Got Precedent? – Asking for Publication of an Unpublished Decision Does the Common Law Good

WDC Journal Edition: Spring 2006
By: Beth Hanan - Gass Weber Mullins SC

Who hasn’t read a court of appeals opinion and thought, “Eureka!” only to realize that the decision was unpublished, and therefore uncitable?1 In some instances, however, you may be able to persuade the court of appeals to publish the decision.

Rule 809.23(1)(a), Wis. Stat., sets out the criteria for publication, and subsection (1)(b) describes the types of decisions that should not be published. The rule also explains how anyone, including persons who were not parties to the appeal, can weigh in on the court of appeals’ publication determination.

Timing is critical for a request that certain per curiam decisions be published, and Rule 809.23 provides a two step request process. First, within 20 days from the release of a per curiam opinion that does not address issues of appellate jurisdiction or procedure, the person must request that the opinion be withdrawn, authored and recommended for publication. This request is directed to the panel that issued the opinion. Second, the person must request that the opinion be published. This latter request is directed to the publication committee.2 Typically, practitioners attach as an exhibit to the request for publication a copy of their request for withdrawal and authorship of the per curiam.

In contrast, there is no prescribed deadline to request that an authored, 3-judge decision be published.3 Practically speaking, however, making a request close to the release date increases the likelihood the request will be granted. Given the immediate access to court of appeals opinions via the court’s website and services like CaseLaw Express, most requests for publication are filed with the publication committee shortly after the opinion is released. That way the committee can consider the request when it first considers whether an opinion will be published. Nonetheless, requests may be submitted at anytime.

Each publication request should identify which criteria support publication.4 Copies of the request must also be served on the parties to the appeal or proceeding in which the opinion was filed. Parties may file a response to the request within five days after the request is filed.5 Due to the administrative nature of a publication request, the supreme court will not
review a decision by the court of appeals on such a request.6

When preparing a publication request, it’s helpful to know that the publication committee consists of the chief judge, or his or her designee, and a member from each of the four appellate districts.7 This committee meets monthly to discuss the publication status of all authored opinions released in the previous month. Committee members frequently consult with the judges of their home districts regarding publication before each conference.8 Opinions are published upon a majority vote of the committee. On occasion a vote on publication may be deferred for a month if committee members have additional material to consider.

Other input into the publication process can come when the chief staff attorney, after consultation with other staff attorneys, provides the publication committee with an analysis of the publication position asserted in the parties’ briefs, potentially conflicting opinions from other panels, and any recent applicable pronouncements by the United States and Wisconsin Supreme Courts.9

Some advocates have lobbied for additional publication input by lawyers practicing in the substantive area. For instance, in April 2002 the Wisconsin Law Journal ran an article by Atty. Gregg Herman, who lamented the shortage of published decisions on family law and urged incorporation of practitioner views in the publication decision. Thereafter, the Law Journal printed a response by Coleen Kennedy, then staff attorney for District III. Ms. Kennedy outlined the opportunities provided in Rule 809.23, likening them to the practitioner input provided by non-party briefs.

Wisconsin’s appellate court website, http://wscca.wicourts.gov, posts monthly and annual reports that include figures for cases terminated by opinion or otherwise. In 2004, the last year for which data is available, 33% of appeals were terminated by written opinion. Sixty-eight percent of the three-judge opinions considered for publication were published. While the website also lists the total number of motions handled by each district, it does not track the number of outside requests for publication, as that number is fairly small. Frequent litigants and trade groups are the entities most likely to request that an unpublished opinion be published. They are also the groups that may have the most substantive sense of how a decision will affect their industry.

It may be tempting, when in the midst of researching and briefing an appeal, to ask for publication of an opinion that mirrors the facts of your case. But the timing required to process such a request, plus a failure to tie the request to the itemized criteria of Rule 809.23(1)(a), could make success unlikely. Consequently, appellate counsel should pay close attention to unpublished opinions as they are released, so that any request for publication can be made promptly. Counsel who often litigate appeals that are usually decided by one judge, see Wis. Stat. s. 752.31(3), should, at the outset of the appeal, consider requesting decision by a three-judge panel if publication is desirable. Even if used infrequently, the request for publication procedure of Rule 809.23 is a useful mechanism for practitioners to assist the courts, and their clients, in building the common law.

APPELLATE UPDATECertification of Appendix. Effective January 1, 2006, Rule 809.19(2), Wis. Stat., has been amended to require appellate litigants to certify that their appendices comply with the content requirements of Rule 809.19(2)(a). This certification is similar to the form and length certification for briefs found in Rule 809.19(8)(d). The court of appeals had petitioned the supreme court to require this certification because the court of appeals relies heavily on appendices during the decision-making process. The court of appeals felt the certification requirement would increase compliance with the existing content requirement, and would improve the quality of appendices filed.

1 Unpublished opinions of the Wisconsin Court of Appeals have no precedential value and may not be cited in any court of this state as authority, except to support an argument for claim preclusion, issue preclusion or law of the case. Rule 809.23(3), Wis. Stat.

2See 809.23(4)(c).

3Rule 809.23(4)(a).

4See Rule 809.23(1)(a).

5Rule 809.23(4)(d).

6 See State v. Keeley, 92 Wis. 2d 426, 285 N.W.2d 141 (1979) (the determination is not a decision of a case or controversy, nor does it affect the substantial rights of a litigant).

7Rule 809.23(2).

8Wis. Ct. App. Internal Operating Procedures VI(7)(b).

9Wis. Ct. App. Internal Operating Procedures VI(7)(c ).