Proposal to allow citating unpublished decisions losing ground

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“My concern is that the ‘Foley and Lardners’ will have a huge advantage if citation to unpublished decisions is allowed.” Hon. William A. Bablitch Wisconsin Supreme Court

Citation to unpublished decisions of the court of appeals, which had appeared to be fait accompli, is looking less and less likely to become a reality in Wisconsin, as more justices expressed disfavor of the proposal at the Wisconsin Supreme Court’s administrative conference on Feb. 26.

When the court initially considered a proposal to permit citation to unpublished, but authored, three-judge opinions, while still excluding unpublished one-judge and per curiam decisions, the court tentatively voted to approve it by a vote of 5-2, with only Justices Diane S. Sykes and Ann Walsh Bradley in opposition.

Sykes then wrote a dissent to the proposal, and the next time the court gathered to consider it, Justice William A. Bablitch announced that, having read Sykes’ dissent, he intended to change his vote, and join the opposition.

Because Justice Jon Wilcox was not present at that hearing, due to illness, Bablitch moved to table the issue until all justices could be present. After that, a per curiam opinion was prepared in support of the proposal.

At the hearing last Wednesday, Wilcox asked that the issue be held again, so that he could have the opportunity to review the written opinions.

Justice David Prosser then dropped another bombshell on the proposal, stating that he was considering changing his vote, as well. Prosser cited a portion of Sykes’ dissent that discussed the change in procedures at the Department of Justice that approving the proposal would effect.

When the court of appeals issues a decision in favor of a criminal defendant, whether it is published or unpublished weighs heavily in determining whether the DOJ will seek certiorari review in the Supreme Court.

Prosser also expressed concern that it would become an attorney’s professional responsibility to read every unpublished case if the proposal were adopted, and suggested a possible compromise that would limit citation to unpublished cases to civil cases only.

Prosser added that his initial support for the proposal was driven by the fact that some of the reasons for the rule had fallen away, and what seemed to be its inevitability. Prosser stated he didn’t want to app-ear to be “afraid of the future.” In retrospect, however, Pros-ser noted there were still very troublesome questions with the proposal.

Announcing the reason for his change of heart at the last hearing, Bablitch stated, “My concern is that the ‘Foley and Lardners’ will have a huge advantage,” over small firms if the proposal is passed.

Redistricting

The court also considered what procedures it should adopt when the legislature fails to adopt a redistricting plan after new census figures are released, and decided to appoint a commission to present a proposal.

After the last census, the legislature was unable to come up with a plan, resulting in lawsuits in both state and federal courts.

Although the initial plan was to draft a rule themselves, the court chose to appoint a commission instead, based largely on opposition from Sykes and Prosser, stemming from concern over whether the court was well equipped to draft the plan.

Sykes stated, “I’m curious how the feds came up with three-judge district courts [to solve redistricting disputes]. I doubt it was established by judges sitting around a conference table.” Sykes stated that experts should present a proposal, instead.

Bradley stated that she did not share any such trepidation, noting that, although this is for the legislature to handle, in the event they don’t, the court must decide and needs a procedure.

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Bradley added that any procedure which keeps partisan politics out of it would be acceptable, endorsing the three-judge panel utilized in federal courts and supported by the political parties.

Bablitch questioned whether that would keep partisan politics out of the procedure, how-ever, stating, “It is so difficult to find a political eunuch serving as a judge.

Bablitch added, “A bipartisan solution can be as good or better as a nonpartisan one.”

The court narrowed the solutions to either sending the issue to the political parties to draft a proposal, or forming a commission independent from the parties, and ultimately selected the latter.

In support of going the commission route, Bradley stated that she did not want to appear to be only seeking input from the Republicans and Democrats, while Sykes stated that it would insulate the court from the whiff of partisan politics.

Accordingly, the court resolved to solicit nominations for a five-member commission that would consist of one member from each of the state’s two law schools, while the other three would be chosen from nominations submitted by the political science departments of the state’s various colleges and universities.

David Ziemer can be reached by email.