WI Supreme Court discusses stipulated vacatur.

Byline: Tony Anderson

The state Supreme Court continues to look at a proposal designed to keep litigants from bargaining with court decisions. Last week, the court resumed discussions on a proposal to eliminate stipulated reversal and stipulated vacatur.

The Supreme Court "approved in principle" last month a statutory change that would keep parties from making a unified request for the court of appeals or the Supreme Court to reverse or vacate the decision of a lower court. The goal was to keep parties from basing the settlement of a case on an appellate court vacating or reversing a lower court decision.

Since then, Supreme Court staff has been drafting new language for the proposal in an effort to address concerns raised at that time about the court maintaining the right on its own initiative to reverse or vacate lower court decisions. The issue involved a request by the Judicial Council that Section 809.18 of the Wisconsin Statutes be changed to read that, "Requests for stipulated reversal or stipulated vacatur of a lower court decision are not permitted."

Concerns

During the follow up discussion at the Nov. 13 administrative conference, Justice David T. Prosser Jr. continued to express concerns about the proposed change. Regardless of what the parties in a lawsuit request, the appellate court would have the final word on whether to vacate or reverse a lower court decision.

"The essence of the rule presented by the Judicial Council and that we voted on is requests are not permitted," Prosser said. "That was what was so offensive to me."

He noted that the rule would not even permit litigants to "ask a court to exercise its discretion for sound policy reasons or for any other reason."

During an Oct. 22 administrative conference, the justices voted 4-2 in favor of the Judicial Council's proposal. Prosser raised concerns at that time about giving up the court's discretion regarding whether to reverse or vacate a decision.

Bargaining Chip

The majority of the court opposed the notion that litigants would base settlements on an agreement to jointly request the reversal or vacatur of a decision.

During last week's discussion, Justice Diane S. Sykes indicated that the court does not "want the judicial decision to be on the bargaining table."

"What we're seeking to prohibit here is a notice of dismissal that is accompanied by a stipulation of the parties [stating] that, CyWe ask you ... to grant this dismissal motion based upon the stipulation...