The Precedential Value of Seriatim Wisconsin Court of Appeals Opinions

by Foley & Lardner LLP
Contact

In April we wrote about the Wisconsin Court of Appeals opinions compelling State Senator Jon Erpenbach to produce non-redacted emails under Wisconsin’s Public Records law. Today, the Court of Appeals ordered that the opinions be published. These opinions raise significant questions regarding their own precedential value.

Judge Mark Gundrum wrote the lead opinion and announced the court’s judgment. The Court of Appeals assigns opinions by lot. Wis. Ct. App. IOP (VI)(4)(i).

Judge Richard Brown concurred but expressed “misgivings” about the result in the case. After lamenting the state of public discourse and political implications of selective redaction, Judge Brown concurred “in the decision that under current law these e-mails are public records subject to release without redaction.”

Judge Paul Reilly concurred “with both of [his] colleagues’ respectful and persuasive discussion of the public policy rationales for and against the release of the records at issue.” But Judge Reilly parted with his colleagues in his analysis. He believed that the case was “a straightforward, statutory interpretation case.”

Each of the judges made interesting and thoughtful points regarding the role of Wisconsin’s Open Records law in our system of government. What is not clear from the opinions, however, is whether either of the concurring judges joined Judge Gundrum’s opinion. This raises the question: Are other courts bound by any of the opinions in the case?

Under Wis. Stat. § 752.41(2) “Officially published opinions of the court of appeals shall have statewide precedential effect.” Yet, this must refer only to published majority opinions rather than, e.g., dissents or even concurrences. Published unanimous opinions or published opinions joined by two judges are no doubt precedential. But an opinion not joined by another judge on the panel couldn’t become precedential simply by virtue of the author having drawn the straw to write the first opinion.

Should the opinion have even been published in the first place? Judge Gundrum’s opinion was recommended for publication. Under Wis. Stat. § 809.23(2), the judges “who join in an opinion” make the recommendation regarding publication. How many judges recommended the opinion for publication? 1? 2? 3? Does the fact that Judge Gundrum’s opinion was recommended for publication suggest that it had at least two votes? And was the first concurrence recommended for publication as well, since Judge Reilly concurred in Judge Brown’s discussion? Is Judge Brown’s opinion precedential?

Why does any of this matter? These opinions are not unique. There are any number of opinions in Wisconsin–Court of Appeals and Supreme Court alike–where it is not clear which (if any) of the opinions are precedential. But in Wisconsin, the Supreme Court has determined that statements in its own opinions cannot be dismissed as dicta, Zarder v. Humana Ins. Co., 2010 WI 35, ¶58, 324 Wis. 2d 325, 782 N.W.2d 682; and the Court of Appeals has come to the same conclusion about its own opinions, NCR Corp. v. Transport Ins. Co., 2012 WI App. 108, ¶27, 344 Wis. 2d 494, 823 N.W.2d 532 (Disclosure: Foley & Lardner LLP was counsel in this appeal).

Because precedential opinions carry such weight, it would be helpful for our appellate courts to make clearer which opinions are, in fact, precedential.

View This Blog

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley & Lardner LLP | Attorney Advertising

Written by:

Foley & Lardner LLP
Contact
more
less

Foley & Lardner LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.