BRIEFS FOR THE BRIEF WRITER: Know when to wield a supervisory writ

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Every legal specialty has its outliers — those remedies or procedures that, because they are rarely available or appropriate, tend to shrink from the mind.

Supervisory writs are an appellate lawyer’s outlier. Writs are not appropriate for most appellate issues. But, when they are, it is crucial to understand how to use them.

A supervisory writ is a way to obtain jurisdiction in the Court of Appeals or Supreme Court through other than normal appeal/petition procedures. However, a writ is an extraordinary and drastic remedy to be issued only upon a grievous exigency. State ex. rel. Dressler v. Circuit Court for Racine County, 163 Wis.2d 622, 630, 472 N.W.2d 532 (Ct. App. 1991).

Its narrow function is to provide for direct control of lower courts and tribunals that fail to fulfill nondiscretionary duties, causing harm that the appellate process cannot remedy. State ex. rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 24, 271 Wis.2d 633, 652, 681 N.W.2d 110.

A writ will not be granted unless the petitioner has a clear legal right to the requested action. In addition, the petitioner must show that (1) an appeal is an inadequate remedy; (2) grave hardship or irreparable harm will occur absent the requested relief; (3); the duty sought to be enforced is plain, and the trial court has or intends to violate that duty; no adequate remedy at law exists; and (4) the request has been made “promptly and speedily.” See Burnett v. Alt, 224 Wis.2d 72, 96-97, 589 N.W.2d 21 (1999).

A supervisory writ is not usually available for discretionary determinations, unless an appeal would be inadequate. See In Interest of Tiffany W., 192 Wis.2d 407, 425, 532 N.W.2d 135 (Ct. App. 1995). Similarly, a supervisory writ is not a substitute for a timely appeal. Kalal, 2004 WI 58 at ¶ 24, 271 Wis.2d at 652; Dressler, 163 Wis.2d at 630. In other words, if you’ve missed the deadline for either or your interlocutory appeal petition has been denied, a writ won’t automatically give you a redo.

So, what’s a writ good for, anyway? Well, the appellate courts have granted writ petitions to, among other things, compel trial courts to honor and implement a substitution request, State ex. rel. Tarney v. McCormack, 99 Wis.2d 220, 298 N.W.2d 552 (1980); and to review actions of a John Doe judge, In re John Doe Proceeding, 260 Wis.2d 653, 660 N.W.2d 260 (2003). See also State v. Webb, 160 Wis.2d 622, 636, 467 N.W.2d 108, cert. denied, 502 U.S. 889 (1991) (noting that a criminal defendant may challenge a bindover via a supervisory writ if a subject matter jurisdiction defect exists).

The determination of a supervisory writ petition is discretionary and controlled by equitable principles. The appellate court may consider the rights of the public and third parties in addition to those expressly named in the petition. Kalal, 2004 WI 58 at ¶ 17, 271 Wis.2d at 649.

Writ petition procedures in the Court of Appeals are governed by § 809.51, Wis. Stats. Counsel must file a petition and memorandum, naming as respondents all parties and the court and judge, or other person or body in the proceeding. The petition must contain a statement of the issues; a statement of facts necessary to understand the issues; the relief sought; and the reasons why the appellate court should take jurisdiction.

The court may deny the petition ex parte, but if it so orders, the respondents may file a response and memorandum (or a statement that none will be filed, without admitting the petition) within 14 days of service of the order. The court may hold oral argument.

Petitions, responses and memoranda may not exceed 8,000 words, which is 35 pages if using a mono-spaced font. The petitioner must file a certification of compliance.

According to the Court of Appeals’ Internal Operating Procedures, which describe the internal review process, any requests for temporary relief should accompany the petition (Section VI(10)). See also § 809.52, Wis. Stats.Supervisory writ procedures in the state Supreme Court are governed by § 809.71, Wis. Stats., which incorporates the Court of Appeals’ procedures in § 809.51, Wis. Stats. However, the petitioner must first seek relief in the Court of Appeals.

The Supreme Court writ petition must show why it was impractical to seek relief in the Court of Appeals or, if a petition was filed there, its disposition and the Court of Appeals’ reasons therefore.

As the Judicial Council Notes state, following the Court of Appeals’ decision, the Supreme Court may consider either a petition for review or a petition for supervisory writ, depending on the circumstances and the petitioner’s satisfaction of the respective statutes’ criteria. In other words, the existence of an alternative remedy via a petition for review does not preclude seeking a supervisory writ in the Supreme Court.

Know your supervisory writs. You may only need them rarely, but when you do, you’ll be prepared.