State v. Weber

476 N.W.2d 867, 164 Wis. 2d 788, 1991 Wisc. LEXIS 751

Opinions

HEFFERNAN, CHIEF JUSTICE

(on motion for reconsideration). Defendant moves this court for reconsideration of its decision in State v. Weber, 163 Wis. 2d 116, 471 N.W.2d 187 (1991), reversing the court of appeals and reinstating his convictions. Defendant argues that, because this court "decided the case in favor of the state on three grounds which were never the subject of a request for review," the decision violated his rights to notice and adversary counsel on appeal. The defendant asserts that, because the parties were limited by sec. (Rule) 809.62(6), Stats.,¹ to the automobile-search doctrine, the court was likewise constrained.

Defendant confuses legal issues with legal arguments. We write to clarify that the issues before the court are the issues presented in the petition for review² and not discrete arguments that may be made, pro or con, in the disposition of an issue either by counsel or by the court.

Section (Rule) 809.62(2)(a), Stats., provides that a petition for review "must contain a statement of the issues presented for review." The first issue presented in the state's petition for review asked whether the playing of defendant's audio cassette tape "violate[d] the defendant's right under the state and federal constitutions to be free from unreasonable searches and seizures."

While the state and the defendant limited their arguments to the automobile-search doctrine, this did not narrow the fourth amendment constitutional issue before the court. The requirements of sec. (Rule) 809.62(6), Stats., did not limit the parties' arguments to the automobile-search doctrine. The "issue" before the court was the issue set forth in the petition — the constitutionality of the search and seizure — not separate arguments that could be made defending or attacking the constitutionality of the search and seizure. See Federated Rural Electric Ins. Co. v. Kessler, 131 Wis. 2d 189, 215, 388 N.W.2d 553 (1986) (Abrahamson, J., dissenting) (noting relationship between "issues" under sec. (Rule) 809.62(2)(a), Stats., and "issues" under sec. (Rule) 809.62(6)).³

The state's response assumes that this court must have relied on the inventory search arguments stated in the court of appeals' brief when it granted review. We did not. This court exercised its discretion to review the fourth amendment issue stated in the petition. While the court has the discretion to request additional briefing, it did not do so in this case. The petition for review placed the defendant on notice of the issue before the court and, consequently, due process did not require that we request additional briefing. Once an issue is raised in a petition for review, any argument addressing the issue may be asserted in the brief of either party or utilized by this court.

The motion for reconsideration is denied.

I am authorized to state that Justices Day, Callow, Steinmetz, Ceci, and Bablitch join in this opinion.

Footnotes

1

Section (Rule) 809.62(6), Stats., provides:

The supreme court may grant the petition upon such conditions as it considers appropriate, including the filing of additional briefs. If the petition is granted, the petitioner cannot raise or argue issues not set forth in the petition unless ordered otherwise by the supreme court. The supreme court may limit the issue to be considered on review.

2

The terms, "argument" and "issue" are defined as follows in Webster's Third New International Dictionary:

Argument: 2a a reason given for or against a matter under discussion; 3b a coherent series of reasons, statements, or facts intended to support or establish a point.

Issue: 6a a point in question of law or fact; specify: a single material point of law or fact depending in a suit that is affirmed by one side and denied by the other and that is presented for determination at the conclusion of the pleadings.

It should be noted also that the Judicial Council comment to sec. (Rule) 809.62(2), Stats., points out that the petition should state "how the court of appeals decided the issues." It is thus clear that an issue as used in that rule, as the above definition points out, is the point of law that is presented for final determination at the conclusion of the legal proceeding.

3

D. Walther, P. Groves, and M. Heffeman, Appellate Practice and Procedure in Wisconsin (1986), sec. ll:3e(2) Issues and sec. 11.3e(5) Argument, makes clear that "issues" and "arguments" supporting an issue are not identical, e.g. sec. 11.3e(5), p. 11-10, which states: "The argument should be as complete as possible. Present everything that is needed to decide an issue . . .." (Emphasis supplied.)