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    Citing Unpublished Opinions in Wisconsin State and Federal Tribunals

    The authors provide guidance for Wisconsin practitioners in deciding when to cite to an unpublished opinion.

    Kira ZaporskiMia Sefarbi

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    Wisconsin Lawyer
    Vol. 77, No. 11, November 2004

    Citing Unpublished Opinions in Wisconsin State and Federal Tribunals

    Lawyers often ask, "When can I cite an unpublished opinion?" In this article, the authors provide guidance for Wisconsin practitioners in making that decision.

    Sidebars:

    Paperwork by Mia Sefarbi & Kira Zaporski

    When is it appropriate to cite an unpublished opinion? The question typically involves two main considerations. First, there is the threshold issue of whether a particular court's rules or standards permit citing a particular unpublished opinion, even if only for persuasive effect. Second, if the opinion can be cited, what, if any, is its precedential value? This article focuses on the first issue. Guidance for the mechanics of citation is suggested in the accompanying chart.

    Citing Unpublished Opinions in Wisconsin State Forums

    1) Unpublished opinions of the Wisconsin Court of Appeals may not be cited as precedent or authority, pursuant to Wis. Stat. section (Rule) 809.23(3). Section (Rule) 809.23(3) provides: "[a]n unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of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issue preclusion, or the law of the case."1 The court of appeals has held that the statutory bar against citing unpublished opinions "concerns only court of appeals decisions."2

    2) Citing to unpublished Wisconsin Court of Appeals decisions for reasons other than as precedent or authority is allowed. Section (Rule) 809.23(3) is not a total gag rule.3 Unpublished court of appeals opinions may be cited for informational purposes, so long as the citation is not offered as precedent or authority.4 For example, parties may cite such decisions when petitioning the supreme court for review in order to demonstrate that one court of appeals decision is in conflict with another court of appeals decision.5

    Nonetheless, counsel citing unpublished decisions of the Wisconsin Court of Appeals for reasons other than the precedential value of the decisions must proceed with caution. The citations may be offered to inform, but not to convince or persuade.6 The court of appeals has imposed sanctions for violations of the no-citation rule when counsel asked the court to "consider the facts and circumstances of [the unpublished] decision in deciding [the instant] case."7 Similarly, sanctions were imposed in a case in which counsel asserted that the citations were merely for informational and illustrative purposes but his arguments "reveal[ed] his intent to persuade th[e] court with [] improper citations."8

    3) Decision makers apply section (Rule) 809.23(3) in a broad range of forums. Section (Rule) 809.23(3), by its terms, bars citing unpublished court of appeals opinions in "any court of this state." No precedential decision expressly construes the phrase "any court of this state" within the context of the statute. In practice, the rule against citing unpublished opinions is broadly applied to multiple levels of decision-making.

    a) Applying the rule in Wisconsin Supreme Court and Wisconsin Court of Appeals proceedings. There is no reason to question that the bar to citing unpublished opinions in "any court of this state" applies to the Wisconsin Supreme Court and Court of Appeals. "Court" is statutorily defined for purposes of chapter 809 in section 809.01(4) as the court of appeals or the supreme court.

    b) Applying the rule in Wisconsin's circuit courts. Although no published authority expressly confirms that section (Rule) 809.23(3) bars citing unpublished Wisconsin Court of Appeals decisions in Wisconsin trial court proceedings, a bar to doing so may be assumed. In unpublished decisions, the appellate court has found error when the trial court relied on an unpublished opinion9 and has accepted without criticism a trial judge's imposition of sanctions when an attorney cited as authority what all parties believed to be an unpublished opinion.10 Although Wis. Stat. section 809.01(4) defines the term "court" for purposes of chapter 809 as the Wisconsin Supreme Court and Court of Appeals, which might support a claim that citing unpublished Wisconsin appellate court decisions in Wisconsin circuit courts is permissible, the Wisconsin appellate courts have not adopted this position.

    c) Applying the rule in agency and board proceedings. Counsel who cites unpublished court of appeals decisions in proceedings before state agencies and boards risks violating the rule. The court of appeals based a finding of error on a violation of section (Rule) 809.23(3) when a board of review in a property tax assessment matter admitted an unpublished decision into evidence.11 Although the supreme court reversed the court of appeals, the grounds for reversal were unrelated to the citation of unpublished opinions. The court of appeals holding on that issue thus remains binding precedent.12 It therefore appears that section (Rule) 809.23(3) is interpreted as a bar to citing unpublished court of appeals opinions not only in court proceedings but also in proceedings before nonjudicial bodies that perform quasi-judicial duties.

