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Citation of unpublished opinions OK

“It makes sense. There’s always a little bit of judicially imposed fiction to say, ‘everyone knows this prior case ruled in a particular fashion, but we don’t want you citing to it.’”

Steven M. Biskupic
U.S. Attorney

The U.S. Supreme Court last Wednes-day voted to allow citation to unpublished opinions in all federal courts in an amendment to Federal Rule of Appellate Procedure 32.1. The rule will take effect on Jan. 1, 2007, unless Congress disapproves the amendment before Dec. 1.

The Seventh Circuit is one of only four circuits that still ban citation to unpublished decisions. Under the new rule, the circuit will not be required to give precedential weight to unpublished decisions, but can no longer prohibit attorneys from even citing them.

Steven M. Biskupic, U.S. Attorney for the Eastern District of Wisconsin, praised the court’s decision. “It makes sense,” Biskupic said. “There’s always a little bit of judicially imposed fiction to say, ‘everyone knows this prior case ruled in a particular fashion, but we don’t want you citing to it.’ It’s like some precedents are better than others even though they all involved real people and real cases.”

Many suspect that the new federal policy will reinvigorate attempts to allow citation to unpublished decisions in Wisconsin state courts.

The Wisconsin Supreme Court last considered the issue in 2002-03. Initially, a petition to allow citation appeared to be fait accompli. At an administrative conference in October 2002, the court voted 4-2 to tentatively allow citations, with only then-Justice Diane S. Sykes and Justice Ann Walsh Bradley opposing the petition.

Then-Justice William Bablitch did not participate at that hearing, but was on record as supporting the petition.

“[T]hey are in the public stream, and therefore should be available for citation for whatever persuasive value they might have.”

Hon. Richard S. Brown
Wisconsin Court of Appeals

However, Sykes wrote a dissent, and when the court met again in January 2003, Bablitch changed his vote, after reading the dissent. At the time, Bablitch called Sykes’ dissent “the most persuasive case to have been made against allowing citation to unpublished decisions,” and added that he “could not recall having read anything more persuasive on any issue in his years on the court.”

Still, the petition to allow citation had a majority at that point. However, when the court met again in February, Justice David T. Prosser Jr. announced that he too intended to change his vote, and the petition was defeated.

Now both Sykes and Bablitch have left the court. Furthermore, Justice Patience Drake Roggensack, who was not a member of the Court at that time, was the appeals court judge who presented the petition to the Supreme Court for approval.

Roggensack stated, “I still feel that it is an interesting question, if someone were to bring a new petition. We would not consider it sua sponte.”

The petition that the court considered in 2002-03 did not apply to per curiam or to summary decisions, but only to authored opinions. It was supported at the time by the State Bar, although the Bar’s Appellate Practice Section was divided on the issue.

“The U.S. Supreme Court decision will certainly give new impetus to those who favor citation of unpublished decisions in Wisconsin state courts.”

Michael S. Heffernan
Chair, Appellate Practice Section

Michael S. Heffernan, of Foley & Lardner, LLP, in Madison, and the current chair of the section, spoke against the petition in 2002, but expects the issue to be raised again.

Heffernan said, “The U.S. Supreme Court decision will certainly give new impetus to those who favor citation of unpublished decisions in Wisconsin state courts. I would expect it will be raised here again. Wisconsin has ruled at least twice against citation of unpublished decisions, but the court has changed since then.”

Heffernan added, “It would be controversial when it comes up again, notwithstanding this decision by the U.S. Supreme Court.”

Heffernan stated that the Appellate Practice Section has no opinion on whether the state should follow suit, because of a lack of consensus on the issue.

Wisconsin Appeals Court Judge Richard S. Brown spoke in favor of allowing citation to unpublished decisions when the Wisconsin Supreme Court last considered the issue, and still supports a rule change.

During an interview, Brown said, “I think it’s a step in the right direction because it acknowledges the advance of technology in the area of legal research, which has made this research accessible to all. I also think that, because news organizations such as Wisconsin Law Journal publish these opinions anyway, they are in the public stream, and therefore should be available for citation for whatever persuasive value they might have.”

Brown added, “Obviously, published opinions are binding authority, and unpublished opinions would be simply for argumentative purposes. The trial courts, if the rule change was extended to Wisconsin, would be able to accept or reject the reasoning of the unpublished opinions. I think highly of our trial court judges, and I think they can make their own independent judgment whether to follow them.”

David Ziemer can be reached by email.

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