Supreme Court approves citation to unpublished decisions

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After numerous unsuccessful attempts over the three decades since the Wisconsin Court of Appeals was created, the Wisconsin Supreme Court has finally voted 6-1 to allow the citation of unpublished opinions as persuasive authority.

However, the rule change will not become effective until July 1, 2009, and only opinions issued on or after that date may be cited.

Furthermore, only judge-authored opinions (whether three-judge or one-judge) may be cited. Citation to per curiam opinions, summary dispositions, and memorandum orders will continue to be prohibited under the rule.

Other provisions approved by the Supreme Court in include: (1) a party citing an unpublished case must provide a copy to the other parties; (2) the rule will make no reference to unpublished cases from other jurisdictions; (3) a party has no duty to cite an unpublished opinion; (4) a committee will be appointed to study how the rule works; and (5) the court will review the issue in three years.

Although Justices David T. Prosser and Annette Kingsland Ziegler were conflicted about the merits of allowing citation to unpublished opinions, ultimately, only Justice Ann Walsh Bradley voted to continue the prohibition.

Only Chief Justice Shirley S. Abrahamson supported citation retroactively, to all judge-authored opinions since the Court of Appeals’ inception in 1978.

A number of concerns led the court to permit prospective application only. Justice Patience Drake Roggensack was concerned about the sheer volume of opinions that would suddenly become available, particularly in the criminal law arena.

Justice Prosser raised concerns about institutional parties, such as the Department of Justice, and insurance companies, who may in the past have declined to seek review of appellate decisions, because they knew those could not be cited, whereas they may have sought review, if they knew that, one day, they would.

Prosser also noted that Supreme Court justices have, over the years, sometimes voted not to accept review in some cases, because the opinion was unpublished, whereas, if the lower court opinion was published and citable, they would have voted to accept review.

Abrahamson dismissed this concern, noting that a litigant can always argue, “It was bad law then, and is still bad now,” but the rest of the court took the more limited option.

Abrahamson was also the only justice to support allowing citation to per curiam opinions, as well as judge-authored ones.

Justice Roggensack, a former Court of Appeals’ judge, opposed citation to per curiam opinions, noting that, when she was on that court, those opinions were written by staff attorneys under a judge’s supervision, and were only instructed to look at the bottom line, rather than issue a full narrative.

In voting to allow citation to not just three-judge opinions, but to include those heard by only one judge, several of the justices cited testimony to the court by Judge Richard S. Brown, chief judge of the Court of Appeals, during the Oct. 14 public hearing.

Because the appellate judges were not unanimous on the issue, Judge Brown emphasized he was only speaking for himself, rather than for the court.

Speaking of the pride of authorship, Judge Brown said, “Judges do just as much research on a one-judge opinion as a three-judge opinion, because the judge’s name is going on the opinion. Whether it’s one or three, my name is going on it. I want to write a good product; not a piece of dirt. And if the case goes to the Supreme Court, I want that court to have a good opinion from me.”

Judge Brown also decried the disparity between the current prohibition, and actual practice in Wisconsin courts.

“Attorneys use them [unpublished opinions]; circuit courts use them; we all do it all the time,” Brown said. “As a judge, I want all the information I can get. … I want the opinion to be based on all information available, and I think most trial courts feel the same way. The best way to provide justice is to have everything be available. To pretend an opinion is not there, and ignore it, because it is unpublished, is insanity. It just makes no sense.”

Another supporter of citation was Leonard G. Leverson, an attorney with Leverson & Metz, SC, in Milwaukee. During the public hearing, Leverson said attorneys have a First Amendment right to cite unpublished opinions.

“Anything said by any court, especially a Wisconsin court, is something that we have a right to cite,” he said.

Leverson also said it violates the principle of equal justice under the law to deny a party appearing before a court the right to inform that court how it ruled on the same issue in an earlier case.

However, attorneys testifying before the court were not unanimous in their support of the petition.

Michael Heffernan, an attorney with Foley & Lardner LLP in Madison, said he came to testify against the petition, because, “I was afraid the hearing would turn into a love-feast for unpublished opinions.”

Heffernan emphasized the primary purpose of the Court of Appeals — correcting errors, rather than development of the law — as a reason for keeping the current rule. Unpublished opinions are of limited value, he said, because of the limited nature of the Court of Appeals’ primary function.

Michael Van Sicklen, another attorney with Foley’s Madison office, also opposed the petition. Van Sicklen said he wanted to dispel any misapprehension some people may have that large firms might want the change, so they can have unlimited resources to research unpublished opinions and “bury” other attoneys.

Van Sicklin argued that modern litigation already takes too long and costs too much, and allowing citation to unpublished opinions will only exacerbate those problems.

However, attorney Beth Ermatinger Hanan, who presented the petition to the court on behalf of the Judicial Council, argued that, in many cases, the opposite will be true.

Hanan said currently, when there is no published precedent on an issue, attorneys must search case law from other jurisdictions looking for persuasive authority. It will be cheaper and faster, she maintained, when attorneys can cite an unpublished Wisconsin case for its persuasive value, instead.

As noted above, the Supreme Court will be including language in its order that attorneys have no duty to research or cite unpublished opinions. This language was added primarily to address concerns of Justice Ziegler that the rule change would result in an explosion of ineffective assistance claims in criminal cases.

Ziegler also cited cost concerns for opposing retroactive application of law. “Westlaw is expensive; it’s a luxury,” Ziegler said, adding, “If there is a duty to look at unpublished opinions, it will profoundly change the cost of litigation, and people of limited means have enough difficulty affording legal services as it is.”