    Wisconsin Court of Appeals Opinions in Unstable Publication Status

    Court of appeals opinions that are eligible for publication generally are accompanied by recommendations from the court as to whether the opinions should be published.13 The publication determination ultimately is made by the publication committee at its monthly conference.14 Thus, there is a time lag between the issuance of an opinion recommended for publication and any ultimate order to publish.

    1) Counsel is at risk in citing opinions that are recommended for publication in advance of a publication order. There is no published decision expressly addressing whether counsel may cite an opinion recommended for publication but not yet considered by the publication committee. Several unpublished decisions reflect that there is a risk in doing so, stemming from the possibility that the opinion ultimately may not be ordered published. One decision asserts, "[a]ttorneys may cite opinions recommended for publication at their peril."15 The court then expressly declined to impose sanctions because the opinion cited subsequently was ordered published. Similarly, the appellate court did not disapprove when a trial court lifted sanctions after a cited decision recommended for publication was in fact ordered published.16

    Opinions recommended for publication are considered unpublished; they may never be published. They do not have public domain citations that conform to the citation format mandated in SCR 80.02. Therefore, if they are cited, the format should conform to the Bluebook17 rules applicable to other unpublished opinions. Parenthetical phrases such as "publication recommended" (suggested by the State Bar's citation guide)18 and "recommended for publication" (used by the court) concern the weight of the authority and can be added pursuant to Bluebook rule 10.6.1.

    2) Opinions ordered published may be cited. Pursuant to section (Rule) 809.19(10), litigants in the appellate courts may cite as authority new decisions of the court of appeals as of the date of the order for publication. Thus, an opinion may be cited before it appears in a reporter so long as the citation post-dates the order for publication. This issue appears to be undisputed.19

    Citing Unpublished Dispositions Issued by Wisconsin Tribunals Other than the Court of Appeals

    Tribunals other than the court of appeals issue unpublished decisions. Virtually all such decisions may be cited.

    1) Unpublished decisions from the Wisconsin trial courts may be cited. Wisconsin trial court decisions may be cited "for whatever persuasiveness may be found in their reasoning and logic."20 No rule or statute equivalent to section (Rule) 809.23(3) bars such citation.21

    2) Unpublished subsequent appellate history of cited trial court decisions may be cited with caution. Section (Rule) 809.23(3) does not bar counsel from informing a court that an unpublished appellate decision reversed a cited circuit court decision. Such a citation simply informs the court as to the ultimate outcome of the case on appeal.22

    However, in a case in which a party informed the court that an unpublished appellate decision had affirmed a cited circuit court decision, the party was sanctioned; the court noted that the citation was accompanied by information in the party's brief that the unpublished affirmance dealt with the same issue and might be helpful. The court held that the party's "invitation to this court to consider its unpublished decision, or even the naked reference to it, violates both the letter and the spirit of sec. 809.23(3), Stats."23

    Thus, litigants are not obliged to endure an opponent's citation to seemingly persuasive trial court reasoning without having an opportunity to show, if they can, that the trial court's decision was reversed by a higher court. Whether litigants may bolster their own citations to trial court opinions by citing subsequent affirming appellate history is less certain and entails risk. Clearly, if attorneys provide such history they should not ask the court to consider the affirming opinion or make reference to the higher court's decision in a substantive discussion.

