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New Supreme Court petition for review rules set to take effect

On Jan. 1, 2009, more detailed rules will guide appellate practitioners in filing and opposing petitions for review by the Wisconsin Supreme Court.

While the amendments to Wis. Stat. sec. 809.62 do not modify the review criteria or the petition deadlines, they more fully describe when a decision is adverse, and thus when a petition for review may be filed, and what should be included in an opposing response.

A party may only petition for review of an adverse decision from the Court of Appeals. An important change is the new description of what type of “adverse decision” may be the subject of a petition. Section 809.62 (1g)(a) now defines an “adverse decision” as “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 the court by any party seeking review.” This includes the denial of or failure to “grant the full relief sought” or denial of “the preferred form of relief.” An adverse decision, however, does not include a party’s “disagreement with the court of appeals’ language or rationale” in granting a party’s requested relief.

The Judicial Committee’s Comment states that this definition is intended to codify prior case law under which a party cannot seek review of a favorable result “merely because of disagreement with the court of appeals’ rationale.” The section nonetheless “underscores the fact” that an appellate decision remains “adverse,” even if it is generally favorable, “to the extent that it does not grant the party all the relief requested” or preferred.

The only material change in the contents of a petition is contained in Sec. 809.62(2), which generally requires that a petition’s issues statement identify the issues which the petitioner wants decided, but which the Court of Appeals did not decide. That section also contains new language that an issue statement is deemed to comprise every subsidiary issue determined by the court of appeals.

It also states that the Supreme Court, if it deems it appropriate, may remand the matter to the court of appeals. Indeed, Sec. 809.62(6) requires the Supreme Court, upon remittitur, to remand to the court of appeals an issue (unless moot or of no effect) which is not included in its limitation of review issues and was not decided by the Court of Appeals.

The modified rule provides greater help to those filing responses to petitions. Section 809.62(3) states that a response “may” contain “any of the following:

(a) any reasons for denying the petition;

(b) any perceived defects that may prevent ruling on the merits of any of a petition’s issues;

(c) any petition’s perceived misstatement of fact or law, bearing on what issues would properly be before the Supreme Court if it granted the petition;

(d) any alternative ground supporting the court of appeals’ result, or a result less favorable to the opponent (such as, according to the Comments, remand for a new trial rather than the granting of judgment); and

(e) any other issues the Supreme Court may need to decide if it grants the petition.”

If subsection (e) is invoked, the response must state whether other issues were raised before the court of appeals, the method or manner of their being raised, and whether and how the Court of Appeals decided them. The Comments note that these rules are not intended to change current waiver and estoppel law, including a respondent’s possible failure to raise non-jurisdictional issues or defects.

The modified rule also clarifies the procedures for cross-petitions. A petition for cross-review is not necessary to defend the Court of Appeals’ “ultimate result or outcome” on any ground, even those not ruled on below, if acceptance of that “ground would not change the result or outcome below.”

No such petition is required for the opponent to raise grounds establishing its right to a result less favorable than that of the court of appeals “but more favorable to it than” that which the Supreme Court might award petitioner. These grounds should be included in the response.

The modified rule should make the petition for review process easier for both sides. Whether they affect the types and quality of the issues which the Supreme Court accepts, however, remains to be seen.

Diane Slomowitz is a partner at Fox, O’Neill & Shannon, S.C. in Milwaukee. Slomowitz can be reached at dslomowitz@foslaw.com.

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