There are several reasons why an unpublished opinion should not be cited: (1) The type of opinion written for the benefit of the parties is different from an opinion written for publication and often should not be published without substantial revision; (2) If unpublished opinions could be cited, services that publish only unpublished opinions would soon develop forcing the treatment of unpublished opinions in the same manner as published opinions thereby defeating the purpose of nonpublication; (3) Permitting the citation of unpublished opinions gives an advantage to a person who knows about the case over one who does not; (4) An unpublished opinion is not new authority but only a repeated application of a settled rule of law for which there is ample published authority.
If it is desirable to reduce the number of published opinions, the only alternative to having some opinions unpublished is to decide cases without written opinions. This would be far worse because it would compound the problems of nonpublication and at the same time take away from the parties the benefit of a written opinion.
Section 752.41 (3) authorizes the Supreme Court to establish by rule the procedure under which the Court of Appeals decides which of its opinions are to be published. Sub. (1) provides for a committee of judges of the Court of Appeals to make this decision.
As a safeguard against any mistakes as to nonpublication, sub. (4) adopts the procedure of the United States Court of Appeals for the Seventh Circuit in permitting a person to request that an unpublished opinion be published. [Re Order effective July 1, 1978]
Judicial Council Committee's Note, 1979: Sub. (4) is amended to delete the prior requirement that a motion had to be filed in order to ask the Court of Appeals to have one of its unreported opinions published in the official reports of the Court of Appeals. Requiring a motion to be filed led to confusion in some instances because the person requesting the opinion to be published may not be a party to the appeal decided by the opinion and uncertainty can occur as to who should be served with a copy of the motion and given an opportunity to respond. The requirement to file a motion has been replaced by the need to simply make a request to the Court of Appeals for publication of an unreported opinion. [Re Order effective Jan. 1, 1980]
Court of Appeals Note, 1997: A request under this paragraph [sub. (4) (c)] does not affect the time under sec. (Rule) 809.62 for filing a petition for review. As in the case of reconsideration of a Court of Appeals decision or opinion, withdrawal of an opinion renders that opinion a nullity. Accordingly, a petition for review of that opinion filed prior to its withdrawal is of no effect, except that the petitioner may incorporate it by reference in a petition for review of the opinion subsequently issued in the appeal or proceeding.
Court of Appeals Note, 1997: The Court of Appeals recognizes that many of its opinions are issued as per curiam opinions that should not be published under sec. (Rule) 809.23 (1) (b) 5., Stats. This amendment [of sub. (4)] establishes a procedure whereby a person may request that a per curiam opinion be withdrawn, authored and recommended for publication. The amendment also expressly states that an opinion issued by a single judge of the Court of Appeals under s. 752.31 (2) and (3), Stats., will not be published.
Judicial Council Note, 2008: Subsection (3) was revised to reflect that unpublished Wisconsin appellate opinions are increasingly available in electronic form. This change also conforms to the practice in numerous other jurisdictions, and is compatible with, though more limited than, Fed. R. App. P. 32.1, which abolished any restriction on the citation of unpublished federal court opinions, judgments, orders, and dispositions issued on or after January 1, 2007. The revision to Section (3) does not alter the non-precedential nature of unpublished Wisconsin appellate opinions.
Citing an unpublished opinion of the court of appeals subjected the attorney to a $50 fine. Tamminen v. Aetna Casualty & Surety Co. 109 Wis. 2d 536
, 327 N.W.2d 55
Citation to an unpublished court of appeals decision to show a conflict between districts for purposes of s. 809.62 (1) (d) is appropriate. State v. Higginbotham, 162 Wis. 2d 978
, 471 N.W.2d 24
A party's invitation to the court of appeals to consider an unpublished opinion, or even a naked citation to it, violates the letter and spirit of sub. (3). Kuhn v. Allstate Co. 181 Wis. 2d 453
, 510 N.W.2d 826
(Ct. App. 1993).
Only the supreme court has the power to overrule, modify, or withdraw language from a published opinion of the court of appeals. Cook v. Cook, 208 Wis. 2d 166
, 560 N.W.2d 246
The rule against citing unpublished cases is essential to the reduction of the overwhelming number of published opinions and is a necessary adjunct to economical appellate court administration. Unless and until the nonpublication rule is changed, violations of this rule will not be tolerated. State v. Milanes, 2006 WI App 259
, 297 Wis. 2d 684
, 727 N.W.2d 94
The noncitation rule and the concept of stare decisis. Walther. 61 MLR 581 (1978).
Publication of court of appeals' opinions. Scott. WBB July 1988.
Citing Unpublished Opinions in Wisconsin State and Federal Tribunals. Sefarbi & Zaporski. Wis. Law. Nov. 2004.
