State Bar narrowly supports petition to cite unpublished opinions

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By a one-vote margin, the State Bar of Wisconsin’s Board of Governors supported a petition to allow citation of unpublished opinions as a persuasive tool in litigation.

But while 29 of the 46 board members in attendance at the Sept. 12 meeting, or the required 60 percent, endorsed the Wisconsin Judicial Council’s petition, others raised concerns about the necessity and retroactivity of the proposed amendment to Wis. Stat. 809.23(3).

Currently, state statute forbids citation of unpublished opinions, with limited exceptions.

April M. Southwick, counsel for the Judicial Council, said 20 years ago, access to unpublished opinions was limited, but the advent of technology has made them more accessible; therefore, they should be available to attorneys in state for citation.

“It used to be that unpublished meant inaccessible,” said Southwick. “That’s not the case anymore.”

Citing the Past

Gov. Margaret Wrenn Hickey opposed a change that would permit attorneys to retroactively cite unpublished opinions. She said the Family Law Section of the State Bar has actively petitioned certain cases to remain unpublished because of their complexity.

“There are a lot of goofy cases out there,” said Hickey, who practices family law.

“Ultimately, if the court decides all unpublished decisions can be cited, the work of the Family Law Section in that area not is not just wasted, but probably undone.”

In addition, Hickey argued that many unpublished opinions may have been written with the assumption that they never would be used persuasively in court.

Southwick said the petition does not recommend a starting date for when unpublished opinions can be cited, but noted that the state Supreme Court could implement a specific start date. A public hearing on the matter is scheduled for Oct. 14.

According to the proposed rule change, unpublished opinions could be cited for “persuasive value,” but would not be recognized as precedent.

As to whether unpublished opinions would lack the same clarity as published opinions, Southwick said it is a non-issue.

“I don’t think there would be a push to cite them if they were of poor quality,” said Southwick.

Broadened Resources

President-Elect Douglas W. Kammer voted in favor of the petition, but said he agreed in part with Hickey’s position.

“The thought was that all these demons are going to come out from under the rug, so [Hickey] convinced me that any citations should be prospective,” said Kammer, who added that the change will increase the resources available for attorneys looking to cite cases specific to their own.

He also suggested the Judicial Council should have gone further in its petition and called for all opinions to be published.

“Judges should be accountable for the decisions they make,” said Kammer.

Gov. Nicholas C. Zales said the rule change would create an unnecessary burden on practitioners. In addition to researching published opinions, attorneys would have to invest additional time and money to peruse unpublished ones as well, Zales said.

“I don’t see one example of an attorney saying I need an unpublished opinion to proceed in my case,” said Zales, a solo practitioner in Milwaukee. “I haven’t needed one in 15 years of practice, so I don’t see this as worthwhile.”

But Gov. Joseph M. Cardamone III said the benefits will likely be dictated by an attorney’s area of practice.

Cardamone, a solo practitioner in Salem, suggested that unpublished opinions could be especially useful in criminal defense or drunken driving cases, which are typically broader than family law cases. The ability to cite unpublished opinions will expand on the resources available to attorneys when preparing their cases.

In fact, Cardamone just had a situation where two unpublished decisions could have aided in his defense of a case.

“I recently filed a brief with the court in which I cited two unpublished opinions and I put them in without realizing what I’d done,” said Cardamone. “Luckily, the prosecutor called me and said I can’t find these cases, so he let me withdraw the brief before the judge chewed me out.”

In a Wisconsin Law Journal online poll earlier this summer, 76 percent of respondents supported changing the rules to allow citation of unpublished opinions.