Amendment of Section (Rule) 809.23(3), Stats., Matter of

• Decision Date: 25 June 1990
• Citation: 456 N.W.2d 783,155 Wis.2d 832
• Parties: In the Matter of the AMENDMENT OF SECTION (RULE) 809.23(3), STATS. . Opinion Filed
• Court: Wisconsin Supreme Court

Page 783

456 N.W.2d 783

155 Wis.2d 832

In the Matter of the AMENDMENT OF SECTION (RULE) 809.23(3), STATS.

Supreme Court of Wisconsin.

Opinion Filed June 25, 1990.

PER CURIAM.

The State Bar of Wisconsin filed a petition on August 31, 1989 seeking the amendment of sec. (Rule) 809.23(3), Stats., which provides that unpublished opinions of the Court of Appeals are of no precedential value and prohibits the citation of those opinions in any Wisconsin court as precedent or authority, except to support a claim of res judicata, collateral estoppel or law of the case. ¹ The State Bar asks that the rule be amended to permit unpublished opinions to be cited for persuasive and informational purposes, provided the person citing them contemporaneously provides the court and all opposing parties with a copy of the opinions, as well as copies of all other unpublished opinions of the Court of Appeals of which that person has knowledge, the holdings of which are directly adverse to the cited opinions on the issue for which they are cited.

Upon consideration of the matters presented at the public hearing on the proposed amendment held March 21, 1990 and the submissions made in response to the proposed amendment, the court has determined that the petition to amend sec. (Rule) 809.23(3), Stats., be denied.

The reasons for which the court adopted the rule limiting citation of unpublished appellate opinions in 1978 are set forth in the Judicial Council Committee's Note to the rule:

1. The type of opinion written for the benefit of the parties is different from an opinion written for publication and often should not be published without substantial revision;

2. If unpublished opinions could be cited, services that publish only unpublished opinions would soon develop forcing the treatment of unpublished opinions in the same manner as published opinions thereby defeating the purpose of nonpublication;

3. Permitting the citation of unpublished opinions gives an advantage to a person who knows about the case over one who does not;

4. An unpublished opinion is not new authority but only a repeated application of a settled rule of law for which there is ample published authority.

The court continues to adhere to those expressions of general policy.

Although the proposed amendment attempts to eliminate the advantage one having knowledge of an unpublished opinion would have over one who does not, it addresses only matters that have reached the stage of litigation, for it would require a copy of the cited unpublished opinion and all other known unpublished opinions with holdings directly adverse to the relevant issue of the cited opinion to be furnished to the court and all opposing parties. Yet, if citation of unpublished opinions were permitted for persuasive and informational purposes, the inequality between persons knowing of unpublished opinions and those who did not would exist well before a matter reached the courts. Indeed, it would be present at the outset of legal representation, even in matters never intended to be litigated.

Moreover, if unpublished opinions were permitted to be cited for persuasive and informational purposes, lawyers would not be entitled to rely on published precedent in advising clients concerning their legal matters. Competent representation could well require research into a large body of unpublished appellate opinions lest some of them ultimately be considered persuasive or informative on issues relevant to the client's matters.

This additional burden on the practitioner, with a concomitant increase in fees to the client, would not be alleviated by the availability of services printing the unpublished appellate opinions or their inclusion in automated legal research tools or availability at law libraries. All law offices are not created equal: differences in geographical location, client base and economic resources create an inequality in the ability of a practitioner, whether a lawyer practicing alone in a small town or one practicing in a 35-member firm in a large metropolis, to easily and affordably conduct the research needed for adequate client representation.

The court is also cognizant of the potential for unintended abuse inherent in the citation of unpublished appellate opinions for purposes other than those currently permitted. Trial courts and appellate courts might unwittingly give unpublished opinions more weight than that to which they are entitled, merely because they express the reasoning of an appellate tribunal on the same or similar issue. Moreover, courts might inadvertently give the appearance of improperly having relied on unpublished opinions as precedent for their holdings on the same issue. Erosion of the concept of precedent embodied in published decisional law is too great a price to pay for the sake of informing or persuading a court by means of opinions not designed for citation.

