imported post
ETA: Sorry, I was working on the same idea, a fuller reading of 809.23. I have not previously read much of the Eight Hundreds.
809.23 Rule (Publication of opinions).
(1) CRITERIA FOR PUBLICATION.
(a) While neither controlling nor fully measuring
the court’s discretion, criteria for publication in the official reports
of an opinion of the court include whether the opinion:
1. Enunciates a new rule of law or modifies, clarifies or criticizes
an existing rule;
2. Applies an established rule of law to a factual situation significantly
different from that in published opinions;
3. Resolves or identifies a conflict between prior decisions;
4. Contributes to the legal literature by collecting case law or
reciting legislative history; or
5. Decides a case of substantial and continuing public interest.
(b) An opinion should not be published when:
1. The issues involve no more than the application of well−
settled rules of law to a recurring fact situation;
2. The issue asserted is whether the evidence is sufficient to
support the judgment and the briefs show the evidence is sufficient;
3. The issues are decided on the basis of controlling precedent
and no reason appears for questioning or qualifying the precedent;
4. The decision is by one court of appeals judge under s.
752.31 (2) and (3);
5. It is a per curiam opinion on issues other than appellate
jurisdiction or procedure;
6. It has no significant value as precedent.
(2) DECISION ON PUBLICATION. The judges of the court of
appeals who join in an opinion in an appeal or other proceeding
shall make a recommendation on whether the opinion should be
published. A committee composed of the chief judge or a judge
of the court of appeals designated by the chief judge and one judge
from each district of the court of appeals selected by the court of
appeals judges of each district shall determine whether an opinion
is to be published.
(3) UNPUBLISHED OPINIONS NOT CITED. An unpublished opinion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.
(4) REQUEST FOR PUBLICATION.
(a) Except as provided in par.(b), any person may at any time file a
request that an opinion not recommended for publication or an
unreported opinion be published in the official reports.
(b) No request may be made for the publication of an opinion
that is a decision by one court of appeals judge under s. 752.31 (2)
and (3) or that is a per curiam opinion on issues other than appellate
jurisdiction or procedure.
(c) A person may request that a per curiam opinion that does
not address issues of appellate jurisdiction or procedure be withdrawn,
authored and recommended for publication. That request
shall be filed within 20 days of the date of the opinion and shall
be decided by the panel that decided the appeal.
(d) A copy of any request made under this subsection shall be
served under s. 809.80 on the parties to the appeal or other proceeding
in which the opinion was filed. A party to the appeal or
proceeding may file a response to the request within 5 days after
the request is filed.
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii;
1981 c. 390 s. 252; Sup. Ct. Order, 109 Wis. 2d xiii (1982); Sup. Ct. Order, 118 Wis.
2d xiii (1984); 1991 a. 189, Sup. Ct. Order No. 96−10, 208 Wis. 2d xiii (1997), Sup.
Ct. Order No. 01−04, 2001 WI 135, filed 12−20−01, eff. 7−1−02.
Judicial Council Committee’s Note, 1978: As with Rule 809.22 on oral argument,
a former practice of the Supreme Court is written into this Rule and formal criteria
established for it. The trend toward nonpublication of opinions is nationwide
and results from the explosion of appellate court opinions being written and published.
Many studies of the problem have concluded that unless the number of opinions
published each year is reduced legal research will become inordinately time−
consuming and expensive. Some argue that even accepting the premise that a court
may properly decide not to publish an opinion this should not prevent that opinion
from being cited as precedent since in common law practice any decision of a court
is by its nature precedent. Others argue that a court may try to hide what it is doing
in a particular case by preventing the publication of the opinion in the case.
There are several reasons why an unpublished opinion should not be cited: (1) The
type of opinion written for the benefit of the parties is different from an opinion written
for publication and often should not be published without substantial revision; (2)
If unpublished opinions could be cited, services that publish only unpublished opinions
would soon develop forcing the treatment of unpublished opinions in the same
manner as published opinions thereby defeating the purpose of nonpublication; (3)
Permitting the citation of unpublished opinions gives an advantage to a person who
knows about the case over one who does not; (4) An unpublished opinion is not new
authority but only a repeated application of a settled rule of law for which there is
ample published authority.
