Court to reconsider unpublished opinion rule

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On Oct. 14, 2008, the Wisconsin Supreme Court will, for the fourth time, consider a proposed rule to allow citation to an unpublished decision for persuasive authority.

Several times in this column, I have commented that the current rule prohibiting such citations is wrong. “Citation of Unpublished Opinions Would Lead to Bluer Skies,” Wisconsin Law Journal, Feb. 25, 2008. A recent Court of Appeals decision lends support to this position.

One of the arguments made in favor of prohibiting citations to unpublished decisions has been that an unpublished opinion is not new authority, but merely a repeated application of a settled rule for which there is ample precedent. Judicial Council Committee’s Note to Rule 809.23(3), cited in In the Matter of the Amendment of Section (Rule) 809.23(3), 155 Wis. 2d 832, 456 N.W. 2d 783 (1990).

Let’s look at that rationale, in light of Warner v. Warner, 2007 AP 885, filed July 22, 2008 and not recommended for publication (Let’s hope the noncitation rule does not apply to legal commentators!). In the case, the mother appealed from a trial court ruling, which modified placement of the minor children utilizing Wis. Stat. §767.327 [now §767.481], the removal statute, rather than Wis. Stat. §767.325 [now §767.451], the modification statute.

The removal statute is triggered when, among other reasons, a parent seeks to move “at a distance of 150 miles or more from the other parent.” Wis. Stat. §767.327(a)(2) [now §767.481(1)(a)(2)]. The mother argued that her move was less than 150 miles from the children’s father “as the crow flies.” Both the trial court and the appellate court disagreed, holding that the 150 miles is measured by “ordinary routes of travel.”

While that holding might seem obvious to the appellate court, this is not an infrequent issue for family law attorneys and the statute is by no means clear — “150 miles or more from the other parent” can be understood as meaning a direct line or the distance it would take by winding roads. Given the size of this state, it is not difficult to move 150 miles or more without crossing the state line, which always triggers the removal notice. As a result, having some authority would be greatly helpful to clients when they are contemplating the legal process involved in a proposed move with minor children.

The issue in Warner is, of course, a minor one, but it illustrates an important point. For the most part, the case merely upholds the exercise of discretion by the trial court, not the type of holding meriting pages in caselaw books. Yet, within the case, there is a holding which arises from time to time and would be of guidance to practitioners and trial courts.

Warner is not the only family law case in which the ability to cite an unpublished decision would be useful. A continuing argument has been waged on the State Bar of Wisconsin Family Law Section list serve regarding whether the removal statute applies to paternity cases. While this is a frequent issue and there are no published decisions on it, the Court of Appeals has held — in an unpublished decision — that it does not apply. In re the Paternity of Kaila K.K.-E., No. 99-2141 (Dec. 27, 2000)(Ordered not to be published).

Once again, the ability to cite this case, even just for persuasive authority, would be of great assistance.

As had been discussed in this column before, there are other arguments for and against the non-citation rule. The argument, however, that citation is not necessary because unpublished cases are merely application of old rules, is contradicted by cases where the holdings are of first impression.

The current rule is inefficient, nonsensical and needs to be changed.