This article is published courtesy of the July 2010 State Bar Appellate Practice Law Section De Novo newsletter.
By G. Michael Halfenger, Foley & Lardner, Milwaukee
Aug. 18, 2010 – Litigants in Wisconsin’s appellate courts who cite unpublished court of appeals opinions will soon have to include copies of those opinions in appendices accompanying any brief, petition, or response in which the opinion is cited. On May 27, 2010, the Wisconsin Supreme Court amended the rules of appellate procedure to require parties, nonparties, and guardians to provide copies of cited unpublished court of appeals decisions in their appendices.
The amendments clarify how litigants in the supreme court and court of appeals should comply with section 809.23(3)(c)’s requirement that they file and serve unreported court of appeals decisions that they cite: namely, by including any unreported decisions in an appendix accompanying the brief (or petition or response to a petition) in which the decision is cited. These amendments also make clear that appendices can be filed in connection with reply briefs, nonparty briefs, and guardian briefs, without seeking leave of court, in order to comply with the new requirement.
The court’s order accomplishes this revision by amending a number of rules. It amends section 809.19(2) to require appellants to include cited unpublished decisions in the appellant’s appendix and to require appellants to certify that a copy of any cited unpublished opinion is included there. Section 809.19(3)(b) is amended to require that a respondent’s appendix include copies of all unpublished opinions cited in a response brief. Section 809.19(4)(b) is amended to require that unpublished opinions cited in a reply brief are provided in an appendix to that brief. Sections 809.19(7)(b) and (c) and 809.19(8m) are amended similarly to require unpublished opinions cited in nonparty and guardian ad litem briefs be included in accompanying appendices. Sections 809.62(2)(f)(4) and 809.63(3) are changed to require that appendices to petitions for review and responses to those petitions include any unpublished opinions cited in those documents.
In each instance, the amendment requires that “[i]f an unpublished opinion is cited under s. 809.23(3)(a) or (b), a copy of the opinion shall be provided in an appendix.” As a consequence, a copy of an unpublished decision must be included in an appendix, even if the opinion was previously provided by another party in its appendix.
Notably, the new rule only applies to unpublished court of appeals decisions, which are the subject matter of sections 809.23(3)(a) & (b). Other “unpublished” authorities – e.g., circuit court decisions and federal decisions not published in bound volumes – are outside the letter of the revisions. The new rules do not preclude inclusion of these “unpublished” authorities in an accompanying appendix, and, in at least in some instances, including them will be the better practice. (Unpublished court of appeals decisions issued before July 1, 2009, still cannot be cited as precedent or authority. See section 809.23(3)(b).)
The text of the amendments presents a couple of other anomalies. First, only appellants are required to certify that their appendix includes all cited unpublished decisions. Second, the revision of 809.19(3)(b) seems literally to allow respondents to avoid providing cited unpublished decisions in an appendix by exercising their option not to file an appendix; it states: “The respondent may file with his or her brief a supplemental appendix. . . . Any supplemental appendix shall include a table of contents, a copy of any unpublished opinion cited under s. 809.23(3)(a) or (b), . . .” (bold italics added, underline in original). But section 809.23(3)(c) requires that a party citing an unpublished court of appeals opinion “file and serve a copy of the opinion with the brief or other paper in which the opinion is cited.” Certainly the amendment’s spirit is that respondents will comply with this requirement by including a copy of cited unpublished opinions in a supplemental appendix. Cf. Theresa Owens, “Supreme Court Approves Citation of Unpublished Opinions,” De Novo (July 2009) (“It is anticipated that rule petitions will be filed seeking to require a party citing an unpublished opinion to … include a copy in the appendix”).
The changes go into effect Jan. 1, 2011, but nothing precludes litigants from including copies of unpublished opinions in appendices filed before then. Indeed, David Schanker, the Clerk of the Supreme Court and Court of Appeals, suggested this course when the citation rule first went into effect. David R. Schanker, “Notes From the Clerk’s Office,” De Novo (July 2009) (“The copy of cited unpublished opinions required under § 809.23(3)(c) should be placed in the appendix to any brief or petition for review”). A copy of the order, granting, as modified, petitions submitted by Chief Judge Richard S. Brown, on behalf of the Court of Appeals (Petition No. 10-01), and by David R. Schanker (Petition No. 10-02), is available on the supreme court’s website.
About the author
G. Michael Halfenger is a partner with Foley & Lardner LLP, where he is co-chair of the Appellate Practice and a member of the Antitrust and Distribution & Franchise Practices and the Life Sciences Industry Team. He is the State Bar Appellate Practice Section chair.
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