Wisconsin Lawyer: Legal Research: To Cite or Not to Cite: Should Wisconsin Permit Citing of Unpublished Opinions?:

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July 18, 2008

Legal Research: To Cite or Not to Cite: Should Wisconsin Permit Citing of Unpublished Opinions?

On Oct. 14, the supreme court will consider citing unpublished decisions.

Legal Research

To Cite or Not to Cite: Should Wisconsin Permit Citing of Unpublished Opinions?

Wisconsin may be on the cusp of joining several other jurisdictions that permit citation of unpublished decisions for their persuasive value. Both sides to the debate hold strong views as to the current rule's fairness, economic impact, and effect on judicial administration. The current rule is not obeyed uniformly nor are its breaches sanctioned equally. At a minimum, the rule is ripe for reassessment.

by Beth Ermatinger Hanan

Sidebar:

On Oct. 14, 2008, the Wisconsin Supreme Court will consider a fourth request to permit citation of unpublished Wisconsin appellate opinions as persuasive authority. The courtroom is likely to be full of judges and attorneys arguing the pros and cons of changing the noncitation rule.

Currently, Wis. Stat. (Rule) section 809.23(3) restricts citation of Wisconsin court of appeals authority to published opinions, with limited exceptions:

"Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of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 rule was adopted in 1978, when the Wisconsin Court of Appeals was created. The rule 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 research¹ Attorneys who violate the rule are subject to sanction²

On Jan. 25, 2008, the Wisconsin Judicial Council filed Petition 08-02, which asks the supreme court to expand the opportunities for citation by adopting the following rule:

"Citation of Unpublished Opinions. (a) An unpublished opinion may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of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 (a), an unpublished opinion may be cited for its persuasive value. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state, and a court need not distinguish or otherwise discuss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 rule, as stated in the Note to the Judicial Council Petition, is that unpublished Wisconsin appellate opinions increasingly are available in electronic form and the potential for unfairness and unequal access is therefore reduced. In addition, the proposed loosening 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, 2007³

Requests to Change the Rule

The supreme court has become somewhat familiar with this topic. During this past term, the court determined whether the court of appeals can overrule an unpublished decisio⁴ (it cannot), and two weeks later, a justice cited an unpublished decision in her dissent, not for any "precedential purposes but as a recent example of certain similar facts."⁵

The last time the court declined to change the noncitation rule was in July 2003. The court denied a petition submitted by a court of appeals judge and several attorneys. That petition sought to amend the rule to allow for citation of unpublished opinions for persuasive purposes only⁶

The primary arguments brought forth in 2003 for and against citation will be considered once again this October, although perhaps they will be joined by federal experience data (for support). The 2003 arguments favoring change were that 1) public policy favored expanded citation; 2) unpublished opinions were already widely available, referred to by practitioners, and often relied on sub silentio by judges; and 3) noncitation threatened the rule of treating like cases similarly and eroded confidence in the justice system⁷

Beth Ermatinger Hanan, U.W. 1996, is an appellate and trial practitioner and is managing member of Gass Weber Mullins LLC, Milwaukee. She also is vice chair of the Wisconsin Judicial Council. The views expressed in this column are hers and are not meant to represent any position, formal or informal, of the council itself.

The 2003 arguments against expanding citation were that 1) the current rule was working well; 2) the scope and cost of legal research would increase and create new professional obligations for lawyers; and 3) the change would increase the work of an already-busy court of appeals⁸

Some proponents of keeping the limited citation rule cite stare decisis as a basis to avoid change. But stare decisis is not a doctrinal hurdle in a procedural rules hearing. The doctrine is limited to case precedent and disputes between parties⁹ Thus, a supreme court constituted in 2008 with three different members than the 2003 panel is a relatively fresh audience. The court is free to consider all arguments for and against permitting expanded citation and bringing Wisconsin in line with the federal courts and many other states.

Last time around, Justice Bradley wrote a brief concurrence, stating that she did not view the perceived benefits as outweighing the potential adverse consequences, at least at that time¹⁰ Justice Sykes wrote a full-blown concurrence, which was joined by Justice Wilcox and Justice Bablitch. Chief Justice Abrahamson wrote a detailed dissent, which was joined by Justice Crooks. Although no participant in the Sykes concurrence remains on the court, their rationales, described below, are likely to be addressed again this year.