    3) Unpublished agency decisions may be cited. Numerous state agencies issue rulings and awards. There presently is no blanket bar to citing those that are unpublished. To the contrary, several published decisions note litigants' citations to unpublished agency orders and decisions, addressing those citations on their merits and without censure.24

    However, there sometimes are bars to citing specific dispositions of administrative disputes that are not necessarily a function of whether the dispositions are deemed "unpublished."25 Counsel should determine whether resolutions of agency proceedings are governed by specific no-citation rules based on something other than (or in addition to) their status as unpublished before citing them to another decision maker.

    Citation to agency decisions is governed by the Bluebook, including rules 14.1-14.3 (administrative materials), 10.8.1 (unreported cases), and 18.1.3 and 18.2.2. The format varies with the agency. For a variety of examples of citations to selected agencies' decisions along with governing Bluebook rules, recommendations for guidance in other circumstances, and agency telephone numbers, see the Wisconsin Guide to Citation.26

    4) Unpublished dispositions from the Wisconsin Supreme Court may be cited with caution. No rule, statute, or internal operating procedure expressly bars citing to the Wisconsin Supreme Court's unpublished resolutions. The court has on occasion itself cited to such an unpublished disposition.27 It also has entertained a litigant's citation without imposing sanctions.28

    Nonetheless, counsel contemplating citing an unpublished Wisconsin Supreme Court disposition should proceed with caution. First, the supreme court has never expressly construed the scope of section (Rule) 809.23(3). Second, SCR 80.02 does not provide an authorized citation format for unpublished Wisconsin Supreme Court orders. The supreme court clerk's office believes that the language of section (Rule) 809.23(3) and SCR 80.02 raises a significant unresolved question as to the citability of unpublished supreme court dispositions.29

    Unpublished Opinions from State Courts Outside of Wisconsin and from Federal Courts

    Citing to unpublished opinions from state courts outside of Wisconsin and from federal tribunals is permissible in Wisconsin state forums. However, counsel should consider any no- citation rules of the issuing jurisdiction and exercise caution in citing and relying on these materials.

    1) Unpublished opinions from state courts outside of Wisconsin may be cited. While the Wisconsin Court of Appeals has expressly approved only its own citations of unpublished decisions from other state courts,30 nothing in its discussion suggests that a party's use would be improper. Decisions from both the Wisconsin Supreme Court31 and the Court of Appeals32 have noted without disapproval counsels' citation to and reliance on unpublished opinions from other states.33 Nonetheless, while the courts have neither sanctioned litigants for such citations nor identified a bar to their use, the court of appeals has on occasion bolstered its decision to disregard an opinion from another state's court on the basis that the opinion is unpublished, even when the no-citation rule of the issuing jurisdiction allows more liberal use than does Wisconsin's.34

    Opinions from state tribunals other than Wisconsin's do not bind the courts of this state,35 no matter the opinion's status as published or unpublished and regardless of whether a foreign state's no-citation rule categorizes its unpublished opinions as nonprecedential, persuasive, authoritative, or mandatory. However, counsel might need to scrutinize the rules36 governing the weight and authority of foreign unpublished opinions in some circumstances, such as when resolution of an issue requires applying the law of another forum.37

    2) Unpublished federal dispositions may be cited with caution. No Wisconsin case or statute bars citation of unpublished federal dispositions in Wisconsin's state forums. The court of appeals and the supreme court have noted, without condemnation, parties' citation to38 and the decision maker's reliance on39 unpublished federal opinions. However, the court of appeals has, in an unpublished opinion, admonished counsel for failing to acknowledge that a cited federal case is unpublished.40

    On at least one occasion on which it cited an unpublished Seventh Circuit opinion, the court of appeals first considered the text of the Seventh Circuit's no-citation rule41 and concluded that it did not apply.42 This appellate court analysis suggests that counsel considering citing unpublished dispositions from other circuits should take into account the language of any no-citation rule governing those circuits.43

    Citing Unpublished Opinions in Wisconsin Federal Forums

    1) Citing unpublished opinions in the Seventh Circuit. The Seventh Circuit is one of four federal circuits that prohibit citing to unpublished opinions, except for limited purposes in related cases. Such citations also are prohibited in the Second, Ninth, and Federal Circuits, while the remaining nine circuits now permit citation of their unpublished opinions.

