Timothy Barber
Timothy Barber

New Rules of Appellate Procedure: Permissive Citation of Unpublished Opinions and Mandatory Electronic Filing

February 3, 2009

On January 6, 2009, the Wisconsin Supreme Court granted two rule-making petitions that will significantly change the rules of appellate procedure in Wisconsin. First, the Wisconsin Supreme Court amended Wis. Stat. § (Rule) 809.23(3) to allow attorneys to cite unpublished court of appeals opinions for persuasive value starting July 1, 2009. [1] Second, the Court amended the rules of appellate procedure to require that attorneys file electronic copies of appellate briefs, petitions for review and no-merit reports in addition to filing paper copies. [2]

Parties May Now Cite Unpublished Opinions for Persuasive Authority
Currently, Wis. Stat. § 809.23(3)(a) declares that an unpublished court of appeals opinion is of no precedential value and cannot be cited in any court in Wisconsin except to support a claim of law of the case, issue preclusion or claim preclusion. The new amendment creates a very large exception to the general rule prohibiting citation to unpublished opinions and eliminates the statutory language stating that unpublished opinions lack any precedential value.

Under the new par. (b), a party may cite an unpublished opinion issued on or after July 1, 2009 for persuasive value—but not as precedent. The new rule applies to opinions authored by a member of a three-judge panel of the court of appeals and opinions by a single judge under Wis. Stat. § 752.31(2) (ordinance violations, municipal citations, etc.). However, “[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Because an unpublished opinion is not binding, the new rule states that courts do not have to discuss, distinguish or even address an unpublished opinion brought to their attention, and an attorney has no ethical duty to research or cite unpublished opinions. [3] A party that cites an unpublished opinion must file the opinion with the court and serve it along with the paper copy of the document within which the opinion is cited. [4]

The Judicial Council Note accompanying the new rule explains that the change to allow citation to unpublished opinions was adopted due to the increasing availability of unpublished opinions and changes to the federal rules of appellate procedure. The Wisconsin Supreme Court will convene a committee to compile data regarding the new rule’s impact. The committee will present its findings to the Court in 2011.

New Electronic Filing Requirements
In addition to allowing attorneys to cite unpublished opinions, the Wisconsin Supreme Court created a number of new rules, effective July 1, 2009 relating to electronic filing of appellate documents. The new rules, with limited exceptions, will require attorneys to file electronic copies of all appellate briefs, petitions for review and no-merit reports, in addition to filing paper copies of the documents.

Newly created Wis. Stat. § (Rule) 809.19 (8)(a)4. requires all parties represented by counsel on appeal to file an electronic copy of their briefs in addition to the paper copies already required under sec. 809.19(8)(a)1.-3. Further, the new rule requires attorneys to file electronic copies of petitions for review [5] and no-merit reports as well. [6] Electronic filing is mandatory unless an attorney files a motion for relief under § 809.14 demonstrating that the attorney lacks the technological capacity to comply with the new rules and good cause why it is not feasible to file an electronic copy. [7] Notably, even though filing electronic copies of these documents is now mandatory, the paper copies “remain[] the official court record.” [8]

All electronic documents must be filed using the new electronic filing system set up under Wis. Stat. § 801.17. [9] Section 809.12(c) proscribes that a brief must be filed in text-searchable PDF format. While there are no other formatting requirements in the new rule, the new Comment to paragraphs (12) and (13) contains additional formatting suggestions. [10] Although not officially adopted as part of the new rules, the Comment states an electronic brief may be “enhanced” with both internal and external links—such as linking the table of contents to the body of the brief or linking to websites containing the text of cases and statutes. However, the brief cannot link to any external site requiring a password. Also, no enhancement can alter the text of the brief. Further, the brief must be submitted as a single PDF and cannot include the appendix or any other material. [11]

The Comment also reiterates that parties are “encouraged,” but are not required, to file an electronic copy of an appendix pursuant to newly created Wis. Stat. § (Rule) 809.19(13)(a). [12] Section (Rule) 809.19(13)(c) states that if an electronic copy of an appendix is filed, it must be in PDF format and filed separately from the accompanying brief. The Comment suggests that appendices containing over 200 pages should be filed as separate documents. [13] It also states that appendices may be filed in a non-text-searchable PDF format. [14]

The new rules contain identical provisions governing timing, corrections, and certifications of electronically filed briefs, appendices, petitions for review and no merit reports. The new rules provide that all electronic documents must be transmitted on or before the day its corresponding paper copy is filed. [15] However, the date the paper copy is filed remains the official date of filing, [16] and filing is not timely unless the paper copy is filed within the prescribed time period. [17] In other words, transmitting an electronic copy of an appellate document does not satisfy the filing requirements applicable for the document.

