Supreme Court adopts concept to cite unpublished opinions for persuasive value; adopts rules making reporting CLE credits easier
On Oct. 14, the Wisconsin Supreme Court adopted in principle Judicial Council petition 08-02 to amend Wis. Stat. section (rule) 809.23(3) to allow citation of unpublished Wisconsin appellate opinions for their persuasive value. The court also unanimously adopted Board of Bar Examiners petition 08-04 relating to procedures for reporting CLE credits.
Citing unpublished opinions. The supreme court adopted the concept of citing unpublished opinions for persuasive value with the following amendments to the Council’s petition:
- Citations will be limited to authored opinions signed by one or three judges in civil and criminal cases, and does not include per curiam decisions, summary dispositions, and memorandum orders.
- Only opinions issued on or after July 1, 2009, will be citable. Counsel must submit a copy of any unpublished opinion being cited to opposing counsel.
- The court will appoint a committee to set up procedures to identify materials that would allow an evaluation of how the rule works. The court will review the rule in 2011.
- The rule will include a Judicial Council note: Section (3) was revised to reflect that unpublished opinions are increasingly available in electronic form. This change also conforms to the practice in numerous other jurisdictions, and is compatible with, though more limited than, Fed. R. App. P. 32.1, which abolished any restriction on the citation of unpublished federal court opinions, judgment, orders and dispositions issued on or after Jan. 1, 2007. The revision to sub-section (3) does not alter the non-precedential nature of unpublished Wisconsin appellate opinions.
Judicial Council Vice Chair Beth Ermatinger Hanan told the court, “The main reason to revise the current rule at this time is that unpublished Wisconsin appellate opinions increasingly are available in electronic form, and the potential for unfairness and unequal access is therefore reduced.”
Court of Appeals Chief Judge Richard Brown appeared in support of the petition. He noted that the court of appeals has no position; however, he cited several recent examples of attorneys and the circuit court using unpublished opinions in their research. “I want my opinion to be based on the best and the most information possible,” said Brown. “I don't think I am alone. I believe that most trial judges in this state feel the same way. They want to put out a good product. They were elected to provide justice in their courts. The best way to provide justice in your court is to know all the information that is available.”
Those appearing in opposition to the petition raised several concerns, including that pro se litigants may find it difficult to locate unpublished opinions and that requiring lawyers to spend more time and money on researching could be a hardship on the solo practitioner and slow down the court of appeals process.
The court thanked the Judicial Council for its work on this issue, which has been before the court in 1982, 1989, and 2002. Citing unpublished opinions was initially banned in 1978, shortly after the Court of Appeals was established
Read Hanan’s article in the August Wisconsin Lawyer™ magazine.
CLE reporting. The supreme court unanimously adopted BBE petition 08-04 relating to reporting and approval of CLE credits. All of the proposed changes are designed to make CLE compliance easier for attorneys.
Carry-over credits and late filing. The amendments to SCR 31.05 eliminate penalties that lawyers sometimes incur in reporting CLE credits. Lawyers whose reporting is technically deficient no longer will be subject to losing carry-over credits. Under the current rule, for example, lawyers who have not yet satisfied the ethics-credit requirement or who file their reports after the Feb. 1 deadline lose all the carry-over credits they otherwise would be entitled to. In addition, lawyers will be entitled to credits for programs they attend even if program approval is not given until after a lawyer claims credit for it. However, SCR 31.03 has been amended to increase the late filing fee from $50 to $100.
BBE board member Thomas Boykoff told the court, “The board believes it is unfair for a lawyer to lose carry-over credits for filing late. The board hopes that the increased filing fee will encourage lawyers to file on time.
Dane County Circuit Court Commissioner Mary Beth Keppel, a BBE board member, noted, “We thought that taking carry-over credits away was unduly harsh merely because an attorney filed the CLE Form 1 late.” She pointed out that sometimes the lateness occurs because a seminar presenter did not have the credits approved.
On-demand programs. The amendment to SCR 31.01(6m) makes the board’s approval of an online on-demand program valid for up to two years, which corresponds more closely to all lawyers’ two-year reporting periods. On-demand programs are rebroadcasts of live or real-time programs that can be viewed online at any time. Under the current rule, CLE credits for on-demand programs are available for one year after the program has been approved for credit.
Filing deadline. A language clarification in SCR 31.03(1) eliminates an ambiguity that has created some confusion among lawyers as to when the CLE reporting period ends. The reporting period ends Dec. 31, and lawyers must file their CLE Form 1 by Feb. 1.
The State Bar Board of Governors and the BBE Review Committee unanimously supported this petition.
Listen to the hearings.