    2) Unpublished orders of the Seventh Circuit Court of Appeals may not be cited to the Seventh Circuit as precedent or authority. The Seventh Circuit prohibits most uses of its own unpublished dispositions, which it denominates as "orders."44 Specifically, Seventh Circuit Rule 53(b)(2)(iv) states that unpublished orders "[e]xcept to support a claim of res judicata, collateral estoppel or law of the case, shall not be cited or used as precedent, (A) in any federal court within the circuit in any written document or in oral argument; or (B) by any such court for any purpose." Thus there is no reason to believe that the Seventh Circuit would accept a party's citation to unpublished orders for broader purposes.

    3) Unpublished opinions of the Eastern and Western District Courts of Wisconsin may be cited to the Seventh Circuit. Seventh Circuit Rule 53(e) provides that no unpublished opinion or order of any court may be cited in the Seventh Circuit if citation is prohibited in the rendering court. Therefore, when "there is no rule in the court rendering a decision limiting the precedential value of its opinions, those opinions may be cited and are entitled to whatever weight the persuasive force of their reasoning warrants."45 While the Seventh Circuit has acknowledged that, at times, its opinions have "been less than consistent" regarding the issue of citing unpublished district court opinions, it recently emphasized that the applicability of Circuit Rule 53(e) to district court opinions remains "consistent and clear."46

    Local rules in the Eastern and Western District Courts of Wisconsin do not address citation of unpublished opinions. Therefore, nothing should prohibit a litigant from citing these courts' unpublished opinions in the Seventh Circuit.47 So, although a party is restricted from citing one of the Seventh Circuit's own unpublished opinions to the court, it is permissible to cite unpublished district court opinions to the Seventh Circuit. This distinction is similar to the difference in treatment of unpublished Wisconsin appellate court opinions and unpublished Wisconsin circuit court opinions.

    However, parties should keep in mind that unpublished district court decisions have no weight as precedent before the Seventh Circuit.48 Further, the Seventh Circuit has commented that an unpublished Seventh Circuit decision cannot elevate the lower court decision that it affirms to the status of circuit precedent.49

    4) Unpublished opinions of other courts may be cited to the Seventh Circuit but only if citation is allowed by the issuing court. The restriction contained in Seventh Circuit Rule 53(b)(2)(iv) on citing unpublished opinions pertains only to unpublished orders of the Seventh Circuit and not to unpublished orders issued by other courts.50 Additionally, Seventh Circuit Rule 53(e) provides that "no unpublished opinion or order of any court may be cited in the Seventh Circuit if citation is prohibited in the rendering court." Thus parties may cite to unpublished opinions from courts outside of the Seventh Circuit, if the local rules of the issuing court permit such citation. Correspondingly, parties may not cite to unpublished opinions from courts that would themselves prohibit such citation.

    The Seventh Circuit's rule would seem to bar citation of unpublished opinions from the Wisconsin Court of Appeals, because such citation is "prohibited in the rendering court" by Wis. Stat. section (Rule) 809.23(3). Yet the Seventh Circuit occasionally has relied on unpublished opinions from the Wisconsin Court of Appeals. In Western States Insurance Co. v. Wisconsin Wholesale Tire,51 the Seventh Circuit relied on an unpublished Wisconsin Court of Appeals opinion, apparently for its statement of legal principles, without including any indication that it was an unpublished opinion. In Shea v. Smith, an unpublished Seventh Circuit opinion, the Seventh Circuit relied on a series of Wisconsin Court of Appeals unpublished, per curium opinions, commenting that, "[a]lthough these unpublished opinions do not bind Wisconsin courts, Wis. Stat. Sec. 809.23(3), we consider them persuasive indicators of how Wisconsin's highest court might decide this issue..."52 However, despite this use of unpublished opinions by the Seventh Circuit, nothing in these decisions appears to release parties from abiding by Seventh Circuit rules governing the citation of unpublished opinions of other courts.

