Wisconsin’s citation rule stands tall, yet unsupported. It injures Wisconsin practitioners, their clients, and judges in all three levels of Wisconsin’s judicial branch. With little tolerance, Wisconsin Statutes section 809.23(3) precludes the citation of (1) unpublished opinions issued before July 1, 2009, and (2) unauthored, unpublished opinions thereafter. You may be surprised to learn that that means approximately half of Wisconsin Court of Appeals opinions issued each year are uncitable—so, too, are significantly more than half of the opinions it issued before July 1, 2009. Without change, the Wisconsin Court of Appeals will continue to miscategorize its opinions; Wisconsin’s case law will remain deplete of important, citable opinions; practitioners will fail to adequately represent their clients or will compromise their ethics in doing so; and judges may encounter moral dilemmas when practitioners present them with uncitable opinions—posing challenges in cases where analyses could be straightforward through logical or legal reasoning. That’s a problem. To date, four petitions to the Wisconsin Supreme Court have sought to address these problems. The first three proved unsuccessful. The fourth, in 2008, persuaded the Wisconsin Supreme Court to lift its general prohibition on citing unpublished opinions, creating Wisconsin’s citation rule as it stands today. Timing was everything. The Wisconsin Supreme Court found comfort in adhering to the recently adopted federal citation rule. Policy supporting the federal rule, however, was largely inapplicable to Wisconsin—if even applicable to the federal circuits. Considering that, and the trends with citation of other questionable sources, the Wisconsin Supreme Court should reconsider its problematic citation rule. The most recent amendment lifted the corner of the Band-Aid—it’s time to rip it off. The wounds are healed. The concern for infection is gone. Indeed, the Band-Aid may have been applied prematurely, protecting what now purports to have been an illusion. But regardless, it has been left on all too long.
Wisconsin's Citation Rule: Unpublished Should Not Mean Uncitable,
107 Marq. L. Rev. 259
Available at: https://scholarship.law.marquette.edu/mulr/vol107/iss1/8