Wisconsin Statutes 809.23 – Rule (Publication of opinions)
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Terms Used In Wisconsin Statutes 809.23
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Appellate: About appeals; an appellate court has the power to review the judgement of another lower court or tribunal.
- Case law: The law as laid down in cases that have been decided in the decisions of the courts.
- Chief judge: The judge who has primary responsibility for the administration of a court but also decides cases; chief judges are determined by seniority.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Person: includes all partnerships, associations and bodies politic or corporate. See Wisconsin Statutes 990.01
- Precedent: A court decision in an earlier case with facts and law similar to a dispute currently before a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can show that it was wrongly decided or that it differed in some significant way.
- State: when applied to states of the United States, includes the District of Columbia, the commonwealth of Puerto Rico and the several territories organized by Congress. See Wisconsin Statutes 990.01
(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(b) An opinion should not be published when: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) Citation of unpublished opinions.
809.23(3)(a) (a) An unpublished opinion 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, and except as provided in par. (b).
(b) In addition to the purposes specified in par. (a), an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge under s. 752.31 (2) may be cited for its persuasive value. A per curiam opinion, memorandum opinion, summary disposition order, or other order is not an authored opinion for purposes of this subsection. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state. A court need not distinguish or otherwise discuss an unpublished opinion and a party has no duty to research or cite it.
(c) A party citing an unpublished opinion shall file and serve a copy of the opinion with the brief or other paper in which the opinion is cited.
(4) Request for publication.
809.23(4)(a) (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 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.