Rule (Reconsideration). 809.24(1)
Except as provided in sub. (4)
, a party may file a motion for reconsideration in the court of appeals within 20 days after the date of a decision issued pursuant to s. 752.41 (1)
. The motion must state with particularity the points of law or fact alleged to be erroneously decided in the decision and must include supporting argument. No separate memorandum in support of the motion is permitted unless subsequently ordered by the court. The court may order a response before issuing an amended decision. No response to the motion is permitted unless ordered by the court. The motion and any response shall not exceed 5 pages if a monospaced font is used or 1,100 words if a proportional serif font is used.
In response to a motion for reconsideration, the court shall issue an amended decision or the court shall issue an order denying the motion.
Nothing in this section prohibits the court from reconsidering a decision on its own motion at any time prior to remittitur if no petition for review is filed under s. 809.62
or, if a petition for review is filed, within 30 days after filing the petition for review.
No motion for reconsideration of a court of appeals decision issued under s. 809.105
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01
, 2002 WI 120, 255 Wis. 2d xiii; 2009 a. 25
Judicial Council Committee's Note, 1981: Rule 809.24 is amended to refer properly to the petition for supreme court review of decisions of the court of appeals. The rule has been redrafted stylistically. No substantive change is intended. [Re Order effective Jan. 1, 1982]
Judicial Council Note, 2001: Section 809.24 is amended to conform with the court of appeals' internal operating procedures, and to provide an orderly procedure for reconsideration. Reconsideration is intended for those rare cases in which the court of appeals overlooks or misapprehends relevant and material facts or law, not for cases in which a party simply disagrees with the court of appeals. Presentation of new facts or alternate legal arguments is not appropriate on reconsideration. Reconsideration is not permitted in s. 809.105 proceedings related to parental consent prior to performance of abortion due to the abbreviated appellate time periods provided in s. 809.105. Service requirements of s. 801.14 (4) apply. The time for filing a motion for reconsideration cannot be extended. See s. 809.82 (2) (e). [Re Order No. 00-02 effective July 1, 2001]
Judicial Council Note, 2002: The reference to an "order" of the court of appeals is deleted. Prior to 2001 WI 39
, s. 809.24 applied to a "decision" of the court. To clarify that a summary disposition order was subject to reconsideration under s. 809.24, a reference to "order" was added by 2001 WI 39
. That amendment created confusion as to whether procedural orders issued by the court during the pendency of an appeal could be reconsidered under s. 809.24. However, reconsideration of procedural orders is available under s. 809.14. To eliminate the confusion created by 2001 WI 39
, a reference to s. 752.41 (1) was added and "order" was deleted. See In Interest of A.R., 85 Wis. 2d 444
, 446, 270 N.W.2d 581
(1978) ("decision" as used in s. 752.41 (1) is the final decision disposing of the appeal).
The amendment also eliminates the requirement that the court of appeals order a response to a motion for reconsideration prior to amending a decision. Often a motion for reconsideration will bring the court's attention to a minor factual misstatement that may be corrected without the benefit of a response. The court of appeals retains the option to order that a response be filed, if it determines that a response will assist the court. [Re Order No. 02-01 effective January 1, 2003.]
Rule (Costs and fees). 809.25(1)(a)(a)
Costs in a civil appeal are allowed as follows unless otherwise ordered by the court:
Against the appellant before the court of appeals when the appeal is dismissed or the judgment or order affirmed.
Against the respondent before the court of appeals when the judgment or order is reversed.
Against the petitioner before the supreme court when the judgment of the court of appeals is affirmed by the supreme court.
Against the respondent before the supreme court when the judgment of the court of appeals is reversed by the supreme court and the costs in the court of appeals are canceled and may be taxed by the supreme court as costs against another party.
Cost of printing and assembling the number of copies and briefs and appendices required by the rules, not to exceed the rates generally charged in Dane County, Wisconsin, for offset printing of camera-ready copy and assembling;
Cost of the preparation of the transcript of testimony or for appeal bonds;
Fees of the clerk of the trial court for preparation of the record on appeal;
A party seeking to recover costs in the court shall file a statement of the costs within 14 days of the filing of the decision of the court. An opposing party may file, within 11 days after service of the statement, a motion objecting to the statement of costs.
Costs allowed by the court are taxed by the clerk of the court of appeals irrespective of the filing by a party of a petition for review in the supreme court. In the event of review by the supreme court, costs are taxed by the clerk of the supreme court as set forth in pars. (a)
. The clerk of the supreme court shall include in the remittitur the costs allowed in the court. The clerk of circuit court shall enter the judgment for costs in accordance with s. 806.16
The clerk of the court shall charge the following fees:
For filing an appeal, cross-appeal, petition for review, petition to bypass, or other proceeding, $195.
For making a copy of a record, paper, or opinion of the court and comparing it to the original, 40 cents for each page.
