State v. Weber 164 Wis. 2d 788, 476 N.W.2d 867

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 *789of 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 *790the 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 *791additional 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.

SHIRLEY S. ABRAHAMSON, J.

(dissenting on denial of motion for reconsideration). The defendant's counsel (an assistant public defender) and the state's counsel (an assistant attorney general), both of whom frequently represent litigants in this court, agree that the court decided this case on issues not raised in the petition for review or briefs, and both ask for clarification of the court's practice and procedure under sec. 809.62(2)1 and (6)2 in deciding issues not raised in the petition for *792review.3 The defendant asks for an opportunity to brief the issues upon which the court based its decision. If reconsideration is granted the state asks for an opportunity to update its original brief.4

On motion for reconsideration the majority opinion denies the defendant an opportunity to submit an additional brief, concluding that because the court decided the case on the very "issue" presented in the petition for review, the defendant had had an opportunity to present all "arguments" in the initial briefs. The majority opin*793ion rests this conclusion on its interpretation of the word "issue" in sec. (Rule) 809.62(2) and (6), distinguishing between issues and arguments as follows: "the issues before the court are the issues presented in the petition for review and not discrete arguments that may be made, pro and con, in the disposition of an issue either by counsel or by the court." Majority op. at 789.

The majority quotes the state's petition for review (p. 2) as setting forth the issue as follows: Does the playing of the tape violate the defendant's constitutional right "to be free from unreasonable searches and seizures?" The majority ignores the subsequent passages of the state's petition that expressly narrowed this statement of the issue to fit the facts, namely that the state "has defended, and will be defending, the playing of the tape on the basis that it was a legitimate part of a probable cause search of an automobile that had been the site and an instrumentality of a crime." (p. 12)

I agree that the court and parties must examine the petition for review to determine the issues the petitioner may raise on review. As I read the petition for review in this case — and as both the state and defendant understood it — the petition presented the narrow issue of whether the playing of the tape was a legitimate part of a probable cause search of an automobile that had been the site and an instrumentality of a crime. In this case, the petition for review, the response and the briefs all show that the parties understood the case as presenting a narrow probable cause issue under the fourth amendment. The parties in this case briefed and argued only this narrow probable cause issue of fourth amendment law.

The majority has recast the state's (the petitioner's) statement of the issue at a high level of generality. One can, of course, frame an issue at various levels of general*794ity. No a priori standard exists to determine the appropriate level of generality for framing the statement of an issue. Numerous books and articles attempt to advise the practitioner on the art of framing an issue. The usual advice proffered is that the attorney should raise only the most critical issues and should state each issue narrowly and precisely in terms of the facts of the case, not in abstract or general terms.5

*795The majority's distinction (via dictionary definition) between an "issue" and an "argument" fails, because any distinction depends on the level of generality used to define the issue (the question of law) and is too indeterminate to provide guidance to the parties or the court in future cases. The majority opinion will, I believe, prove troublesome for counsel and the court.

If the court wanted to view this case as raising broader or other issues than the one the parties set forth or different arguments than the parties made, whichever characterization the court prefers, the court had the jurisdiction to do so.6 Justice may require the court to examine issues the parties did not. I believe, however, that the court should request additional briefs from the parties when the court intends to rest its decision solely or substantially on significant issues (or arguments, if the court prefers) the parties never addressed. When the court does not ask for additional briefs before it renders its decision, then if after the decision the losing party moves to reconsider and asks to submit a brief on the new matters upon which the court relied, the court should, I believe grant the motion and authorize both *796parties to file additional briefs. This practice will, I conclude, ensure the parties' and court's compliance with sec. 809.62, will promote fairness, will not cause unnecessary delay, will preserve and protect the adversarial system, and will help assure correct results.7

For the reasons set forth, I dissent from the denial of the motion.