Please ensure Javascript is enabled for purposes of website accessibility

High court discusses stipulated vacatur

By: dmc-admin//November 20, 2002//

High court discusses stipulated vacatur

By: dmc-admin//November 20, 2002//

Listen to this article

The state Supreme Court continues to look at a proposal designed to keep litigants from bargaining with court decisions. Last week, the court resumed discussions on a proposal to eliminate stipulated reversal and stipulated vacatur.

The Supreme Court "approved in principle" last month a statutory change that would keep parties from making a unified request for the court of appeals or the Supreme Court to reverse or vacate the decision of a lower court. The goal was to keep parties from basing the settlement of a case on an appellate court vacating or reversing a lower court decision.

Since then, Supreme Court staff has been drafting new language for the proposal in an effort to address concerns raised at that time about the court maintaining the right on its own initiative to reverse or vacate lower court decisions. The issue involved a request by the Judicial Council that Section 809.18 of the Wisconsin Statutes be changed to read that, "Requests for stipulated reversal or stipulated vacatur of a lower court decision are not permitted."

Concerns

During the follow up discussion at the Nov. 13 administrative conference, Justice David T. Prosser Jr. continued to express concerns about the proposed change. Regardless of what the parties in a lawsuit request, the appellate court would have the final word on whether to vacate or reverse a lower court decision.

"The essence of the rule presented by the Judicial Council and that we voted on is requests are not permitted," Prosser said. "That was what was so offensive to me."

He noted that the rule would not even permit litigants to "ask a court to exercise its discretion for sound policy reasons or for any other reason."

During an Oct. 22 administrative conference, the justices voted 4-2 in favor of the Judicial Council’s proposal. Prosser raised concerns at that time about giving up the court’s discretion regarding whether to reverse or vacate a decision.

Bargaining Chip

The majority of the court opposed the notion that litigants would base settlements on an agreement to jointly request the reversal or vacatur of a decision.

During last week’s discussion, Justice Diane S. Sykes indicated that the court does not "want the judicial decision to be on the bargaining table."

"What we’re seeking to prohibit here is a notice of dismissal that is accompanied by a stipulation of the parties [stating] that, ‘We ask you … to grant this dismissal motion based upon the stipulation that the lower court opinion be vacated and if you don’t, we’re not dismissing it,’" Sykes said.

Justice Ann Walsh Bradley also presented those concerns.

"What we’re getting at is that a stipulation for dismissal cannot be conditioned upon making the request for vacatur or cannot be conditioned upon the reversal or vacatur. … ‘We won’t dismiss unless you do it.’ That’s what we’re trying to address," Bradley said.

She dissented in a 1999 Supreme Court decision in Mason Shoe Manufacturing Co. v. Firstar Bank where the court agreed to vacate a court of appeals decision at the request of both parties.

Links

Wisconsin Supreme Court

In her dissent, joined by Chief Justice Shirley S. Abrahamson, Bradley wrote, "I believe that vacating a published court of appeals’ decision in response to a joint motion made as part of a private settlement agreement is contrary to public policy."

Unpublished Citation

Sykes did raise some concerns about the impact that another anticipated change would have on the desire of litigants to have lower court decisions reversed or vacated. The Supreme Court is in the process of drafting an order that would allow attorneys to cite authored unpublished opinions for their persuasive value. Sykes indicated her plan to file a dissent on that matter. She also noted that if the court allows
attorneys to reference unpublished opinions it might lead to an increase in requests to vacate court of appeals decisions.

As a result of last week’s discussion, court staff will continue to work on the language of the court’s order on stipulated reversal and stipulated vacatur. The Supreme Court has decided to wait until it considers another petition from the court of appeals before reaching a final decision on the stipulated reversal and vacatur issue.

In January, the Supreme Court will consider a court of appeals request to establish deadlines for filing notices of dismissal. Since both petitions deal with Section 809.18 of the Wisconsin Statutes, the court decided to combine the publication of its decision on both issues.

Tony Anderson can be reached by email.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests