State Bar of Wisconsin

Inside the Bar
October 2008

Board supports petition to allow citation of unpublished opinions for certain purposes

The Board of Governors voted at its Sept. 12 meeting to support Wisconsin Judicial Council Petition 08-02 to amend Wis.Stat. 809.23(3) to allow the citation of unpublished appellate opinions for persuasive value.

Current law restricts the authority of the Wisconsin Court of Appeals to publish opinions, with limited exceptions. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case.

The current standard was adopted in 1978, when the Wisconsin Court of Appeals was created. It was developed in part because of a concern about the nationwide explosion of appellate decisions and the commensurate potential for a dramatic increase in resources spent on legal research. Attorneys who violate the rule are subject to sanction.

Petition 08-02, asks the Supreme Court to expand the opportunities for citation by adopting the following:

(a) An unpublished opinion may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case.

(b) In addition to the purposes specified in sub. (a), an unpublished opinion may be cited for its persuasive value. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state, and a court need not distinguish or otherwise discuss it.

The main reason to revise the current standard is that unpublished Wisconsin appellate opinions are increasingly available in electronic form and the potential for unfairness and unequal access is therefore reduced. In addition, the proposed relaxation of the restriction 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 P. 32.1, which abolished any restriction on the citation of unpublished federal court opinions, judgments, orders, and dispositions issued on or after Jan. 1, 2007.

The Wisconsin Supreme Court has scheduled a public hearing on the matter for October 14.

Read an in-depth article representing the pros and cons of this issue in the August Wisconsin Lawyer™.

Inside the Bar