Appellate Legislative Update

WDC Journal Edition: Summer 2009
By: Patti J. Kurth, Kasdorf, Lewis & Swietlik, S.C.

Effective November 1, 2009, Assembly Bill 122, which was enacted on June 19, 2009, tolls the time for filing a petition for review when a motion for reconsideration has been timely filed in the court of appeals under Section 809.24 of the Wisconsin Statutes.

Under current law, a petition for Wisconsin Supreme Court review must be filed within 30 days after the date of the court of appeals’ decision, even if a motion for reconsideration of the decision is filed with the court of appeals under § 809.24.

Under the newly enacted § 808.10(2), if a motion for reconsideration is filed in the court of appeals within 20 days after the court's decision, the 30-day time limit for filing the petition for supreme court review is tolled. Section 808.10(2) states as follows:

Tolling Pending Court Of Appeals Reconsideration.

If a motion for reconsideration is filed in the court of appeals under s. 809.24(1) within 20 days after the date of a decision of the court of appeals, the 30-day time period to file the petition for review starts on the date the court of appeals determines the motion for reconsideration by filing an order denying the motion for reconsideration or an amended decision.

Section 809.62, which governs petitions for review, was also modified in part by Assembly Bill 122 and takes into account the new tolling provisions. Currently, § 809.62(1m) requires that a petition for review be filed within 30 days of the court of appeals’ decision. Section 809.62(1m) was repealed and recreated as follows:

General rule; time limits. (a) A party may file with the supreme court a petition for review of an adverse decision of the court of appeals pursuant to s. 808.10.

(b) If a motion for reconsideration has been timely filed in the court of appeal under s. 809.24(1), no party may file a petition for review in the supreme court until after the court of appeals issues an order denying the motion for reconsideration or an amended decision.

(c) If a motion for reconsideration is denied and a petition for review has been filed before the motion for reconsideration was filed, and if the time for filing a response to the petition had not expired when the motion for reconsideration was filed, a response to the petition may be filed within 14 days of the order denying the motion for reconsideration.

(d) If the court of appeals files an amended decision in response to the motion for reconsideration under s. 809.24(1), any party who filed a petition for review prior to the filing of the motion for reconsideration must file with the clerk of the supreme court a notice affirming the pending petition, a notice withdrawing the pending petition, or an amendment to the pending petition within 14 days after the date of the filing of the court of appeals' amended decision.

(e) After the petitioning party files a notice affirming or withdrawing the pending petition or an amendment to the pending petition under par. (d), the responding party must file a response to the notice or amendment within 14 days after service of the notice or amendment. The response may be an affirmation of the responding party's earlier response or a new response.

The new procedures will no longer require a party seeking reconsideration of an adverse decision of the court of appeals to also simultaneously file a petition for supreme court review. This is currently necessary in order to ensure compliance with the jurisdictional 30-day time limit for filing a petition for review in the event that the motion for reconsideration is denied by the court of appeals. Under the new provisions, a party is precluded from filing a petition for review when a timely motion for reconsideration has been filed, and the 30-day time limit for doing so commences after the court of appeals denies the motion.