*1 IN MATTER OF the AMENDMENT OF SEC- (RULE) 809.23(3),

TION STATS.

Supreme Court Filed June 1990.

(Also reported 783.) in 456 N.W.2d PER CURIAM. petition

The State Bar of Wisconsin filed a August seeking (Rule) 31, 1989 the amendment of sec. 809.23(3), provides unpublished opi- Stats., which appeals precedential nions of the court of are of no value prohibits opinions any the citation of those in Wis- precedent authority, except support consin court as judicata, estoppel a claim res collateral or law of the case.1 The State Bar asks that the rule be amended to permit unpublished opinions to be cited for purposes, provided person citing and informational contemporaneously provides them the court and all opposing parties copy opinions, with a as well as copies of all other of the court of person knowledge, of which that the hold- ings directly of which are adverse to the cited they on the issue for which are cited.

1 Eight of the federal circuits have similar rules prohibiting decisions, the citation of including the Circuit, Illinois, Seventh comprising Indiana and Wisconsin. Two other circuits "disfavoring" have rules the citation of except purposes. decisions "Unpublished for those Dispositions: Problems of Appeals," Access and Use in the Courts of Federal Center, Judicial 1985.

Upon presented consideration of the matters at the *2 public on hearing proposed the amendment held March 21, 1990 response and the submissions made in to the amendment, proposed the court has determined that the petition (Rule) 809.23(3), Stats., to amend sec. be denied. adopted reasons for the which the rule

limiting unpublished opinions citation of in set forth the Judicial Council Committee's Note to the rule: type

1. The of opinion written for the benefit of parties opinion different from an written publication for often pub- should not be revision; lished without substantial cited, 2. If unpublished opinions could be services publish only unpublished opinions would develop soon forcing unpub- treatment opinions lished pub- the same manner as opinions thereby lished defeating purpose nonpublication;

3. Permitting unpublished opinions

gives advantage person an a who knows about not; over the case one who does 4. An unpublished opinion is not new authority only repeated application

but of a settled rule published for which is ample law there authority. expressions

The court continues to adhere to those general policy. Although attempts amendment having knowledge eliminate the advantage one not, opinion have over does one who only it the stage addresses matters that have reached require litigation, copy for it would of the cited opinion unpublished and all other known holdings directly with adverse to the relevant issue of the opinion oppos- cited to be furnished to the court and all ing parties. unpublished opinions Yet, if citation of were permitted persuasive purposes, and informational inequality persons knowing between opinions and those who did not would exist well before a present Indeed, matter reached the courts. it would be at legal representation, the outset of even matters never litigated. intended to be permitted

Moreover, if were purposes, to be cited for and informational lawyers rely published prece- would not be entitled to *3 advising concerning legal dent in clients their matters. Competent representation require could well research large body unpublished appellate opinions into a lest ultimately some of them be considered or informative on issues relevant to the client's matters. practitioner,

This additional burden on the with a client, concomitant increase in fees to the would not be by availability printing alleviated of services unpublished appellate opinions or their in inclusion legal availability automated research tools or at law equal: libraries. All law offices are not created differences geographical in location, client base and economic inequality ability practi- resources create an in the of a lawyer practicing tioner, whether a in alone a small town practicing large metrop- or one in a 35-member firm in easily affordably olis, to conduct the research needed adequate representation. for client cognizant potential

The court is also for unin- tended abuse inherent the citation of appellate opinions purposes for other than those cur- rently permitted. appellate might Trial courts and courts unwittingly give unpublished opinions more than weight they entitled, which merely they are because express the an reasoning tribunal on the Moreover, might same or similar issue. courts inadver- tently give appearance improperly on having relied precedent as for holdings their the same issue. Erosion of concept precedent in published embodied law great price decisional is too pay for the sake of informing persuading by or a court means of designed not for citation.

While we acknowledge arguments may that sound be and have been permitting made for opinions for persuasive pur- informational poses, they outweighed by the reasons we have enun- herein continuing ciated for to limit the citation of unpublished appellate support decisions to the of claims judicata, res estoppel collateral law of the case.

IT IS petition ORDERED that for amend- (Rule) 809.23(3), Stats., ment of sec. is denied. ABRAHAMSON, SHIRLEY S. J. I (dissenting). dissent because believe the court should have discussed open petition proceed decided the the rule ing. are, rule-making procedures The court's unfortu State ex Wisconsin nately, secrecy. shrouded See *4 Senate, rel. Hon. James P. v. Fiedler The Wisconsin 155 94, 117, (1990) (Abrahamson, Wis. 454 2d N.W.2d 770 J. Sentencing Guidelines, In re Felony dissenting); 120 198, 216-18, (1984) (Abraham Wis. 2d 353 N.W.2d 793 son, dissenting). J.

