Please ensure Javascript is enabled for purposes of website accessibility

THE DARK SIDE: Citation to unpublished opinions is like crying Wolff

By: David Ziemer, [email protected]//June 7, 2012//

THE DARK SIDE: Citation to unpublished opinions is like crying Wolff

By: David Ziemer, [email protected]//June 7, 2012//

Listen to this article

I recently received a very nice letter from Chief Justice Abrahamson, thanking me for my service on the Supreme Court’s committee to study citation to unpublished opinions.

The committee recently released its report. Needless to say, allowing citation to some unpublished decisions didn’t cause the sky to fall.

My guess is that the issue is now closed. Unpublished opinions issued after July 1, 2009, can be cited for persuasive value, but not before then.

It’s a shame, though. I’d like to see the rule changed again, this time to allow citation to opinions released before July 1, 2009.

Here’s an example of why:

Suppose a defendant moves to reopen a small claims judgment entered against him, something that probably happens dozens of times every day in Wisconsin. You would think the law would be clear on what the defendant must show in order to prevail on that motion.

But you would be very wrong.

Section 799.29 provides that the movant must file the motion within one year and he must show “good cause.”

But “good cause” is undefined and no published opinion defines the term.

There are a host of unpublished opinions issued before July 1, 2009, however, that discuss what constitutes “good cause.” Carey v. Yackley, 121 Wis. 2d 699, 361 N.W.2d 310 (Ct. App. 1984), and Williams v. Capitol Motel, 2008 WI App 1, 306 Wis. 2d 851, 743 N.W.2d 167, are a couple of examples.

Carey holds that “good cause” is a lower standard than “excusable neglect” – the standard for reopening a default judgment under sec. 806.07 in large claims cases. Williams holds that the two are essentially the same.

But neither these two cases, nor any of the others, can be cited in any court for any purpose.

Only one case can be cited on this issue. Wolff v. Second Wind Boat Works LLC, 2010 WI App 46, 324 Wis. 2d 305, 784 N.W.2d 182. Wolff holds that “good cause” is a lower standard than “excusable neglect.”

As a result, if there is an issue in a small claims case as to the standard for reopening a default judgment, the court and the litigants are stuck with an undefined term, and only one unpublished case for guidance. All the other cases, however well-reasoned they may be, must be ignored as if they didn’t exist.

Ideally, the legislature would define “good cause.” Or the state Supreme Court would grant review in some case and define the term for us. Or, the Court of Appeals could convert some case that raises the issue from a one-judge panel to a three-judge panel, and recommend it for publication.

But failing that, it would be nice if parties could at least present a full picture of the issue to circuit courts.

Instead, only Wolff can be cited.

I recognize change is unlikely. It took us years to get the Supreme Court to allow citation to any unpublished opinions. Now that that’s done, the impetus for allowing more of it has pretty much dissipated.

Some legal issues are complex and litigation over the applicable legal standard is unavoidable. But the standard for reopening a default judgment in a small claims action should not be one of them.

Unfortunately, until the legislature or the appellate courts take the initiative, parties and circuit courts have no choice but to keep reinventing the wheel whenever the issue comes up, and citing federal court opinions from the Second Circuit on the meaning of “good cause.”

Polls

Should Wisconsin Supreme Court rules be amended so attorneys can't appeal license revocation after 5 years?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests