As you probably already know, yesterday the Wisconsin Supreme Court heard the petition of the Wisconsin Judicial Council to amend Wisconsin Statue section 809.23(3), to permit citation of unpublished Wisconsin Court of Appeals opinions as persuasive authority.
Beth Hanan, managing member of Gass Weber Mullins and Vice Chair of the Wisconsin Judicial Council, kindly offered the following summary of the hearing and the court’s decision to amend the rule. (Please note that these are Beth’s own, individual comments and are not the comments or thoughts of the Judicial Council.)
Taking a cautious step into a national trend, yesterday the Wisconsin Supreme Court voted 6:1 to permit citation of unpublished authored appellate decisions, with several limitations. Amended Wis. Stat. (Rule) s. 809.23(3), like Fed. R. App. P. 32.1, will be prospective only. This means that parties and courts will be able to cite those unpublished authored opinions which are released on or after the planned effective date of the amended rule, July 1, 2009. When parties cite such opinions, they will have to file and serve copies of the opinions. The rule specifically will provide that parties are not required to cite unpublished opinions. Finally, the supreme court has ordered that a committee be formed to plan the roll out of the rule and devise a means of tracking its effectiveness or particular difficulties it may create. Those statistics will be used by the court to review the rule three years after its adoption.
The Wisconsin Judicial Council had petitioned for a broad rule change, but the version approved by all but Justice Ann Walsh Bradley bears little resemblance to the Council’s proposal. Nonetheless, on this fourth consideration of the topic, the court saw value in permitting citation of some unpublished opinions as persuasive authority. Especially compelling was the testimony of Judge Richard Brown, chief judge of the Wisconsin Court of Appeals. Judge Brown, speaking on his own behalf, described the pride of authorship taken by court of appeals judges who write authored opinions, whether in one-judge cases or three judge panels. Several other practitioners and citizens spoke at the hearing, some in favor, some opposed.
Particularly because the rule is prospective only, observers expect it will be quite some time before the effect of the rule change can be quantified. Limiting citability to authored opinions released after July 1, 2009 means that unpublished opinions from the first 30 years of the court of appeals will remain off-limits for most citation purposes. Statistics kept by the court system may reveal whether court of appeals judges will change their approach to deciding which unpublished opinions will be authored. Overall, it appears the court struck a careful balance by permitting expanded citation but with a measured start.
–Beth E. Hanan