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Interlocutory Appeal – Issues Limited to Those Presented in Petition for Leave to Appeal

State v. Henry W. Aufderhaar, 2004 WI App 208, PFR filed 11/16/04

For Aufderhaar: J. Paul Neumeier Jr.; Raymond E. Krek


¶1 The major holding here is that when this court accepts an interlocutory appeal, the appellant is limited to briefing only those issues presented in the petition for leave to appeal and may not raise additional issues without the prior consent of the court. ……

¶13. More to the point, however, is the reason behind this limitation. We do not lightly grant a petition for leave to appeal. See, e.g., State ex rel. A.E. v. Circuit Court for Green Lake County, 94 Wis. 2d 98, 102, 288 N.W.2d 125, modified per curiam, 94 Wis. 2d 105a, 292 N.W.2d 114 (1980) (interlocutory appeals undesirable). The general policy of this court is to avoid piecemeal disposal of litigation. See, e.g., id. at 101. Moreover, as Michael S. Heffernan cogently stated in the State Bar CLE book, Appellate Practice and Procedure in Wisconsin, § 9.5 (3d ed. 2003), it is also in recognition of our heavy case load. Heffernan further points out that the policy against granting interlocutory appeals is particularly strong in criminal prosecutions. See id. Delays in that area are “inimical to an effective criminal justice system.” Id. (citing A.E., 94 Wis. 2d at 102).

¶14. Against this backdrop, Wis. Stat. § 808.03(2) details the circumstances where we will grant a petition for leave to appeal a nonfinal order: (1) if the issue or issues will materially advance termination of the litigation or materially clarify further proceedings, (2) will protect the petitioner from irreparable injury, or (3) will clarify an issue of general importance in the administration of justice. As Heffernan explains, implicit in our consideration of each factor is the question of whether the petition shows a substantial likelihood of success on the merits. See Heffernan, supra, at § 9.4. …

¶16. Therefore, we will only grant petitions for leave to appeal where the issue or issues raised in the petition meet one or more of the criteria in Wis. Stat. § 808.03(2). In fact, even if there are several issues raised in the petition, but not all meet the criteria, we may well order that the briefing be limited to only those issues we feel have merit under the statute.

An aside: if you’re going to do any appeals in Wisconsin, the Heffernan treatise is indispensable.)


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