State v. Kevin Brown, 2006 WI App 41
For Brown: Richard D. Martin, SPD, Milwaukee Appellate
¶10 We first examine the trial court’s reliance on the earlier order and its determination that it was “the law of the case.” Citing Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989), Brown argues:
The law of the case doctrine is inapplicable. It is a “longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.”
We agree. There is no “law of the case” to this legal dispute.
Law of the case doesn’t quite bind an appellate court in a subsequent appeal in the case. Proceedings in the trial court on remand, though, may be subject to different considerations, as illustrated by People v. Dutra, 52 Cal.Rptr.3d 528 (Cal App 2006) (trial court remained subject to compliance with terms of remand, despite intervening caselaw):
The trial court was bound not by law of the case but by the terms of our remittitur. A trial court may not disobey a remittitur, as that would amount to overruling the appellate court’s decision, thereby violating a basic legal principle:
“Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The term of the remittitur should have been obeyed by the trial court.
It also should be kept in mind that law of the case applies after all to principles of “law,” so that at least in some instances where discretion is in play the trial court may revisit an earlier ruling notwithstanding its affirmance on prior appeal, State v. Wurtz, 141 Wis.2d 795, 800, 416 N.W.2d 623 (Ct.App. 1987) (“However, when an appellate court affirms a discretionary ruling, its decision does not reflect the law of the case unless a question of law is resolved. … We hold that the subsequent trial court on remand is not limited to the discretionary decisions made by the original court, but is bound only to apply the law determined by the appellate court in reaching a reasoned conclusion.”)
General principles of law of the case in: State v. Paul J. Stuart, 2005 WI 47, ¶3 n.2; State v. Richard A. Moeck, 2004 WI App 47 ¶¶20-21, , affirmed, 2005 WI 57, ¶¶17-31; State v. Gregg A. Pfaff, 2004 WI App 31, ¶¶16-17