Unoriginal Thoughts on Appellate Procedure

Earlier this week, the Wisconsin Supreme Court issued its decision in State ex rel. Ozanne v. Fitzgerald and State ex rel. Huebsch v. Circuit Court for Dane County.  The decision has rightly generated a good bit of commentary about open government, separation of powers, etc.  My goal here is to clarify a very limited but important point of Wisconsin appellate procedure.

The issues in the decision came to the court in two ways: an appeal from a temporary order that had been certified by the Wisconsin Court of Appeals and a petition for a supervisory writ filed by Secretary Huebsch.  The two cases were combined for briefing and oral argument.  The majority’s order denied the certification, granted the petition for a supervisory writ, and then decided the issues contained in the petition for the writ.

In the court’s order, the majority refers to the writ request as a “petition for supervisory/original jurisdiction” (¶ 2) and a “petition for original action” (¶7).  In his concurrence, Justice Prosser refers to the writ request as an “original action” which “satisfies several of the court’s criteria for an original action publici juris” (¶19).

Chief Justice Abrahamson, in her writing, will have none of this (¶¶97-101).  She notes that the majority order “mistakenly asserts” that a “’petition for supervisory/original jurisdiction” was filed by Huebsch “pursuant to Wis. Stat. §§ (Rules) 809.70 and 809.71,” when in fact the Huebsch petition only references 809.71. 

That may be true; in a later brief, the DOJ later suggested the court “recast” Huebsch’s petition as one for an “original action publici juris.”  The Chief Justice goes on to say, “There is nothing ‘original’ or ‘in the first instance’ here. . . . [T]he order and Justice Prosser’s concurrence are blending the separate and distinct concepts of original and appellate jurisdiction.”  She includes a footnote here, FN10, where she writes, “This case is not an original action in any sense of the phrase.”  Lawyer-blogger Illusory Tenant picks up this theme as well, arguing that “supervisory/original jurisdiction” is a “fabrication from whole cloth” unsupported by the statute.

Here I think the Chief Justice and IT are incorrect.  As I read the rules of appellate procedure, there are two types of original actions before the Supreme Court: what might be called “publici juris” original actions, which present a set of facts/questions to any court for the first time, and “supervisory” original actions, which are still original actions, but stem from the actions of a lower court in a separate case on the same facts.  My primary evidence for this position is that the two rules, and only these two rules, are put under the same heading in the statute books ( “ORIGINAL JURISDICTION PROCEDURE IN SUPREME COURT.”  In other words, original actions (.70) and supervisory writs (.71) are both species of the court’s constitutional original jurisdiction.  This is also how Justice Crooks sees it: “Let me be clear: taking this case as an original action [publici juris or supervisory authority] is not outside this court’s power” (language in brackets original) (¶145).

In his blog post, IT emphasizes Wis. Stat. § 809.51, which says, “A person may request the court to exercise its supervisory jurisdiction or its original jurisdiction to issue a prerogative writ over a court and the presiding judge, or other person or body, by filing a petition and supporting memorandum.”  IT notes the operative word “or,” setting supervisory jurisdiction and original jurisdiction as two separate types of jurisdiction.  However, IT fails to note that .51 applies to the Court of Appeals – it comes under the subsection “DISCRETIONARY JURISDICTION PROCEDURE IN COURT OF APPEALS.”  That doesn’t carry forward to .70 and .71, which detail the Supreme Court’s original jurisdiction.

In footnote 38, Justice Prosser writes that “the majority’s order does not give adequate consideration to the distinctions between a petition for a supervisory writ and a petition for an original action.”  I think that could be said of much of the writing in and regarding this case.  Hopefully this post helps to clarify the situation: petitions for original action publici juris under 809.70 and petitions for supervisory writs under 809.71 are both species of the Court’s original jurisdiction.

This Post Has 6 Comments

  1. Ed Fallone


    I don’t recall you being such a committed textualist when you were a member of the student body.

