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.