Vol. 82, No. 2, February 2009
For many years, various proposals and counterproposals have been proffered to clarify what must be contained in a petition for review in the Wisconsin Supreme Court, what must be included in the response to the petition, and when a cross-petition is required. Most recently, responding to a request from the supreme court, the Wisconsin Judicial Council filed Rule Change Petition 04-08 asking the court to amend the Rules of Appellate Procedure in several significant ways. The supreme court granted the petition on July 30, 2008,1 and the revised rules took effect on Jan. 1, 2009.
Who May Petition or Cross-Petition
When is a decision adverse? Rule 809.62(1) and (7) previously provided that a party may petition for review or cross-review from an “adverse decision” of the court of appeals. In Neely v. State,2 the supreme court held that, in determining whether a decision is adverse, one looks “to the result (or disposition or mandate) reached by the court of appeals in the case.” Therefore, the supreme court concluded, “a party to whom the result is favorable may not petition for review of the decision simply because that party disagrees with the rationale expressed in the opinion.”3 In State v. Castillo,4 the supreme court cited to Neely, but confusion about the court’s meaning resulted when the supreme court held that a party who had obtained relief in the court of appeals could not seek supreme court review of other issues the court of appeals failed to address, even though the other issues would have resulted in different relief if resolved favorably to the petitioner.
The revised rule 809.62 expressly defines adverse decision to mean “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.”5 It “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.”6 As explained in the Judicial Council Committee Comment, the definition in rule 809.62(1g) “codifies the holding in Neely v. State, [citation omitted] to the effect that a party cannot seek review of a favorable result merely because of disagreement with the court of appeals’ rationale. At the same time, rule 809.62(lg) underscores the fact that a court of appeals decision that is generally favorable to a party remains adverse to that party to the extent that it does not grant the party all the relief requested, i.e., the full relief or the preferred form of relief sought by the party.” Thus, the Comment states, a criminal defendant could petition for review from the court of appeals’ failure to grant a new trial, even when it grants resentencing, or a civil appellant could seek review of a failure to grant a new trial on liability, even if the court of appeals did order a reassessment of damages.
When is a petition for cross-review required? A distinct yet related problem has caused confusion about when a cross-petition for review may or must be filed. In In the Interest of Jamie L.,7 the supreme court cited the “general rule” that a party who prevails in the court of appeals need not cross-petition to defend a judgment in the supreme court on any ground properly raised below.8 By contrast, in State v. Scheidell,9 the supreme court initially refused to address an issue that had been raised and decided in the court of appeals because the defendant (the prevailing party in the court of appeals) failed to challenge the decision by cross-petition.
New rule 809.62(3m) resolves the tension among Jamie L., Scheidell, and other cases, by clarifying that 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.”10 Nor is a cross-petition “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 that might be awarded to the petitioner.”11 As noted below, however, these alternative grounds may be called to the supreme court’s attention in a response to the petition, and the Judicial Council Committee Comment advises a respondent to do so or face the possibility of waiver.
Amended rule 809.62(3m)(a) replaces the permissive may with the mandatory shall to clarify and emphasize that a petition for cross-review must be filed if the respondent seeks to reverse, vacate, or modify an adverse decision of the court of appeals.
Contents of Petition and Response
To give the supreme court and the parties more information about the precise issues to be presented, the new rules impose additional content requirements for petitions. Amended rule 809.62(2)(a) requires that the petition contain a statement of all issues the petitioner seeks to have reviewed, including “any issues the petitioner seeks to have reviewed that were not decided by the court of appeals.” The rule also states that “the statement of an issue will be deemed to comprise every subsidiary issue as determined by the court” and allows the court to remand any matter to the court of appeals.12
The most significant change for respondents is the suggested content of the response to a petition for review. The current rule imposes no requirements other than timing: “Except as provided in s. 809.32(4), an opposing party may file a response to the petition within 14 days after the service of the petition.” The new rule 809.62(3) continues:
“If filed, the 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 issue in the petition.
(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.
(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.
(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.”
The goal of the amendment, according to the comment to rule 809.62(3), is to advise respondents to apprise the supreme court, in the response to a petition for review, of any issue the supreme court may have to decide if it grants review of the issue(s) identified in the petition. The comment continues:
“Rule 809.62(3)(d) and (e) are intended to facilitate the supreme court’s assessment of the issues presented for review, not to change current law regarding the application of waiver principles to a respondent. See State v. Holt, 128 Wis. 2d 110, 125, 382 N.W.2d 679 (Ct. App. 1985) (An appellate court may sustain a lower court’s holding on a theory or on reasoning not presented to the lower court.).”
Implicit in these amendments, although not expressly stated as in the federal rule, U.S. Sup. Ct. Rule 15.2, is the understanding that a respondent may be deemed to have waived issues or defects that do not go to jurisdiction if they are not called to the attention of the supreme court in a response to the petition. The supreme court retains its inherent authority to disregard any waiver and address the merits of an unpreserved argument or to engage in discretionary review under Wis. Stat. sections 751.06 or 752.35.13 The possible invocation of waiver for failure to raise such alleged defects in the response will encourage the respondent to inform the supreme court of such defects before the supreme court decides whether to expend scarce judicial resources on the case.14
The supreme court order makes clear that the Judicial Council Committee Comments are not adopted, but they “may be consulted for guidance in interpreting and applying Wis. Stat. §…809.62.”15
The revised rules also contain provisions to implement the new procedures, including 1) new rule 809.62(4m), which permits a combined response and petition for cross-review when a party elects both to respond to the petition for review and submit a petition for cross-review; 2) revised rule 809.62(6), which requires the supreme court to remand any issue that was both not considered by the supreme court because it limited the issues on review and not decided by the court of appeals, unless the issue has become moot or would have no effect; and 3) adding headings to some subdivisions to help attorneys and parties locate the various rules.
In addition, revised rules 809.107(2)(bm) and 809.30(2)(b) state that a prematurely filed notice of intent to pursue postconviction or postdisposition relief (filed before sentencing or final adjudication) shall be treated as filed after, and on the date of, sentencing or final adjudication, and is therefore timely.
The petition and order are available on the court’s Web site: