Vol. 77, No. 11, November
Citing Unpublished Opinions in Wisconsin State and Federal
Lawyers often ask, "When can I cite an unpublished opinion?" In this
article, the authors provide guidance for Wisconsin practitioners in
making that decision.
Mia Sefarbi & Kira
When is it appropriate to cite an unpublished opinion?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permit citing a particular unpublished opinion, even if only for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
Citing Unpublished Opinions in Wisconsin State Forums
1) Unpublished opinions of the Wisconsin Court of Appeals may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unpublished opinion is of no precedential value and for this reason may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held that the statutory bar against citing unpublished opinions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2) Citing to unpublished Wisconsin Court of Appeals decisions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Section (Rule) 809.23(3) is not a total gag rule.3 Unpublished court of appeals opinions may be cited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Nonetheless, counsel citing unpublished decisions of the Wisconsin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circumstances of [the unpublished] decision in deciding [the instant]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
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
Wisconsin Court of Appeals Opinions in Unstable Publication
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
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
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
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
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
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
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
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
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
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
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, 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
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
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
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
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
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.
5State v. Higginbotham,
162 Wis. 2d 978, 997-98, 471 N.W.2d 24 (1991).
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)
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
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
15State v. Pete, No.
87-1106-CR, 1988 WL 84143, at *1 (Wis. Ct. App. June 9, 1988)
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
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
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
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
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
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
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.
47Payne v. Pauley, 337
F.3d 767, 780 (7th Cir. 2003).
48Anderson v. Romero, 72
F.3d 518, 525 (7th Cir. 1995).
50Aetna, 875 F.2d at
51184 F.3d 699, 703 (7th Cir.
52Shea v. Smith, No.
99-C-0456-C, 2000 WL 1875733 (7th Cir. 2000) (table) (unpublished
53Proposed Fed. R. App. P.
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
56Refer to http://www.uscourts.gov/rules,
under "Federal Rulemaking."