Citing unpublished opinions

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An opinion from the Wisconsin Court of Appeals on July 31, State v. Schutz, No. 2008AP729-CR, demonstrates something needs to be done about the rule against citation to unpublished opinions.

The issue in the case was whether a police officer’s administration of field sobriety tests to a suspected drunk driver was lawful.

You would think that there would be no question as to what is the proper standard for when such tests can be administered. You would be wrong.

The problem is that this issue generally arises in drunk driving cases that do not result in a felony conviction. Therefore, the appeal is considered by only one judge, and the opinion is not eligible for publication.

Thus, the court spent six paragraphs discussing what standard it should apply. The court notes, “After stating that no Wisconsin case has addressed whether a field sobriety test is a search within the meaning of the Fourth Amendment or what standard must be met in order for the administration of the tests to be lawful, Schutz cites to several cases from other jurisdictions holding that reasonable suspicion is the correct standard to apply.”

Actually, there are plenty of Wisconsin cases that address the issue. The problem is they are all unpublished; thus, Schutz’ attorney must waste time citing persuasive authority from other jurisdictions. He should have been able to merely write, “A field sobriety test is a search; the standard is reasonable suspicion. See State of Wisconsin v. John Doe, 123 Wis.2d 456.

This problem is not unique to this area of the law. Attorneys defending traffic tickets, or litigating a landlord-tenant dispute, face the same problem. The Court of Appeals’ opinions resolving these cases don’t get published, so there is no binding case law to cite. It also makes it impossible to advise clients; you can’t say to the client, “The law is X.” Instead, you can only advise, “The court could hold either X or Y, and it wouldn’t be wrong either way.”

The Court of Appeals has authority to convert a misdemeanor or small-claims case to a three-judge case, so the opinion can be published, but this rarely happens.

Of course, allowing citation to unpublished opinions would have its costs as well as its benefits. Nevertheless, simply getting rid of this charade that “no Wisconsin case has addressed this issue,” and looking solely to foreign jurisdictions, when in fact, it has been addressed by Wisconsin’s Court of Appeals many times, would be a pretty big benefit.

The system as it stands now forces attorneys and judges to continually reinvent the wheel, even though the blueprint for a wheel is available on the Internet (in the form of an unpublished, uncitable opinion), and everyone involved in the case knows it.