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Briefs – Citing Unpublished Opinion

State ex rel. Michael J. Gendrich v. Litscher, 2001 WI App 163

Issue: Whether an unpublished decision may be cited for its “persuasive” value.

Holding: ¶7 n. 6:

We acknowledge that the cited order from the Seventh Circuit is an ‘unpublished opinion.’ However, the Seventh Circuit’s rule only prohibits citation of an ‘unpublished opinion’ as precedent in any federal court in that circuit. 7th Cir. R. 53(b)(2)(iv). We are citing to the opinion not for its precedential value but for its persuasive interpretation of Wisconsin law. Leverence v. U.S. Fid. & Guar., 158 Wis. 2d 64, 91, 462 N.W.2d 218 (Ct. App. 1990).

Note: Rule 809.23(3) precludes citation “as precedent or authority” of any unpublished opinion. Federal cases aren’t binding on Wisconsin state law in any event, but as Leverance itself recognizes, they can have “persuasive authority.” So, by citing an unpublished case for the very purpose the rule expressly prohibits — citation “as precedent or authority” — this decision for all practical purposes abrogates the rule. Why can’t you now cite an unpublished Wisconsin case as authority “for its persuasive interpretation of Wisconsin law”? To be sure, you can’t: you will run a severe risk of fine and/or public rebuke. But it is very to justify the distinction between foreign and Wisconsin unpublished cases, given that the rule itslef makes no such textual distinction.)

 

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