I disagree majority also with the on the substance of (the I join order. the State Bar Board Governors adopted proposal by margin per- of more than 60

cent), appeals1 the court of and the Milwaukee Bar Asso- ciation Committee in concluding Bench/Bar proposed adopted. rule should be I adopt the State proposed Bar's rule2 on a years. trial basis for two would ask the Judicial Council to monitor the operation of the new rule and report back to the court.

Nonpublication appellate of selected and no-citation of unpublished opinions have been hotly debated issues for many years at both the state and national levels. proposed Each problems solution to the by caused the ever increasing volume of opin- poses ions its own difficulties.3 Judge

1 Letterfrom appeals, then Chief of the court of Burton Scott, court, 20,1989, July A. to this dated in the court file In the 809.23(3) Matter the Amendment to Rule Appel the Rules Judge late Procedure. Chief William Eich of the court of appeared public hearing support at the proposed of the rule. (Rule) 809.23(3),

2 The rule amends sec. Stats. proposal present 1987-88. The retains the rule that opinions may any not be precedent cited court of this state as authority, though they may or support be cited to a claim of res judicata, estoppel, collateral proposal adds, law of the case. The "Unpublished opinions may also be cited for and infor purposes person mational if making unpub reference to the opinion contemporaneously provides the court and all parties opposing copy opinion with a copies of all other Appeals of the Court of of which the attor ney knowledge, had holdings directly of which are adverse to opinion upon the cited the issue for which it is cited." issues, see, 3 For e.g., Carrington, discussions of these Mea- Rosenberg, dor Appeal (1976); Walther, on Justice 35-43 Heffernan, Appellate Grove and Practice and Procedure in Wis (1986); Stienstra, consin ch. 17 Unpublished Dispositions: Problems (Federal Access and Use Appeals in the Courts 1985); Judicial Courts, Center Report National Center for State Unpublished Opinions Appeal Courts California *5 Bar proposal

The been researched and discussed years number of and is apparently of result widespread sentiment for change to meet new condi- tions. This time the second court has been asked permit to citation to In opinions. 1982 the petitioned Judicial Council the court to amend sec. 809.23(3) to allow citation to court of appeals opinions. discussing proposal After this behind doors, rejected closed this proposal the 1982 with- explanation. out study, After a 1984 the State Bar of Wisconsin it propose concluded that would not change 1989, consideration, the rule.4 In after further State Bar Wisconsin change concluded a was needed presented and this proposal.5 (1976); Grodin, Depublication The Practice California Court,

Supreme (1984); Reynolds 72 Calif. L. Rev. 514 Rich- man, The Non-Precedential Precedent —Limited Publication Appeals, No-Citation Rules in the United States Court 78 by (1978); Gerstein, "Law Elimination Colum. L. Rev. 1167 Depublication Court, Supreme in the 67 Judicature California 1984); Walther, (Dec./Jan. The Noncitation Rule and the 293 Decisis, Concept Stare Marq. (1978); Sullivan, 61 L. 581 Rev. Publish, To . . or (1985); Publish . Not to Lawyer 8 4 Milwaukee Andreani, Independent Opinions: Panels Choose Publishable A Solution to the Problems Selective Publication of California's System, (1981); Richman, An Reynolds 12 Pacific L.J. 727 Evaluation Limited Publication in the United States Courts Appeals: Reform, Price (1981); L. 48 U. Chi. Rev. 573 Ohio, Opinions and Seek Black, Hide Precedent: Phantom 50 Path (1981); Comment, A Snake in the U. Cinn. L. Rev. 477 Rule, U. the Law: The Seventh Circuit's Non-Publication 39 Pitt. (1977). Wisconsin, Bar of on Administration of 4 State Committee Report Unpublished Judiciary, Opinions, Final Justice and the Bull., August at Wis. Bar 40-41. Wisconsin,

5 Minutes, Governors, April Bar of Board of State *6 country emerging A across the that the consensus no-publication bar must reexamine and no- bench and new, enlarged and less- rules because of in Although services now available. expensive database 809.23(3), rule, supported I sec. no-citation 1978 presented I rule the fewest serious thought because changed problems, now conclude that conditions approaches innovative require experimenting with rules. new adopting

The four reasons for 1978 no-citation rule, today, upon majority longer which the relies no support stronger arguments the rule. The retaining rule, today adoption are for at least on a tried basis.

I. given One reason 1978 for the no-citation rules type opinion was that written for the parties opinion benefit of is different from an written publication.

