Citation of unpublished opinions comes back for more debate

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Citation to unpublished opinions by the Wisconsin Court of Appeals appears imminent.

Oct. 14, the state Supreme Court will hold a hearing on whether to amend Rule 809.23(3), to allow citation to unpublished opinions as persuasive, but not precedential, authority. This is the first time the high court has taken up the issue since an earlier proposal was rejected by a 5-2 vote.

Of the five current justices who have a previous record on the issue, three have supported it.

However, that doesn’t rule out an eleventh-hour twist, such as occurred the last time the Supreme Court considered a similar proposal, in 2002-03. (http://www.wislawjournal.com/ article.cfm/2003/05/28/citation-05-28)

Back then, it initially appeared that citation to unpublished opinions was fait accompli, with the court tentatively voting to allow it by a vote of 5-2, with only Justice Ann Walsh Bradley and then-Justice Diane S. Sykes in opposition.

However, after Sykes wrote a dissent, Justice William A. Bablitch announced that he found the dissent persuasive, and decided to change his vote.

Justice Jon P. Wilcox later changed sides, as well, and joined Sykes’ dissent.

Ultimately, Justice David T. Prosser voted against the petition, as well, but did not join any of the three written opinions the issue generated. Sykes’ “dissent” became a concurrence; Bradley wrote a separate concurrence; and Chief Justice Shirley S. Abrahamson wrote a dissent, joined by Justice N. Patrick Crooks. (http://www.wicourts.gov/sc/rulhear/DisplayDocument.html?content=html&seqNo=953)

Much has changed since 2003. Three of the five justices who ultimately voted against citation of unpublished opinions have left the court: Sykes, Wilcox, and Bablitch. The two justices who supported the amendment remain.

Furthermore, Justice Bablitch has been replaced by Justice Patience Drake Roggensack, who was one of the petitioners seeking the amendment back in 2002.

Assuming that neither Roggensack, Abrahamson, nor Crooks has changed his or her mind over the last five years, the petitioners only need to persuade one more justice to prevail.

Back in 2003, Prosser was the most conflicted among the justices. At an administrative conference, he stated that his initial support for the petition was driven by the fact that some of the reasons for the rule, such as limited access to unpublished opinions, have fallen away, and that change appeared inevitable.

At that time, Prosser said he didn’t want to be “afraid of the future,” but that he remained concerned about the drawbacks of permitting citation to unpublished decisions.

The new petition was filed by the Wisconsin Judicial Council, which will be represented at the Tuesday hearing by Beth Ermatinger Hanan, an attorney with Gass Weber Mullins LLC in Milwaukee.

As reasons for reviving the proposal, Hanan cited the continued increase in access to unpublished opinions, and the recent change in the federal rule.

The federal ban against citing unpublished opinions was dropped, beginning Jan. 1, 2007, and Hanan said the experience has been positive.

Ironically, the memorandum the council submitted in support of the petition even cites a recent article by Judge Sykes in the Southern Illinois University Law Journal (http://www.law.siu.edu/research/32spring/7%20-%20Citation%20-%20Sykes.pdf) for support.

In the article, Sykes noted that, in 79 cases she had heard since the federal rule change, she encountered only four citations to unpublished opinions, two of which came in a string cite.

However, Sykes and the council draw different conclusions from the results: in the article, Sykes interprets the data as proof that the rule change was unnecessary; the Council uses it to show that their opponents’ concerns about change to the state rule are overblown.

The state petition differs from the federal rule, in one key respect. The federal rule change was prospective only, while the council’s petition, if adopted as proposed, would allow citation to any unpublished Court of Appeals’ opinion.

The public hearing is scheduled for 9:30 a.m., Oct. 14, in the Supreme Court, Second Floor, East Wing, State Capitol, Madison.