Court considers citing unpublished opinions

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Hon. Patience Roggensack

The state’s high court appears to be on the brink of modifying a key element of case citation. The Wisconsin Supreme Court has tentatively approved the citation of unpublished opinions, which have been authored.

That change would allow attorneys to cite unpublished one- and three-judge opinions from the court of appeals for their persuasive value. However, it would not allow attorneys to cite per curiam or summary decisions.

The court gave its initial app-roval to the proposal following an Oct. 22 public hearing. Two justices, Ann Walsh Bradley and Diane S. Sykes, opposed the proposal. Justice William A. Bablitch was absent from the hearing and administrative conference.

District IV Court of Appeals Judge Patience D. Roggensack presented the proposal during the public hearing. She spoke on behalf of a committee that reviewed the issue of unpublished case citation. That committee included Rog-gensack, Christopher G. Wren, Warren D. Weinstein and the late Howard B. Eisenberg.

“I think the rule change is very straight-forward in that it does permit the citation for the reasoning that is held within an opinion, when it is an authored opinion,” Roggensack explained.

She noted that per curiam and summary decisions were not included because of their brevity and limited reasoning, along with the fact that most of those are not authored by the court of appeals judges.

Dispelling Myths

District II Court of Appeals Judge Richard S. Brown supported the change and tried to dispel what he described as “the myths of this issue.” First, he addressed concerns about the quantity of unpublished decisions and the onerous task of trying to track them down.

“What we’re talking about is this, unpublished but authored opinions,” Brown said. “Last year the full year in 2001, there were 127 [three-judge opinions] out of 1,129 [unpublished] opinions.”

The second myth had to do with the perception that court of appeals judges do not pay as much attention to opinions when they are not planning to recommend them for publication.

“We write every decision as if it’s going to be published,” Brown said. “The same careful analysis goes into every decision. …

These are authored opinions — our names are going on them. We don’t want to write crap.”

Myth number three claims that if the case was important enough to cite it would have been published, Brown continued. He noted that a case might arise down the road where the fact situation is very similar to the unpublished case. Suddenly, the arguments of that unpublished decision become important to the case.

One of the other points raised by supporters of the proposed rule change was the lack of published opinions in several areas of practice including drunken driving, family law, termination of parental rights and child in need of protective services cases.

Bar Support

The State Bar of Wisconsin Board of Governors provided its support for the proposal. In September, the board voted 27-16 to support the citation of unpublished decisions for their persuasive value.

In a released statement, the bar board noted, “Many trial and appellate judges already consult unpublished opinions for rationale and consistency; many lawyers do the same. However, because the current rule allows neither judges nor lawyers to actually cite unpublished opinions, circuitous redrafting is often required to restate or reargue the same rationale already expressed in an unpublished opinion.”

State Bar Past President Gerald W. Mowris expressed the inefficiency of not being able to cite unpublished decisions when they are on point for a case that is currently being argued. Instead, the attorneys end up rewriting or lifting portions or arguments from decisions that the court of appeals already has decided.

“The problem with the current rule is that we often feel like … we’re plagiarizing,” Mowris said. “We’re taking what the judge has said — a decision made in an unpublished decision — and we’re putting it word for word in our brief … but we can’t say who the author is.”

Mowris also raised concerns from the bar regarding the publication process. He noted that 38 percent of the cases chosen for state Supreme Court review are unpublished opinions.

The State Bar statement also referred to a survey of its members in which 72 percent of the respondents “agreed that a party should be allowed to cite an unpublished Court of Appeals opinion for the persuasive value if a copy of the decision has been provided to the opposing party.”

In that same survey 59 percent of the respondents “agreed to some extent that all opinions of the Court of Appeals should be published and should be cited as precedent.”

Attorney Michael Heffernan was one of the voices opposed to the proposal. Heffernan expressed concerns about the burdensome responsibility that would be placed on attorneys to keep track of unpublished opinions in addition to published opinions.

“I think you can have too much knowledge and I welcome anything that simplifies my life,” he said.

Heffernan described the proposal to allow citation of authored, unpublished decisions as creating an arbitrary line since per curiam decisions would not be included. He noted that some attorneys would want to cite those as well.