If it is desirable to reduce the number of published opinions, the only alternative
to having some opinions unpublished is to decide cases without written opinions.
This would be far worse because it would compound the problems of nonpublication
and at the same time take away from the parties the benefit of a written opinion
Section 752.41 (3) authorizes the Supreme Court to establish by rule the procedure
under which the Court of Appeals decides which of its opinions are to be published.
Sub. (1) provides for a committee of judges of the Court of Appeals to make this decision.
As a safeguard against any mistakes as to nonpublication, sub. (4) adopts the procedure
of the United States Court of Appeals for the Seventh Circuit in permitting a person
to request that an unpublished opinion be published. [Re Order effective July 1,
1978]
Judicial Council Committee’s Note, 1979: Sub. (4) is amended to delete the prior
requirement that a motion had to be filed in order to ask the Court of Appeals to have
one of its unreported opinions published in the official reports of the Court of
Appeals. Requiring a motion to be filed led to confusion in some instances because
the person requesting the opinion to be published may not be a party to the appeal
decided by the opinion and uncertainty can occur as to who should be served with a
copy of the motion and given an opportunity to respond. The requirement to file a
motion has been replaced by the need to simply make a request to the Court of
Appeals for publication of an unreported opinion. [Re Order effective Jan. 1, 1980]
Court of Appeals Note, 1997: A request under this paragraph [sub. (4) (c)] does
not affect the time under sec. (Rule) 809.62 for filing a petition for review. As in the
case of reconsideration of a Court of Appeals decision or opinion, withdrawal of an
opinion renders that opinion a nullity. Accordingly, a petition for review of that opinion
filed prior to its withdrawal is of no effect, except that the petitioner may incorporate
it by reference in a petition for review of the opinion subsequently issued in the
appeal or proceeding.
Court of Appeals Note, 1997: The Court of Appeals recognizes that many of its
opinions are issued as per curiam opinions that should not be published under sec.
(Rule) 809.23(1)(b)5, Stats. This amendment [of sub. (4)] establishes a procedure
whereby a person may request that a per curiam opinion be withdrawn, authored and
recommended for publication. The amendment also expressly states that an opinion
issued by a single judge of the Court of Appeals under sec. 752.31(2) and (3), Stats.,
will not be published.
Citing an unpublished opinion of the court of appeals subjected the attorney to a
$50 fine. Tamminen v. Aetna Casualty & Surety Co. 109 Wis. 2d 536, 327 N.W.2d
55 (1982).
Sub. (3) does not ban citation to circuit court opinions. Brandt v. LIRC, 160 Wis.
2d 353, 466 N.W.2d 673 (Ct. App. 1991).
Citation to an unpublished court of appeals decision to show a conflict between districts
for purposes of s. 809.62 (1) (d) is appropriate. State v. Higginbotham, 162 Wis.
2d 978, 471 N.W.2d 24 (1991).
A party’s invitation to the court of appeals to consider an unpublished opinion, or
even a naked citation to it, violates the letter and spirit of sub. (3). Kuhn v. Allstate
Co. 181 Wis. 2d 453, 510 N.W.2d 826 (Ct. App. 1993).
Only the supreme court has the power to overrule, modify, or withdraw language
from a published opinion of the court of appeals. Cook v. Cook, 208 Wis. 2d 166, 560
N.W.2d 246 (1997), 95−1963.
The rule against citing unpublished cases is essential to the reduction of the overwhelming
number of published opinions and is a necessary adjunct to economical
appellate court administration. Unless and until the nonpublication rule is changed,
violations of this rule will not be tolerated. State v. Milanes, 2006 WI App 259, 297
Wis. 2d 684, 727 N.W.2d 94, 06−0014.
The noncitation rule and the concept of stare decisis. Walther. 61 MLR 581 (1978).
Publication of court of appeals’ opinions. Scott. WBB July 1988.
Citing Unpublished Opinions in Wisconsin State and Federal Tribunals. Sefarbi
& Zaporski. Wis. Law. Nov. 2004.
