WI Stat § 752.35 (2021)
2021 Wisconsin Statutes & Annotations|Chapter 752 - Court of appeals.|752.35 - Discretionary reversal.

752.35  Discretionary reversal. In an appeal to the court of appeals, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record and may direct the entry of the proper judgment or remit the case to the trial court for entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.History:  1977 c. 187.In relying solely on affidavits of persons who could have been produced at a postconviction hearing but were not, there was an insufficient basis on which the court of appeals could have exercised its discretion. State v. McConnohie, 113 Wis. 2d 362, 334 N.W.2d 903 (1983).The court of appeals erred as matter of law in granting a new trial. Although a juror incompletely responded to material questions on voir dire, the litigant failed to demonstrate that the juror more probably than not was biased against the litigant. The criteria for discretionary reversal is discussed. State v. Wyss, 124 Wis. 2d 681, 370 N.W.2d 745 (1985).The court of appeals error-correcting function is discussed. State v. Schumacher, 144 Wis. 2d 388, 424 N.W.2d 672 (1988).In reviewing a discretionary reversal by the court of appeals, the supreme court uses the abuse of discretion standard. State v. Johnson, 149 Wis. 2d 418, 439 N.W.2d 122 (1989), confirmed, 153 Wis. 2d 121, 449 N.W.2d 845 (1990).The court's authority under this section is discussed. Vollmer v. Luety, 156 Wis. 2d 1, 456 N.W.2d 797 (1990).Discretionary reversal is not applicable to judicial review of LIRC orders under the Worker's Compensation Act, ch. 102. There is no power to reopen a matter that has been fully determined under the Act. Kwaterski v. LIRC, 158 Wis. 2d 112, 462 N.W.2d 534 (Ct. App. 1990).An appeal of an unsuccessful collateral attack under s. 974.06 does not allow discretionary reversal of an order or judgment that was the subject of a collateral attack. State v. Allen, 159 Wis. 2d 53, 464 N.W.2d 426 (Ct. App. 1990). But see State v. Armstrong, 2005 WI 119, 283 Wis. 2d 639, 700 N.W.2d 98, 01-2789.Reversal on grounds that the real controversy was not fully tried is discussed. State v. Hicks, 202 Wis. 2d 150, 549 N.W.2d 435 (1996), 94-2256. See also State v. Jeffrey A.W., 2010 WI App 29, 323 Wis. 2d 541, 780 N.W.2d 231, 09-0645.This section does not apply to proceedings for judicial review under ch. 227. Habermehl Electric, Inc. v. DOT, 2003 WI App 39, 260 Wis. 2d 466, 659 N.W.2d 463, 02-1573.A reviewing court upholds the findings of fact by a trier of fact unless they are clearly erroneous. The determination of whether a party has met his or her burden is a matter of fact, not law. The reason given by the court of appeals in this case for invoking the power of discretionary reversal was that the defendant had “met his burden," which is going too far for a reviewing court on a question of fact. State v. Kucharski, 2015 WI 64, 363 Wis. 2d 658, 866 N.W.2d 697, 13-0557This section should be used only in an exceptional case, after all other claims have been weighed and determined to be unsuccessful. In exercising discretionary reversal, the court of appeals must engage in an analysis setting forth the reasons that the case may be characterized as exceptional. State v. McKellips, 2016 WI 51, 369 Wis. 2d 437, 881 N.W.2d 258, 14-0827.State v. Wyss: A new appellate standard for granting new trials in the interest of justice. 1987 WLR 171.A Fearless Search for the Truth No Longer: State v. Henley and Its Destructive Impact on New Trials in the Interest of Justice. Mark. 2012 WLR 1367.