I agree Judge Holloway with Chief Judges Bar- rett and Baldock of the Tenth Circuit Court of Appeals, who in dissenting adoption from the of the no-citation rule that circuit wrote that this reason is the "most suggested untenable of the notions for the no-citation rule.” The Chief Judge persuasively unpub- wrote that decisions, published decisions, lished like should not be 14, 1989, pp. 3-7, including 9, Attorney Feb. 1989 letter from Donald M. Lieb on behalf of the Bench/Bar Relations Committee proposal of the State Bar of Wisconsin and of the Milwaukee Bar Appeals; Assn Joint Bench and Bar Committee-Court Min- utes, Committee, Wisconsin, State Bench/Bar State Bar of 17, (p. 2), 26, (PP. 4-5), January 29, November 1988 March 1988 1988. from scrutiny analysis by shielded or attorneys or the public (See at large. unpublished statement, November 18, 1986, referred to in of App. U.S. Ct. 10th Cir. Rule 36.3, 28 U.S.C.A. p. Appeals U.S. Courts of Rules: II, Part Circuits, Seventh to Eleventh Circuit, Federal pamphlet, copy acquired full from Judge Chief Hol- loway's fax). via chambers

Recent published studies indicate that not greatly quality prece- do differ dential value and that are not nec- essarily time-saving Robel, tools for judge. Myth *7 Disposable Opinion: the Unpublished Opinions and Government Litigants in the United States Courts of Appeals, (1989). 87 Mich. L. Rev. 940

hHHH The second reason the court gave adopt- 1978 for the ing no-citation rule is that it to wanted inhibit ser- vices from publishing unpublished Experience decisions. shows unpublished that circulation of the opinions increases the Frank, demand for a rule allowing citation. Remarks the Ninth Circuit Judicial Conference, Before (Winter 1977). Judges' J. 10

Despite rule, the no-citation several services do "publish" unpublished opinions. In to being addition in weekly semi-monthly available and printed publica- tions (Appellate Opinions; Law Reporter), Wisconsin unpublished opinions are now available both Lexis and Westlaw computer information banks.

Contrary reasoning to adoption its its of the no- rule, part responsible this court is large computer lawyers services' providing with access to unpublished opinions. inception, After its appeals concluded that incorporating unpublished its (Lexis) computerized legal system

opinions in research opinions unpublished search its to enable it to litigants equal consistent treatment of ensure past writings. rapid 1981-82, In research and retrieval of appeals unsuccessfully sought state the court of after funding, (and, request upon court, this court appeals' approved accepting legislature) the court of grant two-year $100,000 the Evan P. and Marion from whereby Foundation, the Foundation would Helfaer Lexis service for the court underwrite incorporate appeals' the court of Lexis would library in the Lexis and research system.6

Unpublished opinions also available on micro- (which Supreme Library from Law fiche the State 82.01) pursuant SCR at an initial Court maintains supplements yearly per $25 with at cost about $250 computer Library provide year. Law will The State lawyers charge. at a Use searches reasonable signifi- along service with Lexis Westlaw microfiche cantly searching the costs of reduces opinions.

Furthermore, informal circulation of widespread. recently wrote a dissent to an decisions *8 judges. disqualification on of circuit order v. rel. Fire Co. Cir- ex National Union Insurance State County, A. Croix the Hon. James Court St. cuit for Presiding, Wendland, 90-0935-W, filed with Case No. Supreme May 29, 1990. The on the Clerk the Court opinion circulating. Adminis- has The State Court been opinion judges the to the chief trator distributed probability judges in will courts, all and the chief circuit judges the circuit around state. it to the court distribute Administration, 103 Department v. ex Moran 6 State rel. 311, (1981). 658 2d 307 N.W.2d Wis. order in reported

The was the newspapers, attorneys requested copies. have

The no-citation rule "is in honored its breach more times than not in Many the trial courts. [Wisconsin] judges trial have expressed their desire to have these opinions to nonprecedential citable them as authority."7 in Despite rules a number of federal appeal, courts of no-citation rule is apparently in sys- evaded the federal Robel, tem too. Myth the Disposable Opinion: Unpublished Opinions and Litigants Government in the United States Courts Appeals, 87 L. Rev. Mich. (1989). 945, n.24

(HHI—It— The third reason the gave 1978 for the no- citation rule is permitting the citation of opinions gives advantage person who about the knows case over one who does not.

