Category: Wisconsin Supreme Court

How a Case Gets to the Wisconsin Supreme Court

Posted by Chelsey Dahm-Bradley - May 27, 2015 - Appeals, Civil Appeals, Criminal Appeals, Practice, Wisconsin Supreme Court

This article was authored by our managing attorney Kimberly Alderman-Penix and recently published in the Bi-Weekly Newsletter of the State Bar of Wisconsin. To read the full article including endnotes, click here.

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. 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.”

A petition for review must be filed within 30 days of the adverse decision in the court of appeals. 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. 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. 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. It must be filed no later than 14 days following the filing of the respondent’s brief. The opposing party may file a response to the petition to bypass within 14 days after the service of the petition.

The filing of the petition for bypass stays proceedings in the court of appeals, preventing that court from taking under submission the appeal. 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.

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. 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.

Original Jurisdiction

Finally, a party may move to commence an original action in front of the supreme court under original jurisdiction. “The concept of original jurisdiction allows cases involving matters of great public importance to be commenced in the supreme court in the first instance.”

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.”

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.”

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.

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.

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.

What is Original Jurisdiction?

Posted by Chelsey Dahm-Bradley - March 11, 2015 - Appeals, Civil Appeals, Criminal Appeals, Uncategorized, Wisconsin Supreme Court

Under normal circumstances, the pathway to a supreme court involves stops at a trial level court, and then an appellate level court. Because supreme court review is discretionary, many cases travel through the trial and appellate level courts, only to never achieve supreme court review.

In a very limited number of cases, however, an action may commence immediately in the supreme court. The ability of a state or federal supreme court to hear a case without the case moving through the trial or appellate level courts is through original jurisdiction.

In respect to the United States Supreme Court, original jurisdiction is governed by 28 U.S.C. § 1251. Under this statute, the United States Supreme Court has original and exclusive jurisdiction over controversies between two or more States. Additionally, this statute provides the United States Supreme Court with original, nonexclusive jurisdiction over the following types of cases:

(1) Actions in which one of the parties is an ambassador, other public minister, consuls, or vice consul of foreign states;

(2) Actions between the United States and a State;

(3) Actions by a State against the citizens of another State

Original jurisdiction also exists in state supreme courts. In state supreme courts, the procedure for utilizing original jurisdiction is determined by state statute. In Wisconsin, for example, a party who wishes to utilize original jurisdiction must file a motion to commence an original action in front of the Wisconsin Supreme Court. Then, a minimum of four justices must agree to hear the case. Similar to in the United States Supreme Court, the criteria for granting original jurisdiction in the Wisconsin Supreme Court are statutory.

It is important to remember that original jurisdiction is the exception, not the rule. To speak with a knowledgeable attorney about original jurisdiction, or the best way to get your case in front of the supreme court, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

What is a Request for Certification?

Posted by Chelsey Dahm-Bradley - May 14, 2014 - Appeals, Practice, Wisconsin Supreme Court

Business DealSometimes, a case presents a matter of law that would be better answered by the courts of another state or jurisdiction. This often occurs when federal courts are asked to decide an issue that turns on state law. When this occurs, the reviewing court may ask a court within another jurisdiction or state to consider the question.

The Supreme Court of Wisconsin, for example, may answer questions of law certified to it by the United States Supreme Court, a United States Court of Appeals, or the highest appellate court of any state. In order to request that the Supreme Court of Wisconsin answer a question of law, a party must submit a request for certification that includes:

(1)  The questions of law to be answered; and

(2)  A statement of the facts relevant to the questions certified and showing the nature of the controversy in which the questions arose

Upon receiving a request for certification, the Supreme Court of Wisconsin may answer the question of law, however is not required to do so. Importantly, only a court (not an independent litigant), may file a request for certification.

To speak with a knowledgeable attorney about your case, contact the Alderman law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).

Wisconsin Supreme Court to Hear Oral Arguments in Act 10 Appeal

Posted by Kimberly Penix - October 24, 2013 - Appeals, Wisconsin Supreme Court

Wisconsin Appeals Lawyer Photo of Act 10 ProtestsThe Wisconsin Supreme Court has announced it will hear oral arguments in Madison Teachers, Inc. v. Scott Walker, 12AP2067, on Monday, November 11, 2013. This case was sent up by certification from the Wisconsin Court of Appeals 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.” The Supreme Court is expected to clarify the effect of the Wisconsin Budget Repair Bill, which will hopefully help resolve other pending Act 10 cases.

Steven Kilpatrick is representing the State-appellant on appeal and Lester Pines is representing the respondents Madison Teachers. You can get up to speed by reading the appellate filings, including a number of amicus briefs, by clicking here.

This summary is from our FREE Wisconsin Appeals E-News for this month. To view the full newsletter, click here.

If you are interested in hiring a qualified Wisconsin appeals lawyer, please contact The Alderman Law Firm today for your free consultation by calling 720-588-3529 (CO) or 608-620-3529 (WI).