The Wisconsin Judicial Council has resurrected the debate over citation of unpublished opinions from the Court of Appeals. In May 2003, the state Supreme Court in a 4-3 decision rejected a plan to allow attorneys to cite unpublished opinions.
On Jan. 25, the council submitted a new proposal to the Supreme Court, asking it to allow citation of those opinions for their persuasive value. The new plan, urging an amendment to Wis. Stat. Sec. 809.23(3), would not allow citation for precedential value.
Instead it states: “Because an unpublished opinion cited for it’s persuasive value is not precedent, it is not binding on any court of this state, and a court need not distinguish or otherwise discuss it.”
In notes supporting that petition, the council pointed to the electronic availability of unpublished opinions. The group also referred to the federal rules which eliminated restrictions on the citation of unpublished federal court opinions.
The state Supreme Court last considered a petition to allow citation of unpublished decisions as persuasive authority back in 2003. Initially, the court tentatively approved the measure. However, Justices Jon P. Wilcox and William Bablitch ultimately joined Justices Diane S. Sykes and Ann Walsh Bradley to defeat the proposal.
Three of those opposed to citation of unpublished opinions – Sykes, Bablitch and Wilcox – no longer serve on the court.