Justice Sykes concluded that the proposed change would be a "major amendment to an important foundational appellate rule."¹¹ Justice Sykes was concerned that expanding the rule would interfere with the court of appeals' ability to develop a consistent body of appellate case law and perhaps decrease the quality of its work product¹²

The Sykes concurrence discussed at length the two earlier efforts to change the noncitation rule. In 1989, the State Bar of Wisconsin filed a petition, also supported by the court of appeals, requesting that citation of unpublished opinions be permitted "for persuasive and informational purposes." The supreme court denied that request, essentially reaffirming the original justifications for adopting the rule: 1) The type of opinion written for the benefit of the parties is different from the type written for publication, and the former could require substantial revision before publication. 2) If citation were allowed, database services would develop and force treatment of unpublished opinions in the same manner as published opinions. 3) Permitting citation gives an advantage only to persons who know about the particular case. 4) An unpublished opinion is not new authority but merely a repeated application of a settled rule for which there is ample precedent¹³ The court added, shortly thereafter, that the noncitation rule "is essential to the reduction of the overwhelming number of published opinions and is a necessary adjunct to economical appellate court administration."¹⁴

While Justice Sykes was concerned about the potential for added cost to parties, she also reiterated the Tamminen v. Aetna focus, which was an unwillingness to unduly burden the courts. She perceived that citation would interfere with the court of appeals' ability to strike the right balance between its primary, error-correcting function and its secondary, law-developing function. She feared that citing unpublished opinions for persuasive value would create a second tier of quasi-precedential case law, crediting the assumption that appellate judges would spend more time on factual development of unpublished decisions to avoid future misapplication because unpublished court opinions are more influential than other persuasive sources¹⁵

In contrast, the Abrahamson dissent found it difficult to justify a system that permits parties to cite virtually anything except the court's own unreported opinions¹⁶ In particular, the dissent focused on policy concerns: Failing to permit citation would seriously threaten the principle that like cases be treated alike and would render the court of appeals seemingly unaccountable, thereby undermining trust and confidence in the judiciary¹⁷ Unreported opinions already are used and relied on by lawyers and judges¹⁸ Changing the rule to expressly permit such use would add transparency to the process.

The dissent particularly disagreed with the proposition that if unreported opinions were citable, appellate judges would spend more time writing them¹⁹ Such opinions were already read and used by judges and attorneys alike, even if those opinions were not fully citable²⁰ Such "covert" use did not appear to affect the time spent writing those opinions, and in those jurisdictions where citation was permitted, dire consequences had not ensued. The dissent also hinted at constitutional hurdles to proscribing citation²¹

Interest Groups and New Data May Prompt Court to Permit Citation

When the 1989 petition was considered, no legal aid, public interest, or consumer groups submitted position statements about the proposal²² Nor do the 2003 concurrences or dissent reflect that such groups participated in the discussion that year. If one purpose of the current rule is to level the playing field between large and small law firms, or between wealthy clients and economically disadvantaged clients, perhaps such interest groups will participate in this latest effort.

Importantly, if the court hearing the 2008 petition decides to expand the citation rule, it need not adhere strictly to the current Judicial Council proposal. The court could adopt the citation rule with one or more conditions attached, as some other jurisdictions have done. For instance, the court could limit citable unpublished decisions on a prospective basis, as the federal rule does. The court could allow citation for informational purposes. (An "informational" purpose is arguably different from a "persuasive" purpose, at least as viewed by some jurisdictions.) If the court decides to expand the citation rule, it could impose other conditions as well, such as requiring that copies of cited unpublished authorities be filed and served. Or, the court could add restrictions, such as requiring parties to identify authority as unpublished during their oral arguments. Whether such potential amendments are considered will depend in part on position statements submitted by interested entities.

If the court changes the rule, one thing is certain: Data will accumulate that either support or weaken a number of the theoretical objections to changing the rule. For instance, by comparing court workload statistics before and after the rule change, one can track whether the court of appeals alters the volume of opinions it designates for publication and even whether the pace of case terminations slows down²³ Lawyers can track whether they truly are billing more for the legal research they perform, once they are free to add unreported Wisconsin appellate opinions to the existing wide array of citable persuasive authority. In some instances, being able to cite unreported Wisconsin opinions persuasively may eliminate the need to stitch together an argument based on non-Wisconsin persuasive sources.

If the court changes the rule, the Wisconsin experience is likely to be positive. Before the federal rule change, Professor Stephen R. Barnett of Washington and Lee University surveyed attorneys in federal jurisdictions that permitted citation. While the frequency of citation to unpublished opinions varied, no survey respondents suggested there was too much citation of unpublished opinions in their jurisdictions²⁴ Moreover, virtually all survey respondents stated they had regularly researched unpublished opinions, and any additional research burden was minimal or insignificant. The Barnett study did not reveal any litigants who attempted to blur the line by arguing that unpublished opinions should be treated as precedential and not merely persuasive.

