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Briefs – Citing Unpublished Decisions – Generally

City of Sheboygan v. Steven Nytsch, 2006 WI App 191, PFR filed 9/11/06

For Nytsch: Chad A. Lanning

Issue/Holding: ¶18 n. 6:

…This court is not so naïve as to believe that unpublished opinions, whether one-judge opinions, per curiam opinions or authored opinions sit in a file serving as dinner for book lice.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. See http://www.earthlife.net/insects/psocopta.html, last visited June 29, 2006 .] The ingenious methods members of the bench and bar employ to use unpublished opinions is well known to this court. …

The bench and bar must be guarded in their use of unpublished opinions because of the role of the Wisconsin Court of Appeals. …

Because an unpublished opinion is intended to be a one-time explanation to a limited audience, it will generally say almost nothing about the facts, because its intended audience—the parties and the lower court—are already familiar with the facts. Schiltz, supra, at 33. An appellate court’s holding cannot be understood outside of the factual context; without knowing the facts it is difficult to discern what an unpublished opinion actually held and easy for attorneys and judges to be misled. Id.

In rejecting the State Bar of Wisconsin’s petition to amend Wis. Stat. Rule 809.23 to permit citation to unpublished opinions for persuasive and informational purposes, our Supreme Court observed:

The court is also cognizant of the potential for unintended abuse inherent in the citation of unpublished appellate opinions for purposes other than those currently permitted. Trial courts and appellate courts might unwittingly give unpublished opinions more weight than that to which they are entitled, merely because they express the reasoning of an appellate tribunal on the same or similar issue. Moreover, courts might inadvertently give the appearance of improperly having relied on unpublished opinions as precedent for their holdings on the same issue.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.

In re Amendment of Section (Rule) 809.23(3), 155 Wis. 2d 832, 834-35, 456 N.W.2d 783 (1990). We recommend to the bench and bar that, if they insist on embracing the rationale of an unpublished opinion, they use the opinion as a starting line and not the finish line for their own independent research. Not only should they confirm that the authorities cited actually support the legal propositions in the unpublished opinion, they also should make sure that the authorities continue to represent a correct statement of the law. A member of the bench or bar who fails to independently develop his or her own legal rationale does so at his or her own peril.

A very lengthy footnote. Hard to know quite what to make of it. It’s obviously not an endorsement of ignoring the no-cite rule, but there does seem to be a sort of weary acceptance that bench and bar both will find ingenious methods to get around it.

UPDATE: The supreme court struck a portion of the above footnote (discussing an unpublished opinion), but left the above passages intact, 2008 WI 64:

¶5 … Can the court of appeals analyze——and effectively overrule——a decision that wholly lacks either precedential or persuasive authority, as a matter of law? Certainly, the court’s analysis explains why the court of appeals overruled the circuit court’s ruling. But, in so doing, the court implicitly acknowledges that the Westfield decision, albeit unpublished, does indeed have persuasive authority. This court is fully aware that appellate courts and lawyers alike look to unpublished decisions to bolster legal arguments and to ensure consistency in outcome. However, our current rules do not sanction this practice. Thus, we direct the court of appeals to strike the following language from footnote 6 ….

The court goes on to note:

¶7 There has been considerable debate at the state and national levels about rules prohibiting citation to unpublished decisions. The Wisconsin Judicial Council has filed a rule petition with this court regarding citation to unpublished decisions and the matter will be set for a public hearing in due course.[2] …

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