May 3, 2023 – Here's a scenario: Your client's case didn't go as planned – and you will file an appeal. But can the lower court's decision be stayed pending your appeal?
To figure out your answer, consider the resources that can help.
The usual test for granting a stay pending appeal is stated in
Leggett v. Leggett.1 As outlined in
Appellate Practice and Procedure in Wisconsin from State Bar of Wisconsin PINNACLE®, the motion should make:
a strong showing that the moving party is likely to succeed on the merits of the appeal;
a showing that, unless a stay is granted, the moving party will suffer irreparable injury;
a showing that no substantial harm will come to other interested parties; and
a showing that a stay will do no harm to the public interest.2
In the 2022-23 supplement to
Appellate Practice and Procedure, you'll see that "These four factors are interrelated: more of one may excuse less of another, but the movant must always demonstrate more than a mere possibility of success on the merits – see
Gudenschwager, 191 Wis. 2d at 441."3
This standard, when applied to grants of a stay of an injunction pending appeal, was clarified in 2022. In
Waity v. LeMahieu (2022 WI 6, 400 Wis. 2d 356, 969 N.W.2d 263), the Wisconsin Supreme Court set forth considerations for evaluating one factor in that standard: whether the moving party is likely to succeed on appeal.
As explained in the 2022-23 Supplement,
[P]articularly in cases presenting novel issues, the circuit court should consider not only its own view of the likelihood of success on appeal, but also the standard of review and 'how other reasonable jurists' might have considered the relevant law and whether they might have come to a different conclusion.'
See Waity v. LeMahieu,
2022 WI 6, ¶ 53,
400 Wis. 2d 356,
969 N.W.2d 263.
analysis for WisBar Court Review, State Bar Legal Writer Jeff M. Brown writes that in
Waity, Chief Justice Annette Ziegler explained, writing for the majority opinion, that "the circuit court also misapplied the four-factor test for analyzing petitioners' request for a stay pending appeal," and that the "circuit court's consideration of the second factor – whether the movant shows that a stay is necessary to avoid irreparable injury – was also flawed."4
Justice Rebecca Dallet, dissenting, wrote:
I also disagree with the majority's novel application of the law regarding stays pending appeal. It reduces what has traditionally been a four-factor balancing test to two questions: (1) is the issue being appealed subject to de novo review?; and (2) would the court of appeals or this court likely grant a stay? In doing so, the majority undermines circuit courts' discretion to weigh the equities of each case while providing no guidance for how to implement its unprecedented approach.5
State Bar Resources to Stay Current in Appellate Practice in Wisconsin
Waity decision and its dissent demonstrate the ever-evolving standards for appellate review and practice – and highlight the need for practitioners to stay current.
The State Bar offers these resources to help you stay current:
Keep up to date with
Appellate Practice and Procedure in Wisconsin from State Bar of Wisconsin PINNACLE®, which is regularly supplemented by Wisconsin lawyers knowledgeable in the area of appellate law.
Stay current on citations and learn about the extensive amendments to the rules of appellate procedure that took effect July 1, 2021, in
Wisconsin Rules of Appellate Procedure and Related Supreme Court Rules 2023, also from PINNACLE. This 2023 edition is current through the 2021–22 Wisconsin Statutes, as affected by Wisconsin Supreme Court orders through March 15, 2023, and also has an updated list of online resources relating to e-filing in the Wisconsin appellate courts.
check this link to WisBar Marketplace to see the current listings of CLE programs and publications on appellate practice.
Join the State Bar
Appellate Practice Section for access to the section's events and elist – allowing a ready forum for questions by lawyers practicing in this area of law, and watch for the latest articles in the section's blog.
Subscribe to the State Bar's
CaseLaw Express service: This weekly update of Wisconsin Supreme Court and Court of Appeals decisions is delivered to your email every Monday and is a benefit of State Bar membership.
Keep an eye on
Wisconsin Legal News on the WisBar home page and the
WisBar.org Blogs & Podcast page for ongoing case analyses from State Bar Legal Writer Jeff M. Brown published on the
WisBar Court Review blog.
Don't miss the Supreme Court and Court of Appeals Digests published monthly in
Wisconsin Lawyer magazine,
such as this one from the April 2023 issue.
Regularly use this link to the search-by-topic page on WisBar.org for
all appellate practice articles in the State Bar's various publications. This search will also include articles from the Appellate Practice Series in
Wisconsin Lawyer magazine and
InsideTrack on WisBar.org, such as "The Art of Advancing Wisconsin Constitutional Claims," by Caleb Gerbitz, in the March 2023 issue of
Look for updates in the Court and Official Notices sections of
InsideTrack, published on the first and third Wednesdays each month.
What other resources do you use? Let us know.
Appellate Practice and Procedure in Wisconsin
Appellate Practice and Procedure in Wisconsin from State Bar of Wisconsin PINNACLE® is the standard reference on appellate practice in both the Wisconsin Supreme Court and the Wisconsin Court of Appeals. It is available
in print, or through
Books Unbound. It is in its ninth edition and is supplemented through 2022-23.
The book's 28 chapters provide basic information on appellate procedures, as well as sophisticated commentary on expedited appeals, briefing, oral argument, one-judge appeals, and other important topics. See the Table of Contents for the full list of topics contained in this key resource for appellate practice.
Several appendices provide additional resources, including:
A "Standards of Appellate Review" outline, prepared by the Hon. Thomas Hruz of the Wisconsin Court of Appeals, District III.
Numerous appellate court forms, prepared by the Clerk of the Wisconsin Supreme Court and Court of Appeals.
The full text of the Wisconsin Rules of Appellate Procedure.
Both the print and Books UnBound versions include a complete set of fillable, unannotated forms via download.
What is Books Unbound?
Books UnBound® is the exclusive online digital resource from State Bar of Wisconsin PINNACLE® Books. Since 2010, many of the "brown binders" and other treatises that lawyers have relied on for decades have been available in a digital format, which was recently upgraded through a partnership with Lexum, a legal software company.
"It's faster with a more modern look and feel, includes a more robust search function with Boolean and natural search options, and gives users one-click access to case law through Fastcase and primary law on official websites," said Carol Chapman, publications manager for the State Bar of Wisconsin.
"It also provides an expanded ability to create and search your notes, including the ability to embed URL links, images, and other helpful information directly in the notes and to print your notes with both the highlighted book text and your user-added comments.
1Leggett v. Leggett, 134 Wis. 2d 384, 385,
396 N.W.2d 787 (Ct. App. 1986).
2 See Chapter 14.2, Authority to Grant Relief Pending Appeal, in Appellate Practice and Procedure, State Bar of Wisconsin PINNACLE.
3 See Supplement Chapter 14: Relief Pending Appeal – Wis. Stat. §§ 809.12 and 808.07, in
Appellate Practice and Procedure, State Bar of Wisconsin PINNACLE.
4 See the full case analysis by State Bar Legal Writer Jeff M. Brown in "In 4-3 Decision, Wisconsin Supreme Court Upholds Legislative Contracts With Redistricting Lawyers,"
WisBar Court Review, Feb. 1, 2022.
5 Waity v. LeMahieu, 2022 WI 6, ¶ 70 (Dallet, J., dissenting).