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Briefs – Citing Unpublished Opinion

Predick v. O’Connor, 2003 WI App 46

Issue/Holding: ¶12 n. 7:

We note that in this opinion we do cite to two unpublished opinions from other states. Wisconsin Stat. § 809.23(3) does not prohibit us from doing so. In Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), aff’d, 166 Wis. 2d 623, 480 N.W.2d 494 (1992), we held that the rule does not proscribe citation to circuit court decisions, noting “the statutory scenario of chapter 809 concerns appellate procedure generally and … Rule 809.23(3), read in context, concerns only court of appeals decisions.” Brandt, 160 Wis.2d at 363.

Though these comments refer to the court’s authority to cite unpublished decisions, it is obvious that the same logic would apply to citations made by the litigant; the ban on citing unpublished opinions, Rule 809.23(3), simply doesn’t distinguish between court and counsel. And, in an earlier case, the court reads into the rule authority to cite unpublished federal authority. The net effect, then, is that you can cite virtually any unpublished case originating anywhere — including a Wisconsin trial court decision — other than a case issued by the Wisconsin court of appeals itself, the very court that’s hearing the appeal. Whatever the theoretical merits of the no-cite rule, even its most enthusiastic proponents would have to acknowledge that this is a strange state of affairs.

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