    A Proposed Change to the Federal Rules

    Mia Sefarbi

    Sefarbi

    Kira L. Zaporski

    Zaporski

    Mia Sefarbi, U.W. 1987, formerly practiced law in southeastern Wisconsin with the Law Offices of Steven M. Epstein. In August 2002 she joined Marquette University Law Library as a participating faculty member and reference/instructional services librarian.

    Kira L. Zaporski, U.W. 1993, formerly practiced law in Wisconsin. In September 2003 she joined the faculty of Loyola University Law School in Chicago, as a reference/electronic services librarian. She is a member of the State Bar of Wisconsin and its Communications Committee and the Law Librarians Association of Wisconsin.

    The Seventh Circuit rule against citing unpublished orders may change in the next two years. Under a proposed federal rule, the four circuits that currently restrict the citation of unpublished opinions would be required to allow such citation. Federal Rule of Appellate Procedure 32.1, if adopted, would provide: "[n]o prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as `unpublished,' `not for publication,' `nonprecedential,' `not precedent,' or the like, unless that prohibition or restriction is generally imposed upon the citation of all judicial opinions, orders, judgments, or other written dispositions."53 The Seventh Circuit's Rule 53(e) would certainly run afoul of proposed Rule 32.1, as currently drafted.

    Proposed Rule 32.1 has been the subject of much debate, especially in the four circuits that would be required to modify their local citation rules.54 Some legal experts have pointed out that although all circuits would be required to permit citation of unpublished opinions, nothing in the language of the new rule would prevent any circuits from continuing to deny precedential standing to unpublished opinions.55

    As of the writing of this article, the advancement of Rule 32.1 is essentially on hold. In April 2004, the Federal Rules Advisory Committee approved Rule 32.1. The Standing Committee on Rules of the U.S. Judicial Conference met in June 2004 to decide whether to advance Rule 32.1 to the entire Judicial Conference. However, instead of advancing the proposed rule, the committee chose to refer Rule 32.1 back to an advisory committee for further study. The current status of Rule 32.1, and related information, is available on the U.S. Courts' Web site.56

    Conclusion

    The rules governing citation to unpublished materials in Wisconsin state forums are ambiguous in a variety of respects, but generally the resolution of those ambiguities, whether express or implied, reflects a policy of rigidly restricting citation to unpublished Wisconsin Court of Appeals decisions in any Wisconsin forum. At the same time, state courts appear to apply a liberal admissions policy for all other unpublished materials. Similarly, the Seventh Circuit's no-citation rule restricts citing unpublished Seventh Circuit decisions while generally permitting citation to unpublished opinions from other courts. Litigants should weigh these considerations when deciding whether to cite unpublished opinions.

    Endnotes

    1The Wisconsin Supreme Court denied a petition to amend Wis. Stat. section 809.23(3) on July 1, 2003. In re the Amendment of Wis. Stat. Sec. (Rule) 809.23(3), 2003 WI 84, 261 Wis.2d xiii.

    2Brandt v. LIRC, 160 Wis. 2d 353, 363, 466 N.W.2d 673, 677 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992).

    3Id. at 364.

    4Id.

    5State v. Higginbotham, 162 Wis. 2d 978, 997-98, 471 N.W.2d 24 (1991).

    6See id.

    7Lorino's Car Wash West Inc. v. Becker Trust No. 1, No. 97-1858-FT, 1997 WL 768881, at *3 (Wis. Ct. App. Dec. 16, 1997) (unpublished decision).

    8State v. Cooper, 2003 WI App 227, ¶ 24, 267 Wis. 2d 886, 672 N.W.2d 118.

    9State v. Franklin, No. 85-1908, 1985 Wisc. App. LEXIS 3715, at *3 (Wis. Ct. App. July 9, 1986) (unpublished decision).

    10Cooper v. Capitol Indem. Corp., No. 95-1433, 1995 WL 635190, at *1 (Wis. Ct. App. Oct. 31, 1995) (unpublished decision).

