Chapter 809

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.

809.62(1r)(d) (d) 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.

809.62(1r)(e) (e) 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.

809.62(2) (2) Contents of petition. Except as provided in s. 809.32 (4), the petition must contain:

809.62(2)(a) (a) 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.

809.62(2)(b) (b) A table of contents.

809.62(2)(c) (c) 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.

809.62(2)(d) (d) 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.

809.62(2)(e) (e) 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.

809.62(2)(f) (f) As a separate document, an appendix containing, in the following order, all of the following:

809.62(2)(f)1. 1. The decision and opinion of the court of appeals.

809.62(2)(f)2. 2. 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.

809.62(2)(f)3. 3. Any other portions of the record necessary for an understanding of the petition.

809.62(2)(f)4. 4. A copy of any unpublished opinion cited under s. 809.23 (3) (a) or (b).

809.62(2m) (2m) Inapplicable to parental consent to abortion cases. Subsection (2) 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).

809.62(2r) (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).

809.62(3) (3) Response to petition. Except as provided in sub. (1m) and s. 809.32 (4) and (5), 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) or (b), a copy of the opinion shall be provided in an appendix to the response. If filed, the response may contain any of the following:

809.62(3)(a) (a) Any reasons for denying the petition.

809.62(3)(b) (b) Any perceived defects that may prevent ruling on the merits of any issue in the petition.

809.62(3)(c) (c) 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.

809.62(3)(d) (d) 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.

809.62(3)(e) (e) 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.

809.62(3m) (3m) Petition for cross-review.

809.62(3m)(a) (a) 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.

809.62(3m)(b) (b) No cross-petition required.

809.62(3m)(b)1. 1. 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.

809.62(3m)(b)2. 2. 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.

809.62(3m)(c) (c) Rights and obligations of parties. A party seeking cross-review has the same rights and obligations as a party seeking review under ch. 809, and any party opposing a petition for cross-review has the same rights and obligations as a party opposing review.

809.62(4) (4) Form and length requirements. The petition for review and response, if any, shall conform to s. 809.19 (8) (b) and (bm) and (8g) as to form, pagination, and certification. The petition shall be as short as possible and may not exceed 35 pages in length if a monospaced font or handwriting is used, or 8,000 words if a proportional serif font is used, exclusive of appendix. The first page of the petition for review shall be a white cover page that includes the proper case caption, including the case number, and shall bear the title “Petition for Review.” The first page of the response shall be a white cover page that includes the proper case caption, including the case number, and shall bear the title “Response to Petition for Review.”

809.62(4m) (4m) Combined response and petition for cross-review. When a party elects both to submit a response to the petition for review and to seek cross-review, the first page shall be a white cover page that includes the proper case caption and case number, and shall bear the title “Combined Response and Petition for Cross-Review.” The time limits set forth in sub. (3m) shall apply. The response portion of the combined document shall comply with the requirements of subs. (3) and (4). The cross-review portion of the combined document shall comply with the requirements of subs. (2) and (4), except that the requirement of sub. (2) (d) may be omitted. The cross-review portion shall be preceded by a blank white cover. A signature shall be required only at the conclusion of the cross-review portion of the combined document.

809.62(5) (5) Effect on court of appeals proceedings. Except as provided in s. 809.24, the filing of the petition stays further proceedings in the court of appeals.

809.62(6) (6) Conditions of grant of review. The supreme court may grant the petition or the petition for cross-review or both upon such conditions as it considers appropriate, including the filing of additional briefs. If a petition or petition for cross-review is granted, the petitioner or cross-petitioner cannot raise or argue issues not set forth in the petition or petition for cross-review unless ordered otherwise by the supreme court. The supreme court may limit the issues to be considered on review. If the issues to be considered on review are limited by the supreme court and do not include an issue that was identified in a petition or petition for cross-review and that was left undecided by the court of appeals, the supreme court shall remand that issue to the court of appeals upon remittitur, unless that issue has become moot or would have no effect.

809.62 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1991 a. 263; Sup. Ct. Order No. 93-20, 179 Wis. 2d xxv (1993); 1993 a. 395; 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. 04-08, 2008 WI 108, filed 7-30-08, eff. 1-1-09; Sup. Ct. Order No. 08-15 and Sup. Ct. Order No. 08-18, 2009 WI 4, 311 Wis. 2d xxix; 2009 a. 25, 180; Sup. Ct. Order No. 10-01 and Sup. Ct. Order No. 10-02, 2010 WI 42, 323 Wis. 2d xxiii; 2017 a. 365; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii; 2021 a. 240 s. 30.

809.62 Note Judicial Council Committee’s Note, 1979: The caption of Rule 809.62 is amended to more properly describe the function of the Supreme Court in reviewing decisions of the Court of Appeals.

809.62 Note Rule 809.62 (5) [7] is created to protect the review rights of all parties to a review in the Supreme Court by creating a cross-review provision for a decision being reviewed by the Supreme Court similar to the cross-appeal provision for a judgment or order being appealed to the Court of Appeals from a trial court found in Rule 809.10 (2) (b). New sub. 809.62 (5) gives a party the ability to file for cross-review with the Supreme Court up to an additional 30 days from the filing of a petition for review by another party to the decision rendered by the Court of Appeals. [Re Order effective Jan. 1, 1980]

809.62 Note Judicial Council Committee’s Note, 1981: Rule 809.62 is amended to regulate the form, contents and length of petitions for review. The amendments are intended to focus the petition for review on the criteria promulgated by the supreme court for granting a petition for review, to facilitate the efficient and effective consideration of the petition by the supreme court, and to develop a petition that may be used by the supreme court for consideration of the merits after review is granted.

809.62 Note 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).

809.62 Note 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.

809.62 Note 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.

809.62 Note 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.

809.62 Note 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.

809.62 Note 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.

809.62 Note 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.