Suppose you’re doing research for a brief in support of a motion to exclude some piece of evidence from an upcoming trial.
You come upon a published opinion by the Wisconsin Court of Appeals that is directly on point. But it has a flag, indicating that it is no longer good for at least one point of law.
You investigate. It’s not a problem, you conclude. The opinion contains two holdings: the first concerns the evidentiary issue you are researching; the second concerns the legality of the sentence (if a criminal case) or the damage award (if a civil case).
The Supreme Court overruled the Court of Appeals’ opinion on the latter issue, but the evidentiary holding was not even considered by the court.
So, you cite the case as binding precedent, with the standard caveat, “overruled on other grounds by Smith v. Jones, 1 N.W.2d 1.” You learned how to do this in your first year of law school, and you’ve been doing it ever since. What could possibly go wrong?
Well, did it ever occur to you that the Wisconsin Supreme Court might have decided to toss centuries of standard operating procedure out the window for no good reason?
Of course, it never occurred to you. Why on Earth would the Supreme Court do such a thing?
I’m just a simple, provincial attorney, and that’s a question I cannot answer. All I can do is inform you that, believe it or not, that’s exactly what they have done. Blum v. 1st Auto & Casualty Ins. Co., 2010 WI 78 (July 14, 2010).
The majority opinion states, “when the supreme court overrules a court of appeals decision, the court of appeals decision no longer possesses any precedential value, unless this court expressly states otherwise.”
If the new rule had only prospective effect, it wouldn’t be so bad. The Supreme Court could simply take great care to explicitly state which holdings remain valid and which are overruled. It would be workable.
However, the new rule is retroactive, applying to all the Court of Appeals cases from 1978 until now. Nobody knows, and no one can know, just how much common law has been nullified by this new rule.
Hundreds of legal rules that courts and litigants have relied on for decades may have become worthless overnight.
How this new rule came about is almost as troubling as the rule itself.
The court did not hold hearings on the issue pursuant to its rulemaking authority, receive input from lower courts and attorneys, and look at what other states do.
Instead, it announced this rule in a contested case, in which neither of the parties had any interest in the issue.
A partial dissent by Justice Roggensack notes that, between the parties, less than six pages of briefs were devoted to this issue. This is not surprising; if the attorneys had spent any more time on the issue, they would have been guilty of overbilling their clients for work unrelated to the case.
Also troubling is the court’s rationale. The court says that the rule will be a benefit for circuit courts and attorneys.
The court says, “Circuit courts should not be forced to engage in legal analysis as to precisely which holdings in court of appeals decisions are still good law.”
Inasmuch as legal analysis is what we do for a living, the court apparently doesn’t think the state’s attorneys and lower court judges are very good at their jobs, and that they are doing us a favor.
What do they want us to say? “Thank you, Sir. May I have another?”
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August 30th, 2010 at 5:44 pm
What this author asserts as “longstanding fact” is not. What he was taught in Law School was not that court of appeals findings survive contrary decisions, but rather that prior inconsistent caselaw of the courts that is overruled are only overruled as to the issues raised in the later decision.
Any holdings from a court of appeals decision that is reversed are obviously of no effect; the decision of the court of appeals is reversed IN ITS ENTIRETY. While the decision might give you a view as to how the court of appeals judges might rule on the unreviewed issue if it comes up in a future case, the reversed decision is clearly completely GONE.
This is yet another example of why Mr. Ziemer writes a newspaper instead of appellate briefs for clients. He’s not up to par with competent practicing counsel.
August 31st, 2010 at 10:56 am
heep, does that go for the three dissenting justices, and the outraged court of appeals judges that brought this to my attention, too?
August 31st, 2010 at 11:57 am
to clarify, when a court of appeals opinion is vacated, rather than reversed, it does become a nullity. but citing cases that have been reversed on other grounds is s.o.p.