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Briefs – Citing Unnpublished Opinions

State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03
For Cooper: John A. Birdsall

¶23. As a final matter, this court notes with dismay the multiple citations to unpublished opinions contained in Cooper’s appellate brief. The Rules of Appellate Procedure proscribe as follows:

Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of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.

Wis. Stat. Rule 809.23(3) (2001-02).¶24. Cooper’s appellate counsel attempts to minimize his culpability by locating such citations in footnotes and providing the disclaimer that citations to unpublished decisions are “for information and illustrative purposes only.” His use of the unpublished opinions to support his argument, however, reveals his intent to persuade this court with the improper citations.

¶25. When faced with such a blatant disregard for the Rules of Appellate Procedure in the past, this court has not hesitated to impose consequences. While “[w]e sometimes (perhaps too often) make allowances for appellate counsel’s failure to abide by these rules … [t]here are limits beyond which we cannot go in overlooking these kinds of failings.” State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992). Cooper’s appellate counsel has exceeded those limits.

¶26. We hereby impose a fine of $50 for each violation of Wis. Stat. Rule 809.23(3) (2001-02). We count nine citations to unpublished opinions in the appellant’s brief, for a total fine of $450.

Well. The court is obviously in high dudgeon over “such a blatant disregard for the” rules as to remind the court of what it has previously said. Make no mistake: this is a send-a-message fine, given both the accompanying rhetoric and the sheer amount. Cite an unpublished case and you can expect a sanction. Even so, a fine for citing unpublished cases is one thing; imposing a fine for each such cite is something else. Cite two unpublished cases and it’s like speeding in a work zone. The court’s ire is simply impossible to fathom.In the first place, the court of appeals isn’t always fastidious about enforcing the no-cite rule. Indeed, the court very recently let counsel off the hook with mere admonishment after counsel not merely cited an unpublished case but didn’t even reveal that it was unpublished. LaCrosse Co. v. Stacy C., 02-1620, 12 n. 4, the court noting that “there is currently a motion before the supreme court to change this rule”; but at the same time cautioning that “the current rule as quoted above is the only operative rule[;] (i)t must be observed by counsel.” The effort to change the rule was subsequently rejected, by order dated 7/1/03. 2003 WI 84. But that effort was no less pending at the time Cooper’s brief was written – which makes singling out its transgression unfair, at least in appearance./p>

Consider, too, the narrow reach of the no-cite rule, as construed by the court itself – you can cite non-precedential trial court decisions, Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), unpublished cases from other states, Predick v. O’Connor, 2003 WI App 46, ¶12 n. 7, and unpublished federal decisions, State ex rel. Gendrich v. Litscher, 2001 WI App 163, ¶7 n. 6. So, about the only thing you can’t do is inform the court of what it has itself said. Why, then, a draconian fine for violating a rule that serves little purpose? Perhaps it’s precisely because the rule serves no obviously useful purpose; excessive sanction is the best last defense in favor of a crumbling policy.

Finally, there are good-faith challenges that might be made to the rule. One federal court has held that a similar rule violates Art. III, Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), though that panel decision was subsequently dismissed on en banc review because the underlying appeal was moot, 235 F.3d 1054. (Wis. Const. Art. VII, § 2 tracks Art. III language, so the same argument could be made under the Wis. Const.) Another court disagrees, Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), but that doesn’t make a challenge to R. 809.23 any less in good faith. There’s a good discussion in this law review article: “SEPARATION OF POWERS AND THE HORIZONTAL FORCE OF PRECEDENT,” 78 Notre Dame L. Rev. 1075 (2003). And for an “angle” that, according to the author, “has not yet been closely examined by courts or commentators,” namely “that no-citation rules, which forbid all citation to unpublished opinions, tread upon the First Amendment rights of attorneys, and by extension, their clients,” see: NOTE: NO-CITATION RULES AS A PRIOR RESTRAINT ON ATTORNEY SPEECH, 103 Col. L. Rev. 1202 (2003).) (UPDATE: Efforts to create a uniform federal rule, allowing citation of unpublished opinions, has generated a good deal of controversy. See, generally, this site. For vigorous arguments in favor of the no-cite position, see these letters by Judge Kozinski and a majority of 7th Circuit judges. But for a concise but thoughtful view opposing the Kozinski position, go here. And for a scholarly analysis, “NO-CITATION RULES UNDER SIEGE: A BATTLEFIELD REPORT AND ANALYSIS,” go here. What this all shows is that this controvesry isn’t likely to go away antyime soon.

For a comprehensive discussion of what is, and is not, permissible, see Mia Sefarbi & Kira Zaproski, “Citing Unpublished Opinions in Wisconsin State and Federal Tribunals,” Nov. 2004 Wis. Lawyer, p. 14.

Detailed discussion in law review article, J. Lyn Entrikin Goering, Legal Fiction of the “Unpublished” Kind: The Surreal Paradox of No-Citation Rules and the Ethical Duty of Candor, 2005 Seton Hall Circuit Review No. 1 (The title is self-descriptive; from the article’s introduction: “The premise of the article is that nonuniform circuit rules restricting attorneys from citing the great majority of federal appellate opinions undermine the integrity of our judicial system by greatly diminishing the predictability of circuit court decisions.”).

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