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Sun will shine on some unpublished decisions

Finally, the Wisconsin Supreme Court, to paraphrase Chief Justice Shirley S. Abrahamson, has let the sun shine in! Well, with blinds, if not curtains and drapes.

On Oct. 15, after a number of unsuccessful attempts, the high court voted, subject to certain limitations, to allow the citation of unpublished opinions as persuasive authority.

On a number of occasions in this column, I have written in support of this rule change.

The present rule makes no sense, in that a trial court opinion can be cited, but not a Court of Appeals case. The argument that unpublished cases do not need to be cited, since they would not be helpful, is belied by actual experiences to the contrary. The advent of online access has defeated the impediment to finding these cases.

The opening curtains-and-drapes comment was made because the rule change is subject to a number of conditions.

First, it will only apply to opinions filed on or after July 1, 2009. So, all the decisions prior to that date which would be helpful to lawyers, their clients and, yes, the courts, remain a state secret. Remember that the next time you wonder if the removal statute applies to paternity cases. (It’s in an unpublished opinion, so I can’t tell you the holding.)

Second, a party citing an unpublished case must provide a copy to the other parties in the case. This is a silly requirement, as finding an unpublished case online is no more difficult than finding a published case. However, at worst it is only a nuisance.

Third, and really, most problematic, is the limitation that 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. This limitation is worrisome, as the possibility exists that the court will simply issue more per curiam decisions when a case will not be recommended for publication. If so, it will strip the new rule of any real meaning.

Judge Richard S. Brown of the District II Court of Appeals, who testified before the Supreme Court in favor of the rule change, does not believe this will be a concern. Judge Brown told me:

“We are not, either by design or custom, a political court. Thus, there is no motive to hide behind a per curiam. We do what is our duty to do. If we are wrong in our assessment that a case has no real value to the bench and bar, and the issue recurs, the attorneys can inform us of that in briefing the next case and ask for publication. Or you can write about the issue in your column.”

Certainly it will be a long time before any effect of this rule will be noticed. There seems to a diminishing number of family law cases being decided on appeal, a trend well in accord with the diminishing number of lawyers representing clients in family law courts and cases being litigated.

Then, only new cases will be subject to the new rule, so it will be months before any signed opinions, which are not recommended for publication, are issued. Then, of course, a similar issue must arise in a new case.

Only time will tell whether any effect is noticed, even years from now. If, however, experience reveals that the rule limiting citation to signed opinions made this rule hollow, Judge Brown is right: It will be excellent fodder for this column!

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