    However, even a pure textualist should be troubled by the fact that Section 809.71 refers to the “supervisory jurisdiction” of the Wisconsin Supreme Court while Section 809.70 refers to the Wisconsin Supreme Court taking “original jurisdiction.”

    Plainly, these are two separate sources of jurisdiction. How can supervisory jurisdiction be a subcomponent of original jurisdiction?

    This point is further underscored by the Judicial Committee Note to Section 809.71, which makes it clear that supervisory jurisdiction is a specialized form of jurisdiction that should only be exercised in limited circumstances. None of the comments in that Note apply to cases of original jurisdiction.

    The point being made at Illusory Tenant is simple. Had a petition for original jurisdiction been filed under Section 809.70, then the requirements of that section would have applied. Among those requirements are 1) the development of a statement of facts by the parties that would allow the Court to consider whether it could proceed to render a decision on the law and 2)the bifurcation of a decision on whether to take original jurisdiction from the subsequent briefing on the merits.

    If the Governor were to petition the Wisconsin Supreme Court to take original jurisdiction (a possibility discussed during oral arguments), then there would have been no impediment to the Court following the proper procedures of Section 809.70. Of course, proceeding in the normal fashion would have missed the Tuesday “deadline.”

    However, by taking up the petition under Section 809.71 and then “transforming” it into a petition for original jurisdiction under Section 809.70, the majority of the Court managed to avoid both the standards applicable to the grant of a supervisory writ (which weren’t met) and the statutory procedures applicable to the exercise of original jurisdiction (which weren’t met).

    A nice trick.

  2. Daniel Suhr

    Hi Professor. Thanks for the comment. I disagree that supervisory is a separate source of jurisdiction for constitutional reasons — Wisconsin Constitution, Article VII delineates two types of jurisdiction for the Supreme Court, “appellate” and “original.” There is no third, different category for “supervisory” — it must be one or the other of the two. Thus, I have argued that “supervisory jurisdiction” is a sub-species of original jurisdiction. My primary evidence for this claim is that 809.70 and .71 are both clumped under the title “Original Jurisdiction Procedure in the Supreme Court.” Moreover, though to a lay man it may seem an appeal, because you are seeking to overturn the decision of a lower court, it is clearly an original action to a lawyer because it is a whole new action — it has its own case caption, number, etc.

  3. Thomas Foley

    Thanks, Prof. Fallone.

    Evidently Mr. Suhr himself failed to note § 809.01(4): “[In this chapter] ‘Court’ means the court of appeals, or if the appeal or other proceeding is in the supreme court, the supreme court.” So clearly § 809.51 does indeed “carry forward” to §§ 809.70 and 809.71, contrary to Mr. Suhr’s rationalizations. Now perhaps Mr. Suhr would be so kind as to withdraw his accusation that I misapplied § 809.51.

  4. Daniel Suhr

    Mr. Foley — I believe my reading of .51 is correct and yours is incorrect. First, while the statute does use the generic term “the court,” that reference is limited by the subchapter’s title, “DISCRETIONARY JURISDICTION PROCEDURE IN COURT OF APPEALS.” Second, when Chapter 809 desires to encompass both the Supreme Court and Court of Appeals, it uses the generic phrase “the appellate court” (see, e.g., .103(2)). Otherwise it clearly distinguishes the Supreme Court and the Court of Appeals — the latter term does not encompass both entities even though the Supreme Court is a “court of appeals” in the small caps sense. Third, the Rules specify when they apply to both the Supreme Court and Court of Appeals (see, e.g., Subchapter VIII). Fouth, the Annotations to .51 make it pretty clear that it only applies to the Court of Appeals. Fifth, if .51 applied to the Supreme Court, as you contend it does, then .70 and .71 would be rendered superfluous.