An electronic document that is submitted to the Clerk of Court’s Office during regular business hours and subsequently approved is considered to be “transmitted” the date it was submitted. [18] Any material submitted after the close of business hours will be considered to have been transmitted the next day. The new rules require that a party filing an electronic document certify that its contents are the same as text of the paper copy of the document on file with the clerk. [19] Any corrections to an electronically filed document must be made both to the electronic copy and the paper copy. [20]

If the clerk accepts the electronic document for filing, then the electronic copy is considered to be transmitted at the time it was originally submitted. [21] The electronic filing system will then issue a confirmation notice with the date and time of the original transmission, and this serves as proof of filing for the electronic transmission. [22] If the clerk rejects an electronic document for filing, the filer will receive notification and be required to resubmit the document. [23] Failing to comply with the new electronic filing requirements may result in the Court determining that the document was not filed within the requisite time period. [24]

[1] In the Matter of the Amendment of Wis. Stat. § (Rule) 809.23(3), 2009 WI 2. The Court voted 6 to 1 to adopt the petition with Justice Bradley dissenting.
[2] In the Matter of the Petition to Create Wis. Stat. §§ (Rule) 809.19(8)(a)4., et al., 2009 WI 4. This petition was adopted unanimously by the Court.
[3] Wis. Stat. § (Rule) 809.23(3)(b).
[4] Wis. Stat. § (Rule) 809.23(3)(c).
[5] Wis. Stat. § (Rule) 809.62(4)(b). Section 809.62(4)(b) also applies to responses to petitions for review.
[6] Wis. Stat. § (Rule) 809.32(1)(fm).
[7] See Wis. Stat. §§ (Rule) 809.19(12)g.(briefs); 809.32(1)(fm)(no merit reports); 809.62(4)(b) (petitions for review)
[8] Wis. Stat. § (Rule) 809.19(12)(a) (briefs); (Rule) 809.19(13)(a) (appendices); (Rule) 809.32(1)(fm) (no merit reports); (Rule) 809.62(4)(b)(petitions for review).
[9] Wis. Stat. §§ (Rule) 809.19(12)(b) (briefs); (Rule) 809.19(13)(b) (appendices); (Rule) 809.32(1)(fm) (no merit reports); (Rule) 809.62(4)(b)(petitions for review).
[10] See Wis. Stat. §§ Rule 809.19(12) and (Rule) 809.19(13), cmt. (2008).
[11] Wisconsin Stat. § 809.62(4)(b) provides that petitions for review, responses, and appendices should be filed in electronic form using the procedure set forth in Wis. Stat. §§ (Rule) 809.19(12) & (13). Thus, presumably, the same “enhancements” should be allowed for petitions for review and responses as are allowed for briefs.
[12] Wis. Stat. § (Rule) 809.62(4)(b) states that an attorney may file an appendix to a petition for review using the procedure outlined in § 809.19(13).
[13] See Wis. Stat. §§ Rule 809.19(12) and (Rule) 809.19(13), cmt. (2008).
[14] Id.
[15] Wis. Stat. §§ (Rule) 809.19(12)(d)(briefs); (Rule) 809.19(13)(d)(appendices); (Rule) 809.21(1)(fm)(no-merit reports); (Rule) 809.62(4)(d)(petitions for review).
[16] Wis. Stat. § (Rule) 809.(19)(12)(d)(briefs); (Rule) 809.19(13)(d)(appendices);(Rule) 809.21(1)(fm)(no merit reports); (Rule) 809.62(4)(c)(petitions for review).
[17] Wis. Stat. § (Rule) 809.80(3)(a).
[18] See Wis. Stat. §§ (Rule) 809.19(12)(d)( briefs); (Rule) 809.19(13)(d)(appendices); (Rule) 809.32(1)(fm) (no merit reports); and (Rule) 809.62(4)(b)(petitions for review).
[19] Wis. Stat. §§ (Rule) 809.19(12)(f)(briefs); (Rule) 809.19(13)(f)(appendices); (Rule) 809.32(1)(fm) (no merit reports); (Rule) 809.62(4)(b) (requiring petitions for review, responses, and appendices to be filed in accordance with Rules 809.19(12) & (13)).
[20] Wis. Stat. §§ (Rule) 809.19(12)(e); (Rule) 809.19(13)(e).
[21] Wis. Stat. § (Rule) 809.80(5)(a)2.
[22] Id.
[23] Wis. Stat. § (Rule) 809.80(5)(a)3.
[24] Wis. Stat. § (Rule) 809.80(5)(b).