The current system for establishing published and unpublished opinions also makes sense given Wisconsin’s two-tiered appellate system, Heffernan explained. The court of appeals was created to conduct error correction, not to create new case law, he continued.

The new proposal also would create a new burden for smaller law firms, which might not be able to afford the level of access to Internet-based legal research tools, which include unpublished opinions. That cost of researching unpublished opinions would have to be passed on and would result in more expensive legal services for clients, he said.

“This rule is going to create — I believe — a new ethical duty on behalf of all lawyers in this state to do computerized legal research at every stage of the litigation,” Heffernan said. “Not just at appeals, but in the trial courts.”

Ethical Obligation

Sykes asked Marquette Law Professor and Milwaukee Bar Association President-elect Daniel Blinka what he thought of Heffernan’s concern that the proposal would create a new ethical obligation for attorneys to “engage in computerized research into unpublished opinions.”

Blinka disagreed with the idea that the proposal would create a new ethical obligation for attorneys. He noted that the new rule would create a new mid-level opinion cited for its persuasive value that would fall between precedential opinions and per curiam opinions.

“I would put this in the same criteria as law review articles or treatises,” Blinka said. “While I have a duty as an attorney to diligently and competently represent my client, I don’t know that it translates to my being compelled to read every law review article that’s out there, much less to do extensive, far-reaching searches of unpublished court of appeals decisions.”

Blinka spoke on behalf of the MBA’s board, which unanimously supported the new proposal. The board, he said, sees the citation of unpublished opinions as being in the best interest of the public.

Court Consideration

Justice N. Patrick Crooks proposed adopting the new rule effective July 1, 2003. The rule would be prospective and would only relate to unpublished opinions released after that point. Crooks noted that judges and lawyers already are relying on those opinions.

“I think it’s a proposal that makes sense,” Crooks said. “It’s a proposal that would add to the knowledge available to lawyers and to judges. It sounds like there are judges and lawyers around the state now, who one way or the other are utilizing unpublished opinions. This legitimizes what has been going on.”

Bradley expressed some concerns about adopting the rule simply to legitimize what is going on. She also questioned the ambiguity of saying the opinion was only going to be used for its persuasive value rather than as precedent.

“I really think there’s a problem with saying this is going to be only persuasive, not [precedential],” Bradley continued. “I think there is as much opportunity for game playing and not being legitimate with regard to that approach too.

“A persuasive argument does not become more persuasive by citing it. It becomes precedential.”

Justice David T. Prosser Jr. raised questions about several elements of the proposal that he would like to see clarified.

“I just
don’t think we’ve resolved all of the problems,” Prosser said. “I think it’s a little difficult to draw a distinction between a per curiam opinion, which may be quite lengthy and quite substantive, and these other opinions.”

Prosser also questioned the decision to only allow citation of unpublished opinions from 2003 forward, leaving a large body of unpublished opinions between 1978 and 2003 which could not be cited.

“I don’t know why we would say the last 25 years would be in a black hole and can’t be cited,” Prosser said. “It’s just so artificial.”

During the public hearing Assistant Attorney General Susan Crawford had expressed concerns about allowing the citation of unpublished criminal opinions, which the Department of Justice might have decided not to bother challenging specifically because they were unpublished.

Prosser and Sykes both raised the question of creating an ethical obligation for attorneys by adopting the proposal. Crooks noted that he stood by Blinka’s observation that attorneys could not be held responsible for failing to cite an unpublished opinion.

Sykes also expressed concerns about creating a new category of unpublished opinion. Rather than do that, she said, the court should address the publication process and the lack of published decisions in specific areas.

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Chief Justice Shirley S. Abrahamson acknowledged that there was no perfect solution regarding the issue of published and unpublished opinions. She noted that publishing every court of appeals decision would be unmanageable.

“I believe at the moment we have gone as far as we can go on this. I read the house as at least as of this moment as adopting it as written,” Abrahamson said.

“Those who wish to look at this again and propose changes in it — like what you want to do with per curiam or summary disposition orders — look over it and suggest changes to [staff] and suggest alternatives. If not, it will come back intact for our final approval,” Abrahamson decided.

The court is expected to continue the discussion of citing unpublished opinions at its November administrative conference.

Tony Anderson can be reached by email.