This article is published courtesy of the October 2009 State Bar De Novo newsletter, published by the Appellate Practice Section.
On June 19, 2009, the Wisconsin State Legislature enacted amendments to the Rules of Appellate Procedure that change the effect of the filing of a Motion for Reconsideration in the Court of Appeals on the deadline for the filing of a Petition for Review in the Supreme Court. This change (along with several unrelated rules amendments) is the result of a long effort by the Appellate Practice Committee of the Wisconsin Judicial Council. The effective date of the Act (2009 Wisconsin Act 25) is Nov. 1, 2009. Read the full text of the Act.
Under the current rules, a petition for review must be filed in the Supreme Court within 30 days of the date of the decision of the Court of Appeals, whether or not a motion for reconsideration is filed in the Court of Appeals. Under Wis. Stat. § 809.24, the motion for reconsideration must be filed within 20 days of the Court of Appeals decision. Thus, a motion for reconsideration is often still pending in the Court of Appeals when the petition for review is due to be filed in the Supreme Court, and because there are no extensions of time for the filing of a petition for review, attorneys and pro se litigants must prepare and file a petition for review without knowing the outcome of the motion for reconsideration. When the rules require the filing of potentially unnecessary pleadings, it is a waste of resources for attorneys, litigants, and the courts.
The new rules remedy this inefficiency by tolling the deadline for the petition for review pending the decision of the Court of Appeals on the motion for reconsideration. Wis. Stat. § 808.10(2). If a motion for reconsideration is timely filed, the 30-day time period for the filing of the petition for review begins on the date the Court of Appeals determines the motion for reconsideration by filing an order denying the motion for reconsideration or an amended decision.
The new rules also provide explicitly that if a motion for reconsideration has been timely filed in the Court of Appeals, no party may file a petition for review in the Supreme Court until after the Court of Appeals issues an order denying the motion for reconsideration or an amended decision. Wis. Stat. § 809.62(1m)(b). However, if a petition for review is filed and then a motion for reconsideration is filed, if the time for filing a response to the petition had not expired when the motion for reconsideration was filed, a response to the petition may be filed within 14 days of the order denying the motion for reconsideration. Wis. Stat. § 809.62(1m)(c). If the Court of Appeals grants the motion for reconsideration and files an amended decision, a party that filed a petition for review prior to the motion for reconsideration being filed must file a notice indicating either that the pending petition is affirmed (that is, remains pertinent), is withdrawn, or is amended (in which case an amended petition is filed) within 14 days. Wis. Stat. § 809.62(1m)(d). The responding party must file a response to the notice or amendment within 14 days. If the responding party had already filed a response to the petition, the response may be an affirmation of the earlier response. Wis. Stat. § 809.62(1m)(e).
David R. Schanker, Clerk, Wisconsin Supreme Court/Court of Appeals.
This article is published courtesy of the October 2009 State Bar Appellate Practice Section newsletter. The State Bar offers its members the opportunity to network with other lawyers who share a common interest through its 26 sections. Section membership includes access to newsletters, email lists to facilitate information sharing, and other resources.
