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THE DARK SIDE: Citation to unpublished opinions is like crying Wolff

I recently received a very nice letter from Chief Justice Abrahamson, thanking me for my service on the Supreme Court’s committee to study citation to unpublished opinions.

The committee recently released its report. Needless to say, allowing citation to some unpublished decisions didn’t cause the sky to fall.

My guess is that the issue is now closed. Unpublished opinions issued after July 1, 2009, can be cited for persuasive value, but not before then.

It’s a shame, though. I’d like to see the rule changed again, this time to allow citation to opinions released before July 1, 2009.

Here’s an example of why:

Suppose a defendant moves to reopen a small claims judgment entered against him, something that probably happens dozens of times every day in Wisconsin. You would think the law would be clear on what the defendant must show in order to prevail on that motion.

But you would be very wrong.

Section 799.29 provides that the movant must file the motion within one year and he must show “good cause.”

But “good cause” is undefined and no published opinion defines the term.

There are a host of unpublished opinions issued before July 1, 2009, however, that discuss what constitutes “good cause.” Carey v. Yackley, 121 Wis. 2d 699, 361 N.W.2d 310 (Ct. App. 1984), and Williams v. Capitol Motel, 2008 WI App 1, 306 Wis. 2d 851, 743 N.W.2d 167, are a couple of examples.

Carey holds that “good cause” is a lower standard than “excusable neglect” – the standard for reopening a default judgment under sec. 806.07 in large claims cases. Williams holds that the two are essentially the same.

But neither these two cases, nor any of the others, can be cited in any court for any purpose.

Only one case can be cited on this issue. Wolff v. Second Wind Boat Works LLC, 2010 WI App 46, 324 Wis. 2d 305, 784 N.W.2d 182. Wolff holds that “good cause” is a lower standard than “excusable neglect.”

As a result, if there is an issue in a small claims case as to the standard for reopening a default judgment, the court and the litigants are stuck with an undefined term, and only one unpublished case for guidance. All the other cases, however well-reasoned they may be, must be ignored as if they didn’t exist.

Ideally, the legislature would define “good cause.” Or the state Supreme Court would grant review in some case and define the term for us. Or, the Court of Appeals could convert some case that raises the issue from a one-judge panel to a three-judge panel, and recommend it for publication.

But failing that, it would be nice if parties could at least present a full picture of the issue to circuit courts.

Instead, only Wolff can be cited.

I recognize change is unlikely. It took us years to get the Supreme Court to allow citation to any unpublished opinions. Now that that’s done, the impetus for allowing more of it has pretty much dissipated.

Some legal issues are complex and litigation over the applicable legal standard is unavoidable. But the standard for reopening a default judgment in a small claims action should not be one of them.

Unfortunately, until the legislature or the appellate courts take the initiative, parties and circuit courts have no choice but to keep reinventing the wheel whenever the issue comes up, and citing federal court opinions from the Second Circuit on the meaning of “good cause.”

3 comments

  1. Very thoughtful and rational discussion of the problem, although it might be helpful to those actually facing the problem if you could provide the citation to the Second Circuit cases people are left to rely upon.

    Unfortunately, I suspect that many small claims appeals, like many s.974.06 appeals in criminal cases where there is no right to appointed counsel, are handled by pro se litigants since it just doesn’t pay to hire an attorney when relatively small amounts are at stake. However, while the Court of Appeals has several times used published decisions to create new (and often unjustified) restrictions on relief in s.974.06 appeals, it appears unwilling to create such rules in civil cases absent representation of both parties by counsel. Perhaps the Court could resolve this problem by using the Appellate Practice Section’s pro bono project to appoint counsel for one or both sides in a small claims appeal where the issue arises so it can finally resolve the matter in a published decision.

  2. Sorry, that should read: while the Court of Appeals has several times used published decisions to create new (and often unjustified) restrictions on relief in pro se s.974.06 appeals, . . .

  3. good points, rob. i did not cite to any 2d circuit cases on purpose. if you research this issue, you will find that, lacking any citable wisconsin cases on the meaning of “good cause,” a bunch of unpublished, uncitable, cases cite 2d circuit cases on the definition that actually are citable, yet it is forbidden to note that previous judges of the wisconsin court of appeals have found the reasoning of those opinions persuasive. i deliberatly did not cite any 2d circuit cases, for the purpose of highlingting how sick and absurd is our current situation.

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