May 20, 2015 – The majority of requests for review to the Wisconsin Supreme Court take the form of a petition for review, filed shortly after the final disposition of a case in the Wisconsin Court of Appeals. However, there are three additional, less used vehicles through which the supreme court may exercise jurisdiction over a case: 1) petition for bypass, 2) certification by the court of appeals, and 3) original jurisdiction. This article provides a primer on the four paths cases may take to get to the supreme court, each of which is available in limited situations.
Petitions for Review
The most common way for a case to get before the supreme court is through a petition for review following a loss in the court of appeals.1 Petitions for review ask the supreme court to exercise its discretionary review on a particular case.
Importantly, the supreme court will not take a case simply because the matter was incorrectly decided or justice was not done in the lower courts. Rather, the supreme court will consider whether:
“(a) A real and significant question of federal or state constitutional law is presented.
(b) The petition for review demonstrates a need for the supreme court to consider establishing, implementing or changing a policy within its authority.
(c) A decision by the supreme court will help develop, clarify or harmonize the law, and
a. The case calls for the application of a new doctrine rather than merely the application of well-settled principles to the factual situation; or
b. The question presented is a novel one, the resolution of which will have statewide impact; or
c. The question presented is not factual in nature but rather is a question of law of the type that is likely to recur unless resolved by the supreme court.
(d) The court of appeals’ decision is in conflict with controlling opinions of the United States Supreme Court or the supreme court or other court of appeals’ decisions.
(e) The court of appeals’ decision is in accord with opinions of the supreme court or the court of appeals but due to the passage of time or changing circumstances, such opinions are ripe for reexamination.”2
A petition for review must be filed within 30 days of the adverse decision in the court of appeals.3 This deadline cannot be extended. If the opposing party wishes to respond to the petition for review, it has 14 days (plus three days for mailing) from the date that the petition was filed to do so.4 The time it takes for the supreme court to issue a decision granting or denying review will vary depending on the supreme court’s schedule.
Petition for Bypass
In limited circumstances, a party may petition the supreme court for direct review of a matter already briefed in, but not yet decided by, the court of appeals.5
A matter is appropriate for bypass when it meets one or more of the criteria for review outlined in Wis. Stat. section 809.62, as reproduced above. Additionally, the supreme court must determine that the issue is one it would have selected for review regardless of the outcome in the court of appeals. Finally, petitions for bypass may be granted when the supreme court determines that there is a need to hasten the appellate process.
A petition for bypass must contain a statement of reasons for bypassing the court of appeals.6 It must be filed no later than 14 days following the filing of the respondent’s brief.7 The opposing party may file a response to the petition to bypass within 14 days after the service of the petition.8
The filing of the petition for bypass stays proceedings in the court of appeals, preventing that court from taking under submission the appeal.9 If the petition is denied, the original appeal to the court of appeals will continue as though the petition to bypass had never been filed.10
Certification by the Court of Appeals
If the court of appeals believes that a particular case presents a question of law that belongs before the supreme court, it may certify an appeal to the supreme court.11 Certification means the court of appeals, instead of issuing its own ruling, asks the supreme court to take the case directly because the case presents a question of law that belongs before the highest state court.
A recent example of certification by the court of appeals occurred in Madison Teachers Inc. v. Scott Walker (appeal no. 2012-AP-2067). In this case, the court of appeals certified an appeal to the supreme court “because of its sweeping statewide effect on public employers, public employees, and taxpayers and because of the need to clarify and develop law relating to associational rights and the home-rule authority of municipalities.”
A certification by the court of appeals will be considered using the same criteria as a petition for review or bypass. Importantly, bypass will be attractive to the supreme court when there is a demonstrated need to quicken the appellate process, existing precedent on the issue is scant or conflicting, or the justices determine they will want to consider the issue, regardless of how the court of appeals ultimately rules. For the supreme court to consider an issue on certification, at least four justices must agree to hear it.
Finally, a party may move to commence an original action in front of the supreme court under original jurisdiction.12 “The concept of original jurisdiction allows cases involving matters of great public importance to be commenced in the supreme court in the first instance.”13
Importantly, the supreme court is not a fact-finding body. Therefore, it will not take cases that involve disputes of fact. Rather, all parties to the action must agree on the facts that the court will consider.
A petition for the supreme court to take jurisdiction of an original action must include:
“(a) A statement of the issues presented by the controversy.
(b) A statement of the facts necessary to an understanding of the issues.
(c) A statement of the relief sought.
(d) A statement of the reasons why the court should take jurisdiction.”14
A recent example of an action for original jurisdiction in the supreme court occurred in State ex rel. Ismael R. Ozanne v. Fitzgerald. In this case, the supreme court exercised original jurisdiction in order to determine whether the Wisconsin Legislature acted unconstitutionally when it enacted 2011 Wisconsin Act 10. The court granted the petition for original jurisdiction after determining that a lower court “usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature.”15
To exercise original jurisdiction, at least four justices must agree to hear the case. In contrast to petitions for bypass and certifications, the criteria for granting original jurisdiction are not statutory, and are less clearly defined.16
If the supreme court does not deny the petition outright, it may order the respondent to file a responsive brief. The response will be due within 14 days of service of the order (rather than service of the petition). Additionally, the court may require an oral argument on the issue of taking original jurisdiction. Should the court decide to take original jurisdiction, it will establish a briefing schedule, and may or may not request oral argument on the issue to be decided.17
Considerations for Appellate Attorneys
The Wisconsin Supreme Court hears very few cases regardless of which of these jurisdictional paths is pursued. The cases it does hear tend to be those that trigger its institutional responsibilities, rather than those in which justice may not have been done in a lower court. With a working knowledge of the four ways by which a case can come before this state’s highest court, an appellate attorney can quickly identify cases appropriate for high court review and more effectively advise clients on appellate options.
1 Wis. Stat. § 809.62.
2 Wis. Stat. § 809.62(1r).
3 Wis. Stat. § 808.10.
4 Wis. Stat. § 809.62(3); Wis. Stat. § 801.15(5).
5 Wis. Stat. § 809.60.
6 Wis. Stat. § 809.60(1).
7 Wis. Stat. § 809.60.
8 Wis. Stat. § 809.60(2).
9 Wis. Stat. § 809.60(3).
10 Wis. Stat. § 809.60(5).
11 Wis. Stat. § 808.05(2).
12 Wis. Stat. § 809.70(1).
13 State ex rel Ismael R. Ozanne v. Fitzgerald, 334 Wis. 2d 70, 798 N.W.2d 436 (2011) (citing Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin, § 25.1 (5th ed. 2011)).
15 Id. at ¶ 7.
16 See, e.g., Petition of Heil, 230 Wis. 428 (1939).
17 Wis. Stat. § 809.70(2).