Two side comments in recent Wisconsin Supreme Court decisions have left appellate lawyers wondering whether the rules of procedure have changed for parties defending a Court of Appeals decision before the high court.
The questions stem from recent decisions in two criminal cases: State v. Sulla and State v. Jimmie Lee Smith. In both, prosecutors were seeking a review of a Court of Appeals decision.
In a step seemingly out of keeping with previous practice, the Supreme Court declined to take up certain arguments because they had not been brought up in the responses to the petitions for review. The high court found that the omission meant the respondents — criminal defendants in both cases — had in essence waived their right to bring those matters up.
Ellen Henak, a Milwaukee lawyer specializing in criminal appeals, said the effects of the apparent change are likely to be felt far beyond the Smith and Sulla cases. She said respondents’ ability to defend favorable court of appeals’ decisions could be greatly curtailed.
“What (the two holdings) have appeared to have done now is to make it so that the respondent has no way, if they did not lose on the result below, to raise issues that are fairly what is part of what’s going on,” she said.
Robert Henak, Ellen’s husband and also a specialist in criminal appeals, has been alerting his colleagues to what he is deeming a sudden change to formerly well-settled rules. If that’s the case, he said, litigants in both civil and criminal cases may soon come to feel as if the rug has been pulled out from under them.
“This is not a subtle change,” said Robert Henak. “This is something where it really is a dramatic change in long-established appellate procedure.”
Since 1900, the general rule in Wisconsin has been that respondents may use any legitimate argument to defend a decision reached by an appellate court. That allowance extended even to points that were never presented on appeal.
To have such an argument introduced, a respondent needed only to raise the argument in briefs submitted to the Supreme Court.
When it comes to petitioners, though, the rules are starkly different. Unlike respondents, petitioners are allowed to go before the Supreme Court only with arguments they had brought up in a petition for review.
To the Henaks and other critics, the Smith decision has upended that long-standing distinction. Writing the majority opinion in that case, Chief Justice Pat Roggensack explained that the court had declined to discuss some of Smith’s arguments because they were raised neither in the state’s petition for review or Smith’s response.
Suddenly, the rules that had once applied only to petitioners seemed to have been extended to respondents, Robert Henak said.
Sulla, which was released last month, cited similar reasons for excluding arguments alleging ineffective assistance of counsel and judicial bias.
Adding to the confusion arising from Sulla and Smith, the majority in both cited the previous case of Jankee v. Clark County as backing up their decision to not take up certain issues presented by the respondents. The suitableness of that case as a precedent has been questioned, though.
Rather than a respondent, Jankee involved a petitioner who argued an issue not raised in a petition for review. Neither the Supreme Court’s decision in Smith nor Sulla discusses why Jankee would apply.
“The real question with Sulla and Smith is whether they intend to change the law or whether these are just outliers where they have misinterpreted the law,” Robert Henak said. “Generally, when you want to change the law, you give an explanation of why. It’s hard to tell if they are changing something or confused.”
Tom Shriner, a Milwaukee civil appellate lawyer, said the court has never had clearly spelled-out procedures in its statutes.
“The problem is that there are currently rules on this that are frankly inconsistent,” he said. “It’s not like court is not following the rules. It is, but it is running counter to others.”
Shriner is not alone. Many of his colleagues agree that the rules, contained in Wis. Stat. 809.62, could be made more straightforward.
Lisa Lawless, a Milwaukee lawyer for Whyte Hirschboeck Dudek who appears frequently before the court in civil cases, said one glaring omission is of instructions regarding what happens if attorneys don’t file a response to a petition for review. Similarly unclear is whether arguments made in the Court of Appeals can still be argued if they were not in a petition for review or response.
Perhaps the biggest source of confusion, said Lawless, the Henaks and Shriner, is noticeable only when lawyers try to read different provisions in the rules together.
One provision, for instance, lays out a list of items to have in responses to a petition for review, yet it does not appear to make inclusion mandatory. Rather than saying that attorneys “must” add those items, it merely says they “may.”
Yet, a subsequent provision states that the parties may not argue issues not laid out in the petition for review or cross-petition. A literal reading of that provision would seem to point to a direct contradiction of the previous one.
“It’s also at odds with commonsense because it prevents respondents from ever raising issues unless you are trying to change the result below,” said Robert Henak.
The court noted the conflicting provisions in a footnote to a civil case decided in 2012. The justices then read the rules in a way that was favorable to the respondent and allowed an argument to be introduced even though it couldn’t be found in the response to the petition for review.
Noticing the discrepancy, then-Chief Justice Shirley Abrahamson suggested that the Judicial Council and the State Bar of Wisconsin or another interested party consider whether a rule change is needed. So far, though, no one has presented the court with a formal proposal.
The confusion could also be a result of the court’s relatively short history of serving a discretionary court. Unlike the U.S. Supreme Court, the Wisconsin Supreme Court has had discretionary power to review cases only since 1978. Before that, its charge was to review every decision handed down by the court of appeals.
“What we’ve committed to in this state and most states is that we just live with the fact that the court of appeals sometimes makes a mistake and then, for one reason or another, it’s not important for the Supreme Court to resolve it,” Shriner said. “There is error in any system.”
Shriner said the U.S. Supreme Court, through its long history of being a discretionary court, is firm about not letting parties argue issues that were not properly raised. The Wisconsin Supreme Court, in contrast, simply hasn’t had enough practice, he said.
“What you’ve got is a situation that comes out of the tradition of mandatory appeals up until 38 years ago and a general reluctance, I will say, on part of the court sometimes to say, ‘We didn’t grant review on that issue,’” he said.
Unless overturned by the justices, the side rulings in Sulla and Smith will continue to be binding. And because those rulings affect procedure, they apply to both criminal and civil appeals.
Because civil lawyers don’t often file responses, they may think little of the apparent change. But they still have reason to be cautious.
Lawless’ advice to appellate attorneys is to read the rules carefully — and in their entirety.
“Current case law brings to the forefront that if you’re preparing a response to a petition for review, you need to consider all the subsections,” Lawless said. “And if there are additional issues, it would be a good idea to list them so you can’t have been said to have waived them or abandoned them.”
Another cause of concern, Ellen Henak said, is that Sulla and Smith appear to rob attorneys of some of their control over a case. She advised lawyers to now make sure that they lay out in their responses to petitions for review any arguments they plan to bring up before the Supreme Court.
For attorneys who were in the midst of a case when the rules changed, Robert Henak said, the only option left is to make a motion for reconsideration. Anyone who does that should make it a point to argue that the rules have changed, he said.
To ensure clients aren’t denied their constitutional right to appeal, it may no longer be enough to ask the Supreme Court to affirm an appellate decision. That’s particularly true for lawyers who plan to argue issues that were in fact not ever reached by the court of appeals.
Although the rules require that such cases be remanded, the Supreme Court does not always do so.
“It may require a strategic decision because if you’re pretty sure the court is going to consider those issues underneath, you may not want to be suggesting to them that they shouldn’t,” Ellen Henak said. “On the other hand, if you have a really good gut that one of them is good, and they’re not going to consider it, you may want to remind them that if they don’t deal with all of the issues, they need to remand.”
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