I join majority opinion in advocating increased quality access to legal equal services and justice all litigants regardless of their economic status. believe, however,

I do not that our current no-cita- any tion rule appreciable equalizing on effect delivery legal individuals, per- services to low income areas, recipients sons rural or of services from smaller practitioners. firms or solo Furthermore there is no rea- son change to believe that a in the rule no-citation will poor part harm client who is or who lives a rural the state will put practitioner or the solo at a disadvantage.

The court does not know extent which attor- rely neys presently published offering legal when or how limited advice supra. Scott, Judge 7 See from Letter Chief note *9 practice. lawof the economics rule affect ques- on the latter court is silent the The record before attorneys prob- experiences justices' as own tion, ably the technology longer pertain economics because no any dramatically changed member of this since have public legal legal services, practiced aid, law. No court hearing appeared groups at the or consumer interest proposal. leads This silence this court about wrote the organizations view did not consumer me that to believe significant impact having proposal on the costs as this legal delivery of services. of the eliminating point the to Economic considerations Study prestigious Commit- The Federal no-citation rule. 1990) Report (April 2, tee its recent recommended nonpublica- appeal of review the federal courts the increasing light tion, "in of ease and no-citation rules Report, pp. decreasing 130-31. of database access." cost attorneys currently previously noted, to are able As all unpublished variety of from a wide obtain sources Wisconsin. goal equal proposed step the

The rule is toward legal present all Under access to services for citizens. lawyer rule a who knows about an decision may advising reasoning case use the without opposing rule counsel of the decision. The no-citation prohibit unpublished opinions; only does not it use prohibits acknowledging opinions. use requires attorney rule to who wishes unpublished opinion give copies use an of "all other which attorney knowledge, holdings which directly opinion upon adverse to the the issue for cited requirements it is which cited." The rule conforms Responsibility. of the Code of SCR Professional See regarding legal authority. 20:3.3 disclosure adverse *10 (composed The Board of Governors of the State Bar lawyers parts types of from all of the state and from all of practice) apparently concluded that a citation rule will improve delivery legal services for all.

IV. gave The fourth reason the court in 1978 for the no- unpublished opinion citation rule is that an authority is not new only repeated application but of a settled rule ample authority. of law for which there is Many unpublished opinions description, fit this but many do not. The authors of a treatise on Wisconsin appellate practice concluded that this fourth reason by Although to be "seems contradicted the evidence . . .. unpublished opinions] may precedents [the not shatter boldly propositions many law, set out new unpublished present significant decisions variations or meaningful explanations beyond go applica- that mere accepts tion of law."8 settled Indeed this court for review unpublished opinions year, indicating numerous each unpublished opinions merely repeated that not all application of a settled rule of law for which there is authority. ample majority opinion contends that citation of likely concept to erode the

precedent published embodied in law. I as decisional conclude that uncitable decision fosters the notion Heffernan, Appellate Pro 8 Walther, Practice and Grove and Wisconsin, (1986). cedure in 17-4 Songer Professor Donald R. reached a similar conclusion study opinions. his federal See Opinions in the U.S. Court Criteria Publication Songer, Empirical Reality, Appeals: Rules versus Formal 73 Judicature 1990). (April/May government persons, Allowing is a not law. that this parties authority as to cite cases promotes in similar factual situations the rule of law. Judge Holloway Judges Chief Barrett and Appeals, Court of Baldock the Tenth Circuit when dissenting adoption from the of the no-citation rule for persuasively argued rulings circuit, that "all of this precedents, not, court are sign any like it or and we cannot con- *11 by merely banning

of them to oblivion their judges believe, do, I citation." have come to any as those point litigant prior ruling who can to a of the court prevail and can demonstrate that he or she is entitled to justice under it should be able to do so as a matter of and judges point denying out, fundamental fairness. As these litigant right may this have overtones of "a constitu- infringement arbitrariness, tional because of the irra- tionality unequal treatment of the rule."9

I further believe that the limited citation promote greater consistency rule would making process in the decision- appeals.

in the court of The court of appeals recognized difficulty achieving consis- tency panels among sitting state, across the and it views its own examination of as a means helping consistency.10 ought lawyers achieve We to let help litigants the court of in this endeavor. Richman, The Non-Precedential Prece Reynolds 9 See dent —Limited Publication and No Citation Rules in the United Appeals, States Courts 1167, 1180, 78 Colum. L. Rev. n.74 (1978); Note, Unreported Decisions in the United States Courts Appeals, (1977); Supt., Jones v. 63 Cornell L. Rev. 141-145 Farm, Virginia (4th State 1972). 465 F.2d Cir. grants 10 Communications re from the P. Evan and Marion Helfaer Foundation. forth,

For the reasons I set adopt pro- posed rule on a trial basis for years. two therefore dissent.