For comparing for certification of a copy of a record, entry or paper, when the copy is furnished by the person requesting its certification, 25 cents for each page.
For a certificate and seal, $1, except for an attorney's certificate of good standing, $3.
The state is exempt from payment of the fees set forth in par. (a) 1.
, except that the clerk is not obligated to supply the state with free copies of opinions.
The clerk of the court of appeals may refuse to file, record, certify, or render any other service without prepayment of the fees established by this section.
If an appeal or cross-appeal is found to be frivolous by the court, the court shall award to the successful party costs, fees, and reasonable attorney fees under this section. A motion for costs, fees, and attorney fees under this subsection shall be filed no later than the filing of the respondent's brief or, if a cross-appeal is filed, no later than the filing of the cross-respondent's brief. This subsection does not apply to appeals or cross-appeals under s. 809.107
, or 974.05
The costs, fees and attorney fees awarded under par. (a)
may be assessed fully against the appellant or cross-appellant or the attorney representing the appellant or cross-appellant or may be assessed so that the appellant or cross-appellant and the attorney each pay a portion of the costs, fees and attorney fees.
In order to find an appeal or cross-appeal to be frivolous under par. (a)
, the court must find one or more of the following:
The appeal or cross-appeal was filed, used or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
The party or the party's attorney knew, or should have known, that the appeal or cross-appeal was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 316
; 1981 c. 390
; 1985 a. 29
; Sup. Ct. Order, 151 Wis. 2d xvii (1989); 1995 a. 224
; 1997 a. 254
; 1999 a. 85
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii; 2003 a. 33
Judicial Council Committee's Note, 1978: Most of the provisions of former ss. 251.23 and 251.90 are retained. The major change is to provide that execution for costs in the Court of Appeals is to be had in the trial court in accordance with Rule 806.16 rather than in the Court of Appeals. The Judicial Council did not review the adequacy of the fees and thus made no recommendations on them. It is suggested, however, that many of the fees appear to be out of date and should be revised. This should be done in connection with a general review of fees in all courts. [Re Order effective July 1, 1978]
Judicial Council Committee's Note, 1979: Sub. (1) (a) and (d), which governs costs that are allowed in an appeal to the Court of Appeals or a review by the Supreme Court, have been amended for purposes of clarification.
A provision has been added to clarify that costs are taxed by the clerk in the Court of Appeals irrespective of the filing of a petition for review in the Supreme Court. In the event of review by the Supreme Court, a provision has been added specifically stating that costs are allowed against a petitioner in a case before the Supreme Court when the decision of that court affirms a judgment of the Court of Appeals.
An additional clarifying provision has been added allowing costs against a respondent in a case before the Supreme Court when the petitioner before the Supreme Court has achieved reversal of a judgment of the Court of Appeals. The provision further states that the costs that were allowed when the case was originally decided by the Court of Appeals are canceled. [Re Order effective Jan. 1, 1980]
Judicial Council Committee's Note, 1981: Sub. (2) (a) 1. is amended to correct the reference from a petition to appeal to a petition for review. The supreme court reviews the decisions of the court of appeals. [Re Order effective Jan. 1, 1982]
Judicial Council Note, 2001: The 7-day time limit in sub. (1) (c) was changed to 11 days. Please see the comment to s. 808.07 (6) concerning time limits. [Re Order No. 00-02 effective July 1, 2001]
An appeal was frivolous when an assertion of trial court error was without any reasonable basis in law or equity and there was no argument that existing law should have been extended, modified, or reversed. In Matter of Estate of Koenigsmark, 119 Wis. 2d 394
, 351 N.W.2d 169
(Ct. App. 1984).
Tax protesters appealing without counsel were properly assessed costs under sub. (3) (c) 2. Tracy v. Department of Revenue, 133 Wis. 2d 151
, 394 N.W.2d 756
(Ct. App. 1986).
Restricting access to courts as a sanction for a frivolous action was appropriate when the order was narrowly tailored to balance the interests of public access to courts, res judicata, and the public's right not to have frivolous litigation be a drain on public resources. Minniecheske v. Griesbach, 161 Wis. 2d 743
, 468 N.W.2d 760
(Ct. App. 1991).
