The Wisconsin Supreme Court finally decided that it will not allow the citation of unpublished decisions as persuasive authority, at the Courts administrative conference last Wednesday.
The court has been considering the proposal since last fall, and had previously voted tentatively to approve it. Over the course of the debate, however, both Justices Jon P. Wilcox and William Bab-litch switched sides, and joined Justices Ann Walsh Bradley and Diane S. Sykes to defeat the proposal, which would have allowed such citation if the unpublished decision was a three-judge authored opinion. Even if passed, the petition would not have permitted citation to per curiam or one-judge opinions.
Bradley will write a per curiam opinion for the court, and Sykes will write separately.
Chief Justice Shirley S. Abrahamson and N. Patrick Crooks voted in favor of the proposal, and Abrahamson will issue a written dissent for the pair.
Justice David T. Prosser remains undecided. I will probably join one of the three opinions, he declared.
In an unusual move, at the behest of Justice Sykes, the court will publish the opinions in the official reports. Publication of administrative decisions is rare, but not unprecedented.
On another petition, the court voted 4-3 against permitting the court of appeals to deny motions for voluntary dismissal. Currently, appellants may voluntary dismiss their cases at any time until the decision is issued.
The court of appeals had requested that, if it had already spent substantial time on a case, and the case involved an issue of statewide importance, it be given the discretion to deny a motion to dismiss.
Justices Bablitch, Crooks, and Prosser all voted in favor of a modified proposal which would give the court of appeals discretion to deny dismissal after 30 days had passed since final briefing and submission to the court.
Bablitch stated that he could sympathize with the court of appeals not wanting to dismiss a case after putting in a lot of work on it, and argued that the proposal could act as a prod to the parties to settle cases earlier.
Chief Justice Abrahamson, and Justices Wilcox, Sykes, and Bradley, voted against the petition.
Speaking against it, Wilcox asked, Whose case is it? If parties run out of money or enthusiasm, they should be allowed to settle on their own.
Bradley also opined, If the role of the court of appeals is error-correcting, then, if parties dont want to litigate, they shouldnt be forced to. Im mindful that … the court of appeals plays a role in law developing, but the core function is error-correcting. This petition picks away at that core.
Also, in a preliminary 4-3 vote, the court voted tentatively to deny a petition that would have prohibited parties from requesting the Supreme Court to dismiss a pending case, and condition dismissal on vacatur of the lower courts opinion.
Justices Crooks, Wilcox, Bablitch and Prosser voted against the petition, while Bradley, Sykes, and Chief Justice Abrahamson voted in favor of it.
Railing against the proposal, Justice Prosser called it virtually an attack on free speech, as I see it. Noting that the court does not have to grant such a request, Prosser added, I cant buy the argument that it is wrong to make a reasonable request.
David Ziemer can be reached by email.