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SCOW further explains the test for granting a stay pending appeal

The main issue in Waity v. Lemahieu, 2022 WI 6 (January 27, 2022), involves the legislature’s power to hire lawyers to deal with redistricting issues, but along the way a majority of the court addresses a matter of interest to all appellate and postconviction lawyers: the proper application of the standard for a circuit court to apply in deciding whether to issue a stay pending appeal. While seeking a stay in a criminal case is often a futile endeavor for the defense, what the court says here might be useful next time you consider doing so.

A court considers four factors when reviewing a request to stay an order pending appeal: 1) whether the movant makes a strong showing that it is likely to succeed on the merits of the appeal; 2) whether the movant shows that, unless a stay is granted, it will suffer irreparable injury; 3) whether the movant shows that no substantial harm will come to other interested parties; and 4) whether the movant shows that a stay will do no harm to the public interest. State v. Scott, 2018 WI 74, ¶46, 382 Wis. 2d 476, 914 N.W.2d 141. These factors are not “prerequisites” but “interrelated considerations that must be balanced together.” State v. Gudenschwager, 191 Wis. 2d 431, 440, 529 N.W.2d 225 (1995). In particular, “the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury the plaintiff will suffer absent the stay,” though the moving party must always demonstrate more than “the mere possibility” of success on the merits. Id. at 441.

The circuit court in this case erred in denying a stay by putting too much weight to the correctness of its decision, which involved an issue of law (interpretation of a statute) rather than a discretionary decision (e.g., sentencing, the admission of evidence), and so would be subject to more scrutiny on appeal:

¶52     …. When reviewing a motion for a stay, a circuit court cannot simply input its own judgment on the merits of the case and conclude that a stay is not warranted. The relevant inquiry is whether the movant made a strong showing of success on appeal. Gudenschwager, 191 Wis. 2d at 440. Of course, whenever a party is seeking a stay, there has already been a determination at the trial level adverse to the moving party. If the circuit court were asked to merely repeat and reapply legal conclusions already made, the first factor would rarely if ever side in favor of the movant. As we explained in our …. order [granting the stay the lower courts refused to grant], “very few stays pending appeal would ever be entered because almost no circuit court judge would admit on the record that he [or] she could have reached a wrong interpretation of the law.” ….

¶53     When reviewing the likelihood of success on appeal, circuit courts must consider the standard of review, along with the possibility that appellate courts may reasonably disagree with its legal analysis. For questions of statutory interpretation, as are presented in this case, appellate courts consider the issues de novo. …. Here, the circuit court relied on its own interpretation of statutes … which neither this court nor the court of appeals had previously interpreted, to conclude that an appeal would be meritless. Instead, the circuit court should have considered how other reasonable jurists on appeal may have interpreted the relevant law and whether they may have come to a different conclusion….

The majority goes on to address the harms to the legislature resulting from denial of a stay (namely, the ability to retain counsel of choice for complex, time sensitive litigation about redistricting), and the harms, if any, to other parties and the public interest. (¶¶54-60).

A concurring justice (Hagedorn) sums up the discussion this way: “…the message to courts moving forward is that the likelihood of success on appeal is a flexible, sliding-scale factor to be balanced agisint the relevant harms.” (¶68). A dissent (Dallett, with A.W. Bradley and Karofsky) says the majority’s decision on the stay “unsettles what was a well-established, long-standing test for stays, applying the Gudenschwager factors in a novel and unworkable way.” (¶¶84-99).

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