    11Metropolitan Holding Co. v. Board of Review, 167 Wis. 2d 134, 141, 482 N.W.2d 654 (Ct. App. 1992), rev'd on other grounds, 173 Wis. 2d 626, 495 N.W.2d 314 (1993).

    12See State v. Gary M.B., 2003 WI App 72, ¶ 13 & n.4, 261 Wis. 2d 811, 661 N.W.2d 435, aff'd, 2004 WI 33, 270 Wis. 2d 62, 676 N.W.2d 475. But see State v. Gary M.B., 2004 WI 33, ¶ 44 n.16, 270 Wis. 2d 62, 676 N.W.2d 475 (Abrahamson, J., dissenting) (observing that the Wisconsin Supreme Court has not decided the question of whether a court of appeals decision has precedential value after it has been reviewed by the Wisconsin Supreme Court. The dissenting justice wrote that in her current view, a court of appeals decision has no precedential value once reviewed).

    13Wisconsin Ct. App. IOP VI (7) (Oct. 14, 2003).

    14Id. at IOP VI(7)(d).

    15State v. Pete, No. 87-1106-CR, 1988 WL 84143, at *1 (Wis. Ct. App. June 9, 1988) (unpublished decision).

    16Cooper, 1995 WL 635190, at *2.

    17The Bluebook: A Uniform System of Citation (Bluebook) (Harvard Law Review et al. eds., publisher 17th ed. 2000).

    18Wisconsin Guide to Citation § 6 (State Bar CLE Books 5th ed. 2001).

    19See Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin § 17.4 (State Bar CLE Books 3rd ed. 2002).

    20Brandt, 160 Wis. 2d at 365.

    21Id. at 363.

    22Id. at 364.

    23Kuhn v. Allstate Ins. Co., 181 Wis. 2d 453, 467-68, 510 N.W.2d 826 (Ct. App. 1993), aff'd, 193 Wis. 2d 50, 532 N.W.2d 124 (1995).

    24See, e.g., Seebach v. Pub. Serv. Comm'n, 97 Wis. 2d 712, 728-729, 295 N.W.2d 753 (Ct. App. 1980); Friendship Village v. City of Milwaukee, 181 Wis. 2d 207, 225, 511 N.W.2d 345 (Ct. App. 1993).

    25See, e.g., Wis. Stat. § 101.143(6s) (arbitral awards under that section may not be cited as precedent in any other proceeding "before the department or before any court"); Wis. Stat. § 230.44(bm) (arbitrator's decision under that section "may not be cited as precedent in any other proceeding before the commission or before any court").

    26Supra note 18, at § 8.

    27In re Disciplinary Proceedings Against Breitenbach, 167 Wis. 2d 102, 118-19, 482 N.W.2d 52 (1992) (Wisconsin Supreme Court order attached as appendix cites an unpublished order).

    28In re Disciplinary Proceedings Against Winter, 171 Wis. 2d 76, 86-87, 490 N.W.2d 523 (1992) (noting without disapproval a party's citation to an unpublished supreme court resolution and distinguishing the unpublished authority in the same manner as the party's published authority).

    29Telephone interview with Cornelia Clark, Clerk of the Wisconsin Supreme Court (Apr. 23, 2004). But see Melissa M. Serfass & Jessie L. Cranford, Federal and State Court Rules Governing Publication and Citation of Opinions, 3 J. App. Prac. & Process 250, 285 (2001) (citing 2001 telephone interview with clerk's office for proposition that unpublished supreme court orders may not be cited as authority).

    30Predick v. O'Connor, 2003 WI App 46, ¶ 12 n.7, 260 Wis. 2d 323, 660 N.W.2d 1.

    31Lane v. Sharp Packaging Sys. Inc., 2002 WI 28, ¶ 30 n.11, 251 Wis. 2d 68, 640 N.W.2d 788.

    32Keip v. Wis. Dep't of Health & Family Serv., 2000 WI App 13, ¶ 18 n.14, 232 Wis. 2d 380, 606 N.W.2d 543.

