The Wisconsin Supreme Court Amends Its Rules to Permit Citation of Unpublished Opinions, with Limitations

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heard the petition of the Wisconsin Judicial Council to amend Wisconsin Statue section 809.23(3), to permit citation of unpublished Wisconsin Court of Appeals opinions as persuasive authority.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Taking a cautious step into a national trend, yesterday the Wisconsin Supreme Court voted 6:1 to permit citation of unpublished authored appellate decisions, with several limitations.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  This means that parties and courts will be able to cite those unpublished authored opinions which are released on or after the planned effective date of the amended rule, July 1, 2009.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  The rule specifically will  provide that parties are not required to cite unpublished opinions.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.

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Suicide and Inheritance: A New Ruling by the Wisconsin Court of Appeals

Last week, the Fourth District Court of Appeals in Wisconsin ruled on a case involving a testator (Edward Schunk) who committed suicide and the inheritance rights of the family who survived him. Apparently, Edward was on a one-day pass from a hospital when he was found dead in a cabin which he owned. The death resulted from a single, self-inflicted shotgun blast to his chest. His will left property to his wife, to his daughter from his second marriage, and to some (but not all) of his six older children who were not Linda’s children. Five of those older children challenged the inheritance by the second wife (Linda) and child from that marriage (Megan) on the grounds that they had aided Edward in committing suicide, and thus should be barred from inheriting under a Wisconsin statute that forbids inheritance by persons who unlawfully and intentionally kill the decedent. Linda and Megan denied providing any help to the decedent’s suicidal act, and asserted that Edward had taken his gun and gone to the cabin without their knowledge.

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Responding to Racial Disparities in the Criminal Justice System

The Sentencing Project has just published a new edition of Reducing Racial Disparity in the Criminal Justice System, a manual for policymakers that describes numerous best practices for addressing disparities.  This publication should be of particular interest in Milwaukee and Wisconsin, which have some of the worst criminal justice disparities in the nation.  As The Sentencing Project described in a May publication, blacks in Milwaukee are seven times more likely than whites to be arrested for a drug offense, the second-highest such disparity among the forty-three major American cities analyzed.  Similarly, a state-level analysis by Human Rights Watch determined that blacks in Wisconsin are forty-two times more likely than whites to receive a prison term for a drug conviction, the highest such disparity among the thirty-four states studied.

Of course, to say that there are racial disparities is not to say the disparities are necessarily unwarranted.  For instance, if it turned out that blacks committed serious drug crimes more frequently than whites, then at least some of statistical disparities might be warranted.  Still, the magnitude of the racial disparities in Milwaukee and Wisconsin is so high, particularly in comparison to national norms, that there is good reason to believe we do indeed have a serious problem.

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