Stay Tuned – Supreme Court to Take Up Rule on Citation of Unpublished Opinions

WDC Journal Edition: Spring 2008
By: Beth Hanan - Gass Weber Mullins, LLC

The time has come. This fall, the Wisconsin Supreme Court will consider a fourth request to permit citation of unpublished Wisconsin appellate opinions as persuasive authority. Perhaps the fourth time’s the charm.

Currently, Wis. Stat. (Rule) § 809.23(3) restrict citation of Wisconsin court of appeals authority to published opinions, with limited exception:

Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case.

The rule was originally adopted in 1978, upon creation of the court of appeals, and based in part on a concern for the explosion, nationwide, of appellate decisions and the commensurate potential for a dramatic increase in time and resources spent on legal research.[1] Practitioners who violate the rule are subject to sanction.[2]

On January 25, 2008, the Wisconsin Judicial Council filed Petition 08-02, asking the court to expand the opportunities for citation in the following manner:

Citation of Unpublished Opinions. (a) An unpublished opinion may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case. (b) In addition to the purposes specified in sub. (a), an unpublished opinion may be cited for its persuasive value. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state, and a court need not distinguish or otherwise discuss it.

The primary reason to revise the current rule, as stated by the Judicial Council, is because unpublished Wisconsin appellate opinions are increasingly available in electronic form, eliminating concerns of unfairness and unequal access. In addition, the proposed loosening of the restriction conforms to the practice in numerous other jurisdictions, and is compatible with, though more limited than, Fed. R. App. P. 32.1, which abolished any restriction on the citation of unpublished federal court opinions, judgments, orders and disposition issued on or after January 1, 2007. See Note to Petition 08-02.

Prior Efforts to Expand the Rule.

The supreme court is not unfamiliar with this topic. Most recently, in a July, 2003 per curiam opinion, the court denied a petition submitted by a court of appeals judge and several practitioners which sought to amend the rule to allow for citation of unpublished opinions for persuasive purposes only.[3] See 2003 WI 84.

The primary arguments for and against citation in 2003 will be considered once again this year, though perhaps with federal experience data to support them. The 2003 arguments favoring change were: 1) public policy favored expanded citation; 2) unpublished opinions were already widely available, referred to by practitioners and often relied on sub silentio by judges; and 3) non-citation threatens the rule of treating like cases similarly and erodes confidence in the justice system. 2003 WI 84, ¶ 5.

The 2003 arguments against expanding citation were: 1) the current rule was working well; 2) the scope and cost of legal research would increase and create new professional obligations for lawyers; and 3) the change would increase the work of an already-busy court of appeals. Id., ¶ 4.

Some proponents of keeping the limited citation rule cite stare decisis as a basis to avoid change. But stare decisis is not a doctrinal hurdle in a matter of procedure untethered to a particular party’s dispute. It is a doctrine limited to case precedent. See Progressive Northern Ins. Co. v. Romanshek, 2005 WI 67, ¶¶ 41-44, 281 Wis. 2d 300, 687 N.W.2d 417. Thus, a supreme court constituted in 2008 with three different members than the panel in 2003 is a relatively fresh audience free to consider all arguments for and against permitting expanded citation and bringing Wisconsin in line with the federal courts and many other states.

Last time around, Justice Bradley wrote a brief concurrence, stating that as of that time, she did not view the perceived benefits to outweigh the potential adverse consequences. Id., ¶ 11. Then-Justice Sykes wrote a full-blown concurrence joined by Justices Wilcox and Bablitch. Chief Justice Abrahamson wrote a detailed dissent joined by Justice Crooks. Their rationales, described below, likely will be addressed again by the court this year.

Justice Sykes concluded that the proposed change would be a “major amendment to an important foundational appellate rule.” 2003 WI 84, ¶ 12. Justice Sykes was concerned that expanding the rule would interfere with the court of appeals’ ability to develop a consistent body of appellate case law, and perhaps decrease the quality of its work product. Id., ¶ 14.

The Sykes concurrence discussed at length the two earlier efforts to change the non-citation rule. In 1989, the State Bar filed a petition, also supported by the court of appeals, requesting that citation of unpublished opinions be permitted “for persuasive and informational purposes.’ The supreme court denied that request, essentially reaffirming the original justifications for adopting the rule: 1) that the type of opinion written for the benefit of the parties is different from that written for publication, and could require substantial revision before publication; 2) if citation were allowed, database services would develop and force treatment of unpublished opinions in the same manner as published opinions; 3) permitting citation gives an advantage only to those who know about the particular case; and 4) an unpublished opinion is not new authority but merely a repeated application of a settled rule for which there is ample precedent. In the Matter of the Amendment of Section (Rule) 809.23(3), Stats., 155 Wis. 2d 832, 833, 456 N.W.2d 783 (1990).