    33For an overview of Wisconsin opinions reflecting citation of unpublished out-of-state material by either counsel or the decision-maker, see Memorandum of Petitioner Christopher G. Wren in Support of Petition for an Order Amending Wis. Stat. § (Rule) 809.23(3) at 11 n.17; In re Amendment of Wis. Stat. Sec. (Rule) 809.23(3), 2003 WI 84, 261 Wis. 2d xiii (No. 02-02) (held by Marquette University Law Library).

    34See Bldg. & Constr. Trades Council of South Cent. Wis. v. Waunakee Cmty. Sch. Dist., 221 Wis. 2d 575, 582-83, 585 N.W.2d 726 (Ct. App. 1998) (disregarding unpublished cases from the Ohio appellate courts as "neither precedential nor persuasive in any degree" even though at the time of the decision such unpublished decisions were persuasive authority in the issuing Ohio jurisdiction pursuant to Ohio Sup. Ct. R. for Reporting Op. 2(G) (West, WESTLAW through Jan. 17, 1999) (amended 2002)).

    35State v. Zivcic, 229 Wis. 2d 119, 128, 598 N.W.2d 565 (Ct. App. 1999).

    36For a review of those rules as of 2003, see Stephen R. Barnett, No-Citation Rules Under Siege: A Battlefield Report and Analysis, 5 J. App. Prac. & Process 473 (2003).

    37See Territory of Guam v. Yang, 800 F.2d 945, 947 & n.2 (9th Cir. 1986) (in construing law of foreign jurisdiction, court defers both to that jurisdiction's interpretation of substantive law and to its understanding of what constitutes the decisional law).

    38See, e.g., State v. Laurin, No. 00-1042-CR, 2000 Wisc. App. LEXIS 1020, ¶ 13 (Wis. Ct. App. Oct. 18, 2000) (unpublished decision).

    39See, e.g., Aurora Med. Group v. Dep't of Workforce Dev., Equal Rights Div., 2000 WI 70, ¶ 12 n.9, 236 Wis. 2d 1, 612 N.W.2d 646.

    40Kuhn v. James, No. 96-1611, 1997 Wisc. App. LEXIS 611, at *9 n.2 (Wis. Ct. App. June 3, 1997) (unpublished decision).

    417th Cir. R. 53(b)(2)(iv).

    42State ex rel. Gendrich v. Litscher, 2001 WI App 163, ¶ 7 n.6, 246 Wis. 2d 826, 632 N.W.2d 878.

    43Second Circuit Rule 0.23 bars citation of unreported statements accompanying dispositions in open court or by summary order "in unrelated cases before this or any other court." Ninth Circuit Rule 36-3(b) provides that "[u]npublished dispositions and orders of this court may not be cited to or by the courts of this circuit" with certain enumerated exceptions. Federal Circuit Rule 47.6(b) bars citing as precedent an opinion or order that has been designated as one not to be cited as precedent.

    44See 7th Cir. R. 53(b) ("orders shall not be published and opinions shall be published").

    45Aetna Cas. & Surety Co. v. Kerr-McGee Chem. Corp., 875 F.2d 1252, 1255 n.2 (7th Cir. 1989).

    46Id.

    47Payne v. Pauley, 337 F.3d 767, 780 (7th Cir. 2003).

    48Anderson v. Romero, 72 F.3d 518, 525 (7th Cir. 1995).

    49Id.

    50Aetna, 875 F.2d at 1255 n.2.

    51184 F.3d 699, 703 (7th Cir. 1999).

    52Shea v. Smith, No. 99-C-0456-C, 2000 WL 1875733 (7th Cir. 2000) (table) (unpublished opinion).

    53Proposed Fed. R. App. P. 32.1(a).

    54For more information on this debate, see www.nonpublication.com, U.S. Courts' rules Web site at www.uscourts.gov/rules, and In re Amendment of Sec. (Rule) 809.23(3), Stats., 2003 WI 84, ¶ 52 n.13, 261 Wis. 2d xii (Abrahamson, J., dissenting).

    55See sources cited id.

    56Refer to http://www.uscourts.gov/rules, under "Federal Rulemaking."




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