Vol. 82, No. 12, December 2009
Imagine you are getting ready to file a summary judgment brief and are in the midst of performing a final cite check. All the case law is lining up in your favor, but then you find a new Wisconsin Court of Appeals opinion that appears to directly conflict with the court of appeals opinion that is the centerpiece of your argument. “How can this be?” you ask. “What should I do now?” Such a finding should cause alarm because the Wisconsin Court of Appeals is a unified court.1 The effect of this unitary system is that published opinions of the court of appeals are binding on all four districts.2 Accordingly, as stated by the Wisconsin Supreme Court in Cook v. Cook, “the court of appeals may not overrule, modify or withdraw language from a previously published decision of the court of appeals.”3
Despite this clear mandate, conflicting court of appeals decisions exist, even if the phenomenon is uncommon. Further, this issue may be magnified in the future because attorneys are now permitted to cite, with some exceptions, unpublished court of appeals decisions issued on or after July 1, 2009.4 This article discusses how to spot these conflicts and how to determine which decision is controlling when two cases are factually analogous but the courts reach different legal conclusions.
Court of Appeals Conflicts
In light of Cook – which was decided in 1997 and is applied retroactively5– it is uncommon to come across a court of appeals decision that explicitly attempts to “overrule, modify or withdraw language” from a prior court of appeals decision. Nonetheless, court of appeals conflicts do present themselves in several ways.
First, the court of appeals has “discovered ways … to avoid [Cook], by using language other than ‘overrule, modify or withdraw’ even though that is the result of the opinion.”6 For example, a court may describe the prior decision’s analysis as “incomplete,” so as to avoid having to “overrule” that decision when reaching an arguably contrary result.7
Second, a court of appeals opinion may silently overrule a prior decision. This happens when the court of appeals fails to discuss, or even cite, an opinion that is factually analogous and then holds in a way that conflicts with the earlier decision. For example, in State v. Arneson, the court addressed whether the defendant gave consent to search her vehicle, and the court of appeals was faced with conflicting opinions that both appeared to control.8 Reliance on the first decision, State v. Gaulrapp,9 would not require suppression of the evidence, whereas reliance on the later opinion, State v. Williams,10 would. The Arneson court did not believe that the facts from the case at hand or from Williams could be reasonably distinguished from the facts in Gaulrapp, the earlier decision.11 Further, the court noted that “Williams did not attempt to distinguish or even mention Gaulrapp,” but the court nonetheless concluded that “Williams has, without directly saying so, overruled Gaulrapp.”12 Similarly, in American Family Mutual Insurance Co. v. Pleasant Co., the court of appeals discussed two prior court of appeals decisions that interpreted similar language from an insurance policy in different ways.13 As in Arneson, the American Family court noted that the later court of appeals decision did not mention the earlier, conflicting decision.14
Determining which Opinion is Controlling
When there is a conflict between a published and an unpublished court of appeals decision, the answer as to which decision is controlling is obvious – the published decision.15 However, when two published decisions are directly on point, the answer is less obvious. Before Cook, a court was free to “pick the one [it] like[d]”; however, a court is now precluded from taking this approach.16
Adam S. Bazelon, Marquette 2007 cum laude, is an attorney with Meissner Tierney Fisher & Nichols S.C., Milwaukee. He maintains a civil litigation practice, focusing on business disputes, employment law, and insurance coverage matters.
If a court finds that the later court of appeals decision overruled or modified a prior court of appeals decision, the court must follow the earlier decision. This is because the court of appeals lacks the power to overturn its own precedent and exceeds its jurisdiction by doing so.17 In contrast, when the court of appeals is confronted with conflicting supreme court precedent, it must follow the supreme court’s most recent pronouncement.18 However, the court of appeals is not powerless when it is confronted with a court of appeals or supreme court decision that it believes was incorrectly decided. The supreme court has offered two ways to deal with this situation: 1) the court of appeals may certify the case to the supreme court, or 2) the court may decide the appeal in adherence to prior case law but state in the opinion its belief the prior case was incorrectly decided.19
Even if the earlier court of appeals decision is clearly wrong or the later opinion states the better rule, courts (at least at the circuit court and court of appeals levels) must follow the earlier opinion. For example, in American Family, the court of appeals, citing Cook, followed the earlier court of appeals decision even though it recognized that cases holding similarly to the more-recent court of appeals decision were more persuasive.20 Not surprisingly, however, the supreme court overturned language from the earlier court of appeals decision.21 Similarly, the Arneson court held that it was bound by the earlier court of appeals decision regardless of whether it thought the later decision was the better one. The Arneson court went so far as to state that “[a]lthough we would much prefer to distinguish [the later decision from the earlier decision], there is no rational principle justifying a different result in the two cases.”22
Dealing with Conflicting Court of Appeals Precedent
When a court is confronted with arguably conflicting published court of appeals decisions, it must first attempt to harmonize the decisions.23 Accordingly, if the court finds that the earliest decision was not overruled or modified by the more recent decision, then it is free to follow whichever decision it finds controlling. Therefore, the most important consideration when faced with published, conflicting court of appeals decisions is which opinion is more favorable to the litigant’s argument. If the later opinion is more beneficial, the strongest argument is either that the two conflicting cases can be harmonized in a way that supports the litigant’s position or that the more favorable decision is analogous to the litigant’s case and the other is distinguishable.
On the other hand, if the earlier decision is more beneficial to the litigant’s position and the conflict is apparent, the argument should be that, pursuant to Cook, the earlier opinion is controlling because the later court lacked the power to overrule it. This is a powerful argument because if the court finds that the later opinion attempted to overrule the earlier opinion, it is bound by the earlier decision even if it does not agree with it. Even though this argument may be perceived with skepticism, it will, if successful, result in the court not following a potentially damaging court of appeals opinion.
If the case in which this argument is made finds its way to the supreme court, the argument should be abandoned because the supreme court can, obviously, overturn any court of appeals decision. Nonetheless, since the court of appeals is the court of last resort in the vast majority of cases, this is an important concept to keep in one’s arsenal of arguments.
Despite Wisconsin’s unified court of appeals, be aware that conflicting decisions do exist. While the conflicts may not be immediately apparent, Wisconsin attorneys should be aware that they might exist because they could affect which court of appeals decision is controlling. As stated, if a court (other than the supreme court) were to find that two published court of appeals decisions were indeed in conflict, it would be required to follow the earlier decision. This is an important principle to bear in mind because it defies the common understanding that later decisions control.