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THE DARK SIDE: Cite this column, but not the opinion

If dictionaries were written by lawyers, one of the definitions for “frustration” would say “finding a case directly on point, but being unable to cite it because it is unpublished.”

So when the Wisconsin Supreme Court in 2009 said it would permit citation to some unpublished decisions, expectations were high. Even if an opinion is not binding precedent, we would at least be able to cite it and quote from it, rather than pretending we had made up an argument.

The problem was especially acute if you did a lot of work in areas that rarely resulted in published opinions. Appeals from small claims courts are generally heard by only one judge and thus were ineligible for publication. So every landlord-tenant dispute had to be argued as if the cases covering the problem did not exist. The same was true with misdemeanors.

But even with the new rule, things aren’t perfect. Consider a case decided Dec. 15 by the Wisconsin Court of Appeals, State of Wisconsin v. Card, 2011AP736-CR.

The issue is whether the evidence was sufficient to support a conviction for possession of oxycodone, when all the state did was present evidence that the defendant possessed Oxycontin pills.

The state argued the court could take judicial notice of the fact that Oxycontin contains oxycodone. But the court disagreed, saying, “people can use Oxycontin, abuse Oxycontin or know others who use it, without ever knowing the name of the active ingredient. By analogy, how many aspirin users know that acetylsalicylic acid is the active ingredient in that drug?”

No previous published case in Wisconsin covered this issue. Understandably, counsel for the defendant requested the court’s opinion be published, observing, “The case involves a possibly recurrent shortcoming in a drug prosecution: the failure to prove that a brand-name pharmaceutical is or contains the named controlled substance.”

Given how many people in this state are addicted to oxycodone, that’s a bit of an understatement.

The state agreed publication would be valuable.

But when the decision came down, it was not recommended for publication. Worse, the opinion was issued per curiam.

Pursuant to SCR 809.23(3)(b), attorneys can’t even cite the opinion for its persuasive value, much less as binding precedent.

So the next time you’re defending someone for illegal possession of oxycodone based on your client’s possession of an Oxycontin pill, go read the opinion. Cut and paste from it as freely as you like.

But whatever you do, don’t say “State v. Card.” That would violate Supreme Court rules.

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