|June 6, 2014|
Previously published on May 29, 2014
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.