The Oct. 14, 2008, hearing is open to the public. If you cannot attend in person, find out if your State Bar section or committee is submitting a position statement, and share your views with your State Bar leaders. The debate will be the richer for it.

Order 08-02 setting the Oct. 14 hearing, and the Judicial Council Petition 08-02 to change the citation rule, are published in the Supreme Court Orders section of this issue of Wisconsin Lawyer. Persons interested in submitting position statements on this proposal should send them to the Clerk of Supreme Court, 110 E. Main St., Suite 215, P.O. Box 1688, Madison, WI 53701-1688.

Endnotes

¹Wis. Stat. (Rule) § 809.23, Judicial Council Committee Note, 1978. The court of appeals held that the bar against citation applied only to court of appeals decisions. Brandt v. LIRC, 160 Wis. 2d 353, 363, 466 N.W.2d 673 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992).

²See, e.g., Hagen v. Gulrud, 151 Wis. 2d 1, 8, 442 N.W.2d 570 (Ct. App. 1989); Wis. Stat. (Rule) § 809.83.

³See Note to Petition 08-02.

⁴City of Sheboygan v. Nytsch, 2008 WI 64, ¶ 5, __ Wis. 2d __, 750 N.W.2d 475 (directing court of appeals to strike portion of footnote in which it concluded that unpublished decision on which circuit court had relied was wrongly decided; see City of Sheboygan v. Nytsch, 2006 WI App 191, ¶ 6, 296 Wis. 2d 73, 722 N.W.2d 626).

⁵Below v. Norton, 2008 WI 77, ¶ 84 n.17, __ Wis. 2d __, 751 N.W.2d 351 (Bradley, J., dissenting) (citing Aslani v. Country Creek Homes Inc., 2008 WL 220714, No. 2007AP503 (Wis. Ct. App. Jan. 29, 2008) (unpublished limited precedent opinion) (review pending).)

⁶Petition 02-02 was submitted by then-Judge Patience Roggensack of the District IV court of appeals, Dean Howard B. Eisenberg, and two lawyers, Christopher Wren and Warren Weinstein, all in their individual capacities. See 2003 WI 84.

⁷2003 WI 84, ¶ 5.

⁸Id. ¶ 4.

⁹See Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶¶ 41-44, 281 Wis. 2d 300, 687 N.W.2d 417.

¹⁰Id. ¶ 11.

¹¹2003 WI 84, ¶ 12.

¹²Id. ¶ 14.

¹³In re Amendment of Section (Rule) 809.23(3), Stats., 155 Wis. 2d 832, 833, 456 N.W.2d 783 (1990).

¹⁴Tamminen v. Aetna Cas. & Sur. Co., 109 Wis. 2d 536, 563, 327 N.W.2d 55 (1982).

¹⁵2003 WI 84, ¶ 37.

¹⁶Id ¶ 43.

¹⁷Id ¶ 45.

¹⁸The Memorandum of Attorney Wren, submitted with Petition 02-02, listed numerous court of appeals and supreme court decisions citing unpublished opinions for "illustrative" or other purposes.

¹⁹2003 WI 84, ¶ 73.

²⁰The court of appeals vividly affirmed its awareness of the practice: "This court is not so naïve as to believe that unpublished opinions, whether one-judge opinions, per curiam opinions or authored opinions sit in a file serving as dinner for book lice. [A tiny, soft-bodied wingless psocoptera, that actually feeds on molds and other organic matter found in ill-maintained works .…]" City of Sheboygan v. Nytsch, 2006 WI App 191, ¶ 18 n.6, 296 Wis. 2d 73, 722 N.W.2d 626.

²¹2003 WI 84, ¶ 78. For discussion of certain constitutional considerations in preventing citation to court work-product, see, for example, Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) (dismissed on en banc review because of mootness); Separation of Powers and the Horizontal Force of Precedent, 78 N.D. L. Rev. 1075(2003), and Note, No-Citation Rules as a Prior Restraint on Attorney Speech , 103 Col. L. Rev. 1202 (2003).

²²155 Wis. 2d at 842.

²³The clerk of court for the supreme court and the court of appeals maintains annual workload statistics for both courts, available on the court's Web site, www.wicourts.gov.

²⁴The Dog That Did Not Bark: No-Citation Rules, Judicial Conference Rulemaking, and Federal Public Defenders, 62 Wash. & Lee L. Rev. 1491 (Fall, 2005).

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