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, 18-0203.

809.52 809.52 Rule (Temporary relief). A petitioner may request in a petition filed under s. 809.50 or 809.51 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.

809.52 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390 s. 252.

809.52 Note 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.

809.52 Note 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.

809.52 Note 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]

subch. VI of ch. 809 SUBCHAPTER VI

APPELLATE PROCEDURE IN SUPREME COURT

809.60 809.60 Rule (Petition to bypass).

809.60(1) (1) 

809.60(1)(a) (a) 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.

809.60(1)(b) (b) The clerk shall docket the petition to bypass in the supreme court and notify the parties that the petition has been filed. For electronic filing users in the court of appeals proceeding, the notice of activity constitutes service of the petition and provides notification that the proceeding is pending before the supreme court. The clerk shall serve the notice of docketing on paper parties by traditional methods. The petitioner shall serve the petition for bypass on paper parties by traditional methods.

809.60(2) (2) An opposing party may file a response to the petition within 14 days after the service of the petition.

809.60(3) (3) The filing of the petition stays the court of appeals from taking under submission the appeal or other proceeding.

809.60(4) (4) The supreme court may grant the petition upon such conditions as it considers appropriate.

809.60(5) (5) 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.

809.60 History History: 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; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

809.60 Note 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]

809.60 Note 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]

809.60 Note NOTE: Sup. Ct. Order No. 20-07 states that “the Comments to the statutes created pursuant to this order are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”

809.60 Note Comment, 2021: Sub. (1) provides that when a petition to bypass is filed, electronic filing users will be served through the electronic filing system.

809.61 809.61 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.

809.61 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978).

809.61 Annotation 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 (1984).

809.61 Annotation 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 this section. 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, 00-1680.

809.61 Annotation Discretionary review by the Wisconsin Supreme Court. Pokrass. WBB Mar. 1985.

809.62 809.62 Rule (Petition for review).

809.62(1g) (1g) Definitions. In this section:

809.62(1g)(a) (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.

809.62(1g)(b) (b) “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.

809.62(1g)(c) (c) “Adverse decision” does not include a party’s disagreement with the court of appeals’ language or rationale in granting a party’s requested relief.

809.62(1m) (1m) General rule; time limits.

809.62(1m)(a) (a)

809.62(1m)(a)1. 1. 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. The clerk shall docket the petition for review in the supreme court and notify the parties that the petition has been filed.

809.62(1m)(a)2. 2. For electronic filing users in the court of appeals proceeding, the notice of activity constitutes service of the petition and provides notification that the petition is pending before the supreme court. Where service on the attorney general is required by s. 809.802 (1), service shall be made as provided in s. 809.802 (2). The clerk shall serve the notice of docketing on paper parties by traditional methods. The petitioner shall serve the petition for review on paper parties by traditional methods.

809.62(1m)(b) (b) 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.

809.62(1m)(c) (c) 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.

809.62(1m)(d) (d) 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.

809.62(1m)(e) (e) 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.

809.62(1r) (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:

809.62(1r)(a) (a) A real and significant question of federal or state constitutional law is presented.

809.62(1r)(b) (b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.

809.62(1r)(c) (c) A decision by the supreme court will help develop, clarify or harmonize the law, and

809.62(1r)(c)1. 1. The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or

809.62(1r)(c)2. 2. The question presented is a novel one, the resolution of which will have statewide impact; or

809.62(1r)(c)3. 3. 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.