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| Vol. 74, No. 10, October 2001
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Supreme Court Orders
The Wisconsin Supreme Court sets a public hearing for Nov. 13 to consider:
1) petitions and amendments to the statutes to consolidate statutes that
impose sanctions, 2) changes to the Supreme Court Rules regarding eligibility
for appointment as guardian ad litem, and 3) changes to the statutes regarding
publication of court of appeals opinions and regarding petitions for review.
Publication
of court of appeals opinions
In
the matter of the amendment of Wis. Stat. § 809.23 regarding publication
of court of appeals opinions.
In
the matter of the amendment of Wis. Stat. § 809.62(8) regarding petitions
for review.
Order
01-04, 01-08
On
March 12, 2001, the Judicial Council filed a petition, number 01-04, seeking
to amend Wis. Stat. § 809.23 to allow for the partial publication of a
court of appeals opinion.
On April 3, 2001, Judge Charles
P. Dykman filed a petition, number 01-08, seeking to amend Wis. Stat.
§ 809.62(8) to allow a court of appeals judge to file a response requesting
the supreme court to grant a petition for review.
IT IS ORDERED that a public
hearing on these petitions shall be held in the Supreme Court Room in
the State Capitol, Madison, Wis., on Wednesday, Nov. 28, 2001, at 9:30
a.m.
IT IS FURTHER ORDERED that
the court's conference in the matter shall be held promptly following
the public hearing.
IT IS FURTHER ORDERED that
notice of the hearing be given by publication of a copy of this order
and of the petitions in the official state newspaper once each week for
three consecutive weeks and in an official publication of the State Bar
of Wisconsin not more than 60 days nor less than 30 days before the date
of the hearing.
Dated at Madison, Wis., this
4th day of September, 2001.
By the court:
Cornelia G. Clark, Clerk
of Supreme Court
Petition
01-04
The Judicial Council respectfully
petitions this Court for an order pursuant to section 751.12, Stats.,
adopting the following amendment to Chapter 809, Rules of Appellate Procedure.
SECTION
809.23(2) of the statutes is created to read:
(2) Partial Publication.
(a) When a three-judge panel
deciding an appeal or other proceeding believes that some, but not all,
of the issues raised in the case meet the criteria for publication set
forth in s. 809.23(1)(a), the panel may file an opinion that decides only
those issues that, in the opinion of the panel, meet the publication criteria.
That opinion shall be recommended for publication. The remainder of the
issues shall be decided in a separate opinion or summary disposition order.
All opinions and orders under this paragraph shall be filed on the same
date, and each shall refer to the existence of the other.
(b) The requirement in para.
(a) that opinions be filed on the same date does not apply to an appeal
or other proceeding in which a per curiam opinion addressing an issue
of appellate jurisdiction or procedure is filed.
SECTION
809.23(2) through (5) are renumbered and amended to read:
(2)(3) 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. If only part
of an opinion satisfies the criteria for publication under s. 809.23(1)(a),
the committee may designate that only parts of an opinion shall be published.
The published portion of any such opinion may be cited as precedent and
the unpublished portion shall be considered to be an unpublished opinion
under s. 809.23(3)(4).
(3)(4)
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 res
judicata claim preclusion,
collateral estoppel
issue preclusion, or law
of the case.
(4)(5) 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.
Comment:
Most opinions released by the Court of Appeals address several
issues, of varying complexity and novelty. On many occasions, a small
portion of an opinion may meet the publication criteria when the majority
of the opinion involves well-settled law or is largely fact-specific.
Because only entire opinions may be published, those opinions often are
not published because the publication committee determines that, on balance,
publication is not appropriate.
These amendments would authorize
the publication of partial opinions, through the use of two complimentary
mechanisms. Other states, most notably Arizona, California and Michigan,
provide for partial publication in some fashion. Proposed Rule 809.23(2)
authorizes the panel of judges who decide an appeal or other proceeding
to issue two opinions addressing the merits of the case. One opinion would
address those issues that meet the publication criteria, and that opinion
would be recommended for publication. The second opinion or order would
address the remaining issues that do not meet the publication criteria.
The proposal requires that the two opinions or orders be released on the
same date and cross-reference each other.
For instances when the deciding
panel issues a single opinion in an appeal or other proceeding, proposed
Rule 809.23(3) authorizes the publication committee to order the publication
of those parts of an opinion that meet the publication criteria. The portion
of an opinion designated for publication could be cited as precedent and
the unpublished portion would be considered to be an unpublished opinion.
These proposed amendments would
serve to expand the precedent available to the bench and bar without sacrificing
the policy considerations underlying the limitation on citation to unpublished
opinions. See In re Amendment to Section (Rule) 809.23(3), 155
Wis. 2d 832, 833-34, 456 N.W.2d 783 (1990).
Section 809.23(4) was updated
to reflect the change in terminology used by the courts with respect to
claim preclusion, formerly referred to as res judicata, and issue preclusion,
formerly referred to as collateral estoppel. See Northern States Power
Co. v. Bugher, 189 Wis. 2d 541, 549, 525 N.W.2d 723, 727 (1995).
Respectfully
submitted:
Judicial Council
by: James C. Alexander
Petitions
for review
In
re Wis. Stat. Rule 809.62 (1999-2000) Relating to requests to grant or
deny Petitions for Review
Petition
01-08
Charles P. Dykman petitions
the Supreme Court to amend Wis. Stat. Rule 809.62 (1999-2000) by creating
(8), which would read substantially as follows:
(8) After a party files a petition
for review with the supreme court, any Wisconsin Court of Appeals judge
[alternatively, any member of the court of appeals publication committee]
may file with the clerk a motion requesting that the supreme court grant
the petition for review. The motion's form shall be that of a s. 808.05(2)
certification. The judge shall send a copy of the motion to the parties.
Note:
At a recent meeting of the court of appeals publication committee, see
Wis. Stat. § 809.23(2) (1999-2000), the committee extensively discussed
one of the cases which the deciding panel had recommended for publication.
The committee was informed that a petition for review of the case had
been filed with the supreme court. Information concerning petitions for
review is often available to the committee and is sometimes discussed
by the committee. Some members of the committee believed that the opinion's
result raised issues which were not discussed in the opinion, but were
substantial issues of statutory and constitutional law which would meet
the criteria found in Rule 809.62(1) for consideration by the supreme
court. Discussions of this sort are recurring at meetings of the publication
committee, but are not common.
Before the court of appeals
decides a case, it may file a certification requesting that the supreme
court accept a case for review. See Wis. Stat. § 808.05(2) (1999-2000).
In some court of appeals majority or dissenting opinions the authors suggest
that the supreme court accept a petition for review. But there does not
presently appear to be a method for the court of appeals or its judges
to ask the supreme court to grant a petition for review.
The court of appeals, by
virtue of its substantial caseload, becomes aware of cases which raise
recurrent issues. The publication committee sometimes discusses in depth
cases before it, and this discussion can include the views of several
court of appeals judges. In some instances, views of court of appeals
judges regarding the grant or denial of a petition for review could be
helpful to the supreme court.
This petition is directed
to the Supreme Court's rule making authority under Wis. Const., art. VII,
sec. 3(1) and Wis. Stat. § 751.12 (1999-2000).
Respectfully
submitted on April 3, 2001:
Charles P. Dykman,
Presiding Judge,
District IV
Wisconsin Court of Appeals
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