While concerned about the potential for added cost to parties, the Sykes concurrence was most troubled by the possibility of adding undue burden to the courts. She perceived that citation of unpublished opinions would interfere with the court of appeals’ ability to strike the right balance between its primary error-correcting function and its secondary, law-developing function. She feared that citing unpublished opinions for persuasive value essentially would create a second tier of quasi-precedential case law, assuming that appellate judges would spend more time on factual development of unpublished decisions to avoid future misapplication, and because unpublished court opinions are more influential than other persuasive sources. 2003 WI 84, ¶ 37.

In contrast, the Abrahamson dissent found it difficult to justify a system which permits parties to cite virtually anything except the court’s own unreported opinions. Id., ¶ 43, citations. In particular, the dissent focused on policy concerns: failing to permit citation would seriously threaten the principle that like cases be treated alike, seemingly render the court of appeals unaccountable, and would undermine trust and confidence in the judicial system. Id., ¶ 45. Unreported opinions are already used and relied upon by lawyers and judges.[4] Changing the rule to expressly permit such use would add transparency to the process.

The dissent particularly disagreed with the proposition that if unreported opinions were citable, appellate judges would spend more time on them. Id., ¶ 73. Such opinions were already read and used by judges and practitioners alike, even if those opinions were not fully citable. Such “covert” use did not appear to affect the time spent on those opinions, and in those jurisdictions where citation was permitted, dire consequences had not occurred. The dissent also hinted at constitutional hurdles to proscribing citation. Id., ¶ 78.

This Fourth Effort Could Be Different.

Curiously, when the 1989 petition was considered, no legal aid, public interest or consumer groups submitted position statements about the proposal. 155 Wis. 2d at 842. Nor do the concurrences or dissent reflect that such groups participated in the 2003 discussion. If a purpose of the current rule is to “level the playing field” between large and small law firms, or wealthy and economically-disadvantaged clients, perhaps such groups will participate in this fourth effort.

Importantly, if the 2008 court decides to expand the citation rule, it could adopt revisions not part of the current Judicial Council proposal. For instance, it could limit citable unpublished decisions on a prospective basis. It could allow citation for informational purposes. It could require that copies of cited unpublished authority be filed and served. Or, the court could add other restrictions, such as requiring parties to identify authority as unpublished during their oral arguments. Whether such potential amendments are considered will depend in part on position statement submitted by interested entities.

In any event, if the court decides to change the rule this time, one thing is certain – we’ll begin to accumulate data that supports or weakens a number of the theoretical concerns voiced against change. For instance, we’ll be able to track whether the court of appeals alters the volume of opinions it designates for publication, and even whether annual case terminations lose pace. Lawyers can track whether they truly are billing more for the legal research they perform, once they are free to add unreported Wisconsin appellate opinions to the existing wide array of citable persuasive authority. In some instances, being able to cite unreported Wisconsin opinions persuasively may eliminate the need to stitch together an argument based on non-Wisconsin persuasive sources.

There is reason to expect the Wisconsin experience would be positive. Professor Stephen R. Barnett of Washington and Lee University, surveyed federal practitioners in jurisdictions which permitted citation, prior to the federal rule change. He found that while the frequency of citation to unpublished opinions varied, no respondents suggested there was too much citation of unpublished opinions in his jurisdiction.[5] Moreover, virtually all responders stated they had regularly researched unpublished opinions, and any additional research burden was minimal or insignificant. The Barnett study did not reveal litigants who attempted to ‘blur the line,’ or argue that unpublished opinions should be treated as precedent and not merely persuasive.

Our supreme court is likely to schedule an administrative hearing in the fall of 2008 for this petition. The debate should be vigorous. If you have a perspective to share, submit your position statement well in advance of the hearing. A notice of the hearing will be posted in the Wisconsin Lawyer this summer.

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Beth Ermatinger Hanan is an appellate and trial practitioner at Gass Weber Mullins LLC in Milwaukee. She is also Vice Chair of the Wisconsin Judicial Council. The views expressed in this column are hers and are not meant to represent any position, formal or informal, of the Council itself.