    That fifth point is what the Supreme Court said in State v. Whitty, 272 N.W.2d 842, 844 (1978): Rule 809.52 permits “the court” to grant temporary relief to someone who has filed a petition under Rule 809.50 or 809.51. Although the court is defined in Rule 809.01(4) as being either the Court of Appeals or Supreme Court depending on where the appeal or proceeding is pending, 2 it is clear from the context of Rule 809.52 that it applies only to the Court of Appeals. … Similarly, Rule 809.51 referred to above, applies in the first instance to the procedure for obtaining supervisory writs in the Court of Appeals. That same procedure is made applicable to the Supreme Court by Rule 809.71. By the instant petition filed in this Court, the defendant has not asked the Court of Appeals for permission to appeal from a nonappealable judgment or order; nor has he sought a supervisory writ. Rather, he is asking the Supreme Court to grant his request for bail pending appeal. Clearly, Rule 809.52 does not apply to the Supreme Court in this situation.

  5. Thomas Foley

    Mr. Suhr, thank you for taking the time. I must say I have always found kibbutzing with you on the internets a source of considerable amusement and I am sincerely grateful for that as well.

    However, please have a look one more time at § 809.71, which refers back to and incorporates by that reference § 809.51. A person seeking a supervisory writ under § 809.71 (e.g., petitioner Mike Huebsch [a.k.a. Scott Walker], who, incidentally, ended up getting something he never sought by dint of the punctuational jurisdiction invented by Justice Gableman) must file “in accordance with s. 809.51.” Thus does “the court” in § 809.51 mean the Supreme Court, in perfect consonance with the wise and premonitory guidance set forth in § 809.01(4).

    So to continue to insist that “the court” in § 809.51 can mean “only” the Court of Appeals is wrong. Again: I am not misapplying § 809.51, but rather reading it in its alternate context, following the direction of § 809.71.

    The only thing in § 809.51 that § 809.71 does not incorporate by reference is, obviously, the former’s language, “or its original jurisdiction,” which is where your superfluity analysis would apply, as the Supreme Court’s original jurisdiction is addressed separately, in § 809.70.

    And these have been my contentions from the outset: that original and supervisory jurisdiction are separate and distinct forms of judicial authority, and that there is no constitutional basis for Justice Gableman’s creation of a source of judicial power by forward slash.

    (Setting amusement aside for a moment, your main post here at the Marquette University Law School faculty blog embodies an unwarranted criticism of my writing and I can only hope that your readers continue on throughout this comments thread for the fuller explication. However, experience teaches me that that is not something upon which I can depend, if you’re picking up what I’m throwing down.)

    By the way, a not dissimilar question of construction arose at the time the Walker administration attempted vainly to claim publication of 2011 Wisconsin Act 10 while publication was temporarily enjoined. A provision might have two different meanings, or two different applications, depending upon how it may be incorporated by reference into other statutory provisions.

    You can read all about that little brouhaha at my own wildly popular blog, illusory tenant, in a post entitled, “Wisconsin statutes, a couple three of them,” of March 26, 2011. Or, if you prefer, Prof. Fallone’s compelling epistle of March 28, at this present location, which covers much of the same ground (as Prof. Fallone was most generous to acknowledge).

  6. Daniel Suhr

    Mr. Foley — Thank you for bringing us back to the core issue, and our core disagreement. My contention from the outset remains that supervisory and original jurisdiction are not two different types of jurisdiction, but rather that supervisory is a subset of original jurisdiction. Hence my belief that the jurisdiction by punctuation (“supervisory/original”) is a correct label for the action at issue, for the reasons delineated in my original post.
    Regarding the statutory language you point to, I think a longer excerpt from the text of .71 is useful: “A person may request the supreme court to exercise its supervisory jurisdiction over a court and the judge presiding therein or other person or body by filing a petition in accordance with s. 809.51.” I would read that to say only that the FORM of the PETITION must be in accordance with .51, i.e., no more than 35 pages, etc. I do not see it as affecting the jurisdictional issue we are debating.

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