While we acknowledge that sound arguments may be and have been made for permitting citation of unpublished opinions for informational and persuasive purposes, they are outweighed by the reasons we have enunciated herein for continuing to limit the citation of unpublished appellate decisions to the support of claims of res judicata, collateral estoppel or law of the case.

IT IS ORDERED that the petition for the amendment of sec. (Rule) 809.23(3), Stats., is denied.

SHIRLEY S. ABRAHAMSON, Justice (dissenting).

I dissent because I believe the court should have discussed and decided the petition for the rule in an open proceeding. The court's rule-making procedures are, unfortunately, shrouded in secrecy. See State of Wisconsin ex rel. Hon. James P. Fiedler v. The Wisconsin Senate, 155 Wis.2d 94, 117, 454 N.W.2d 770 (1990) (Abrahamson, J. dissenting); In re Felony Sentencing Guidelines, 120 Wis.2d 198, 216-18, 353 N.W.2d 793 (1984) (Abrahamson, J. dissenting).

I also disagree with the majority on the substance of the order. I join the State Bar (the Board of Governors adopted the proposal by a margin of more than 60 percent), the court of appeals ¹ and the Milwaukee Bar Association Bench/Bar Committee in concluding that the proposed rule should be adopted. I would adopt the State Bar's proposed rule ² on a trial basis for two years. I would ask the Judicial Council to monitor the operation of the new rule and report back to the court.

Nonpublication of selected appellate court opinions and no-citation of unpublished opinions have been hotly debated issues for many years at both the state and national levels. Each proposed solution to the problems caused by the ever increasing volume of appellate opinions poses its own difficulties. ³

The Bar proposal has been researched and discussed for a number of years and is apparently the result of widespread sentiment for change to meet new conditions. This is the second time the court has been asked to permit citation to unpublished opinions. In 1982 the Judicial Council petitioned the court to amend sec. 809.23(3) to allow citation to unpublished court of appeals opinions. After discussing this proposal behind closed doors, this court rejected the 1982 proposal without explanation. After a 1984 study, the State Bar of Wisconsin concluded that it would not propose a change to the rule. ⁴ In 1989, after further consideration, the State Bar of Wisconsin concluded a change was needed and presented this proposal. ⁵

A consensus is emerging across the country that the bench and bar must reexamine no-publication and no-citation rules because of the new, enlarged and less-expensive database services now available. Although in 1978 I supported sec. 809.23(3), the no-citation rule, because I thought the rule presented the fewest serious problems, I now conclude that changed conditions require experimenting with innovative approaches and new rules.

The four reasons for adopting the 1978 no-citation rule, upon which the majority relies today, no longer support retaining the rule. The stronger arguments today are for adoption of the proposed rule, at least on a trial basis.

I.

One reason given in 1978 for the no-citation rules was that the type of unpublished opinion written for the benefit of parties is different from an opinion written for publication.

I agree with Chief Judge Holloway and Judges Barrett and Baldock of the Tenth Circuit Court of Appeals, who in dissenting from the adoption of the no-citation rule in that circuit wrote that this reason is the "most untenable of the notions suggested for the no-citation rule." The Chief Judge persuasively wrote that unpublished decisions, like published decisions, should not be shielded from scrutiny or analysis by attorneys or the public at large. (See unpublished statement, November 18, 1986, referred to in U.S. Ct. of App. 10th Cir. Rule 36.3, 28 U.S.C.A. p. 1093 (U.S. Courts of Appeals Rules: Part II, Seventh to Eleventh Circuits, Federal Circuit, 1990 pamphlet, full copy acquired from Chief Judge Holloway's chambers via fax.)

Recent studies indicate that published and unpublished opinions do not differ greatly in quality or precedential value and that unpublished opinions are not necessarily time-saving tools for the judge. Robel, The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals, 87 Mich.L.Rev. 940 (1989).

II.

The second reason the court gave in 1978 for adopting the no-citation rule is that it wanted to inhibit services from publishing unpublished decisions. Experience shows that circulation of the unpublished opinions increases the demand for a rule allowing citation. Frank, Remarks Before the Ninth Circuit Judicial Conference, 16 Judges' J. 10 (Winter 1977).

Despite the no-citation rule, several services do "publish" the unpublished opinions. In addition to being available in weekly and semi-monthly printed publications (Appellate Opinions; Wisconsin Law Reporter ), unpublished opinions are now available on...