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Interlocutory-Appeal Petition – Reviewability

Estate of Robert C. Parker v. Beverly Enterprises, Inc., 2010 WI 71

The supreme court is empowered to review denial of a petition for leave to appeal non-final order by the court of appeals.

¶45 The language of our case law is strong. We have stated that “[w]here the court of appeals denies permission to appeal from an order conceded by the parties to be nonfinal, no review by this court is permitted.” Aparacor, 97 Wis. 2d at 403.

¶46 Yet, these cases do not indicate that this court lacks jurisdiction to review the court of appeals’ order. Nothing in the Wisconsin Constitution or the Wisconsin statutes indicates that this court has no jurisdiction over the case. To the contrary, the Wisconsin Constitution provides that we have “appellate jurisdiction over all courts” and we “may review judgments and orders of the court of appeals.”

¶47 Rather than a matter of jurisdiction, our refusal to review the court of appeals’ denial of a permissive appeal is a matter of practice, based on judicial administration and respect for the court of appeals’ exercise of discretion. “It is well settled that petitions seeking review of a court of appeals’ denial of leave to appeal are generally not permitted.” Engelhaupt v. United Transp. Union, No. 2007AP18-LV, unpublished slip op., ¶5 (Wis. June 10, 2008). As we explained in Aparacor, “[a] contrary practice would divest the court of appeals of the discretion entrusted to it by sec. 808.03(2).” 97 Wis. 2d at 404.

“No review by this court is permitted.” That language is not overruled, modified or withdrawn. It is merely described without disapprobation as “strong.” In effect, it is now explained: the reason review isn’t “permitted” isn’t because of lack of jurisdiction but for some other reason. (Unstated reasons, to be sure, but not hard to fathom: “piecemeal” appeals are disfavored, etc.) Previously, we refused to allow review on jurisdictional grounds; now, we refuse review as a matter of sound practice. After your petition-for-leave is denied you have the opportunity for additional rebuff, albeit at a higher level.

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