Asking the court of appeals to reweigh the testimony of witnesses and to reach a conclusion regarding credibility contrary to that reached by a trial judge was frivolous. Lessor v. Wangelin, 221 Wis. 2d 659
, 586 N.W.2d 1
(Ct. App. 1998), 97-2974
A frivolous appeal filed by a non-lawyer results in the same harm as if it were filed by a lawyer. It would not be fair or logical to say that had a lawyer filed the appeal costs would have been awarded but to deny recovery because the appeal was presented by a pro se litigant. Holz v. Busy Bees Contracting, Inc. 223 Wis. 2d 598
, 589 N.W.2d 633
(Ct. App. 1998), 98-1076
While only an appellate court can find an appeal frivolous, the case may be remanded to the circuit court to determine the amount of attorney fees to be awarded. Lucarelli v. Vilas County, 2000 WI App 157
, 238 Wis. 2d 84
, 616 N.W.2d 153
In addition to an order to pay the respondent's costs, fees, and attorney fees, an appellant whose appeal was found frivolous after his brief was stricken for being offensive, scurrilous, and inappropriate was barred from filing any future proceedings in the court of appeals and the circuit court arising from, relating to, or involving the respondents. Puchner v. Hepperla, 2001 WI App 50
, 241 Wis. 2d 545
, 625 N.W.2d 609
The circuit court's award of fees to the respondent due to the appellant's overlitigating by filing multiple frivolous issues on appeal, in violation of the circuit court's order, was not prevented by a court of appeals finding that no fees could be awarded under sub. (3). Zhang v. Yu, 2001 WI App 267
, 248 Wis. 2d 913
, 637 N.W.2d 754
In order to be awarded costs, fees, and reasonable attorney fees, the moving party must prove that the entire appeal presented was frivolous. If an argument advanced has arguable merit, then the appeal is not frivolous. Baumeister v. Automated Products, Inc. 2004 WI 148
, 277 Wis. 2d 21
, 690 N.W.2d 1
The trial court cannot make a finding that an appeal is frivolous and is without authority to order the payment of frivolous costs and fees associated with an appeal. Morters v. Aiken & Scoptur, 2006 WI App 46
, 289 Wis. 2d 833
, 712 N.W.2d 71
Rule (Remittitur). 809.26(1)(1)
The clerk of the court of appeals shall transmit to the circuit court the judgment and decision or order of the court and the record in the case filed pursuant to s. 809.15
31 days after the filing of the decision or order of the court, or as soon thereafter as practicable. If a petition for review is filed pursuant to s. 809.62
, the transmittal is stayed until the supreme court rules on the petition. If a motion for reconsideration is filed under s. 809.24
, the transmittal is stayed until the court files an order denying the motion, or files an amended decision or order, and the subsequent expiration of any period for filing a petition for review.
If the supreme court grants a petition for review of a decision of the court of appeals, the supreme court upon filing its decision shall transmit to the trial court the judgment and opinion of the supreme court and the complete record in the case unless the case is remanded to the court of appeals with specific instructions.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); 1981 c. 390
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01
, 2002 WI 120, 255 Wis. 2d xiii.
Judicial Council Committee's Note, 1978: Former s. 817.35 is embodied in this section except that the time for issuance of the remittitur is reduced from 60 to 31 days. [Re Order effective July 1, 1978]
Judicial Council Committee's Note, 1979: This section is amended by creating a sub. (2) that specifically authorizes the Supreme Court after filing its decision in the review of a decision from the Court of Appeals to remit directly to the trial court the complete record of the case without the necessity of returning the case to the Court of Appeals for remittitur to the trial court. The only exception to this new procedure will occur when the Supreme Court remands a case to the Court of Appeals with some specific instructions that the Court of Appeals is required to follow. [Re Order effective Jan. 1, 1980].
Judicial Council Note, 2002: Subsection (1) is amended to permit the clerk of courts some flexibility in the 31-day remittitur deadline to accommodate workload fluctuation. By Supreme Court Order 00-02, 2001 WI 39
, "within" was added immediately preceding "31 days." The Judicial Council had not intended to suggest changing the substance of existing time parameters for remittitur, when it petitioned for that amendment, but merely proposed the additional word for ease of reading. Since that amendment, it has been argued that the addition of "within" permits remittitur prior to the expiration of the 31-day period. However, the 31-day period coincides with the time limit for filing a petition for review. Absent stipulation among the parties that no petition for review will be filed, remittitur should not occur before the expiration of the petition for review deadline. [Re Order No. 02-01 effective January 1, 2003]
An appellate court's jurisdiction ceases upon remittitur in the absence of inadvertence, fraud, or void judgment. The inadvertence exception applies to the act of remitting the record itself, which must be inadvertently done. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446
, 593 N.W.2d 48
APPEAL PROCEDURE IN COURT OF APPEALS
IN S. 971.17 PROCEEDINGS AND IN CRIMINAL
AND CH. 48, 51, 55, 938, AND 980 CASES
Rule (Appeals in s. 971.17 proceedings and in criminal, ch. 48, 51, 55, 938, and 980 cases). 809.30(1)(1)
In this subchapter:
"Final adjudication" means the entry of a final judgment or order by the circuit court in a s. 971.17
proceeding, in a criminal case, or in a ch. 48
, or 980
case, other than a termination of parental rights case under s. 48.43
or a parental consent to abortion case under s. 48.375 (7)
A defendant seeking postconviction relief in a criminal case.