May 16, 2012 – A state rule of appellate procedure that allows attorneys to cite unpublished Wisconsin Court of Appeals opinions as persuasive authority will continue unchanged, the Wisconsin Supreme Court recently concluded.

In January 2009, the supreme court adopted a rule, codified at Wis. Stat. section 809.23(3)(b), allowing unpublished opinions of the court of appeals to be cited as persuasive authority. Prior to 2009, practitioners could only cite unpublished appeals court opinions to support a claim of claim preclusion, issue preclusion, or the law of the case.

The order adopting the rule called for court review of the rule in 2012. To accomplish this task, the court appointed a Citation of Unpublished Opinions Committee, which issued a final report in March 2012 with a recommendation that the rule continue without changes.

At its administrative conference in April, the court accepted the committee’s final report and recommendations. In addition to recommending that the rule continue in force without amendment, the report made several other recommendations, which the court also accepted.

The committee recommended that the appropriate citation format for unpublished opinions be posted on the court’s website and the committee’s final report be made public. The court will not review the rule again but will take up future problems as they arise.

The Rule

Under Wis. Stat. section 809.23(3)(b), only unpublished opinions issued on or after July 1, 2009, which are authored by a member of a three-judge panel or by a single judge under section 752.31(2), may be cited. Per curiam opinions, memorandum opinions, and summary disposition orders may not be cited. The statute also requires a party citing an unpublished opinion to file and serve a copy of the opinion with the brief or other paper in which the opinion is cited.

For purposes of appeals, the court also amended Wis. Stat. section 809.19(2), which requires practitioners to include unpublished opinions in the appendix of appellate briefs if cited.

Because an unpublished opinion cited for its persuasive value is not precedent, it is not considered binding, and a court need not distinguish or otherwise discuss an unpublished opinion. No party has a duty to research or cite unpublished opinions under the rule.  

But according to the Hon. Richard Brown, chief judge for the Wisconsin Court of Appeals, more unpublished opinions are being cited, at least in District II. He estimates that one in every 20 appellate briefs contains citation and discussion of unpublished decisions, which is a lot considering the number of cases handled by appeals court judges annually.

"Not only that, when reading the circuit court record in our cases, we see that unpublished opinions are being cited to the trial courts," Chief Judge Brown said. "Whether an unpublished opinion is 'persuasive' is literally a case-by-case determination."

Judge Brown, who supported the rule amendment to allow citation to unpublished opinions, says the rule is working as envisioned, and better briefs are being filed in one-judge cases in District II. 

"We can only conclude that this is because, in mining the research libraries for unpublished opinions, lawyers actually learn more about the issue than might otherwise have been the case."

The Report

In its final report, the committee published data and statistics based on a 12-month period before and after the effective date of the rule amendment, reporting no significant difference or negative change attributable to the rule amendment.

The report notes that at the time of Wisconsin’s citation rule amendment, 17 other states allowed practitioners to cite unpublished appeals court opinions. Ten jurisdictions allowed unrestricted citation of all types of appellate decisions, the report found.

The original petition, filed by the Wisconsin Judicial Council, had asked the court to adopt a rule that would have allowed practitioners to cite any unpublished appeals court decision, including per curiam opinions, memorandum opinions, and summary disposition orders. However, the court adopted a narrower rule excluding those types of unpublished opinions.

In public hearings, Justice Annette Ziegler expressed concern that a rule amendment could lead to increased suits for ineffective assistance of counsel in criminal cases. But the committee’s final report states that “no cases were reported by court staff where ineffective assistance claims had been based on citation or research of unpublished opinions.”

Previous attempts to amend the rule concerning unpublished opinions faced concerns that unpublished opinions are not widely accessible. But unpublished opinions are now accessible online through various sources, including the Wisconsin Court System website.

Other Information on Publication 

A committee of appeals court judges, which meets monthly, decides whether an opinion should be published. Wis. Stat. section 809.23(1) sets for the criteria for publication.

An opinion is considered for publication if it:

• enunciates a new rule of law or modifies, criticizes, or clarifies an existing rule;
• applies an established rule of law to a factual situation significantly different from that in published opinions;
• resolves a conflict in prior decisions;
• contributes to the legal literature or;
• decides a case of substantial and continuing public interest.

Judge-authored opinions contain a written recommendation, made by a deciding panel, on whether an opinion is recommended for publication. But not all opinions that are recommended for publication become published opinions. In 2010, only about half of the 319 three-judge opinions considered for publication were ordered published.

Opinions that are “recommended for publication” are considered unpublished opinions, meaning practitioners cannot rely on them as precedent. However, parenthetical citation, such as “recommended for publication,” may address the weight of authority. For purposes of appeals, an opinion is considered published on the date of the order for publication.

Adam Korbitz is the Government Relations Coordinator for the State Bar of Wisconsin.

 State Bar Legal Writer Joe Forward contributed to this report