City of Sheboygan v. Steven Nytsch

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2008 WI 64 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2005AP2767 City of Sheboygan, Plaintiff-Appellant, v. Steven Nytsch, Defendant-Respondent-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS 2006 WI App 191 Reported at: 296 Wis. 2d 73, 722 N.W.2d 626 (Ct. App. 2006-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: June 19, 2008 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Sheboygan Gary Langhoff JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ZIEGLER, J., did not participate. ATTORNEYS: 2008 WI 64 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2005AP2767 (L.C. No. 2005TR4201 & 2005TR4202) STATE OF WISCONSIN : IN SUPREME COURT City of Sheboygan, FILED Plaintiff-Appellant, JUN 19, 2008 v. Steven Nytsch, David R. Schanker Clerk of Supreme Court Defendant-Respondent-Petitioner. REVIEW of a decision of the Court of Appeals. Petition for review granted; remanded with directions. ¶1 PER CURIAM. Pending before the court is a petition for review filed by Steven Nytsch. matter. We decline to review this However, we deviate from our usual practice of denying the petition for review by written order. Rather, we grant the petition for the sole purpose of remanding the matter to the court of appeals with directions to vacate certain language contained in footnote 6 of the court of appeals' decision. ¶2 The court of appeals was presented with the question whether the circuit court properly applied the doctrine of issue preclusion to the facts of this case. The circuit court No. 2005AP2767 accepted Nytsch's argument that the doctrine of issue preclusion barred the city of whether there was driving. In Sheboygan probable rendering from cause this to litigating arrest decision, the Nytsch the question for drunk circuit court acknowledged the general rule that unpublished opinions may not be cited as precedent or authority. See Wis. Stat. § (Rule) 809.23(3) (2005-06).1 Nonetheless, the circuit court then specifically proceeded to adopt and relied upon the rationale of an unpublished court of appeals' opinion, Village of Westfield v. Mashek, No. 1994AP361, unpublished slip op. (Wis. Ct. App. Nov. 10, 1994). ¶3 On appeal the court of appeals reversed, holding that the city of Sheboygan was not precluded from litigating the probable cause issue on the merits, on the ground that the issue was not actually litigated. The court of appeals ruled that it would be fundamentally unfair to apply issue preclusion in this case. See City of Sheboygan v. Nytsch, 2006 WI App 191, ¶1, 296 Wis. 2d 73, 722 N.W.2d 626. We take no position on the merits of the court of appeals' decision. ¶4 What concerns this court is the final footnote to the court of appeals' decision, in which the court characterized the unpublished decision upon which the circuit court relied as "wrongly decided." Id., n.6. 1 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. 2 No. ¶5 overrule, 2005AP2767 It is well settled that the court of appeals may not modify or withdraw language from published decision of the court of appeals. Wis. 2d 166, 560 N.W.2d 246 (1997). Westfield is an unpublished decision. a previously Cook v. Cook, 208 Admittedly, Village of However, that implicates Wis. Stat. § (Rule) 809.23(3), which provides that: 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 claim preclusion, issue preclusion, or the law of the case. Can the court of appeals analyze and effectively overrule a decision that wholly lacks either authority, as a matter of law? precedential or persuasive Certainly, the court's analysis explains why the court of appeals overruled the circuit court's ruling. But, in so doing, the court implicitly acknowledges that the Westfield have persuasive decision, authority. albeit This unpublished, court is fully does indeed aware that appellate courts and lawyers alike look to unpublished decisions to bolster legal arguments and to ensure consistency in outcome. However, our current rules do not sanction this practice. Thus, we direct the court of appeals to strike the following language from footnote 6: In this case, reliance on the rationale of Village of Westfield was misplaced. After a review of that decision, we conclude that it was wrongly decided. The primary flaw in Village of Westfield, is our failure to apply the issue preclusion test set out in Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993). While we cited to Michelle T., 173 Wis. 2d at 687, for the definition of issue preclusion (then called collateral estoppel), we inexplicably 3 No. 2005AP2767 turned to State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 387, 260 N.W.2d 727 (1978), for the test that would be applied "[t]he four elements of the collateral estoppel test have been identified as including: (1) a valid, final judgment; (2) identity of issues; (3) privity of parties; and (4) issues which have been litigated and necessarily determined." As we discuss in the body of this decision, the proper test to be applied is the looser, equities-based test found in Michelle T., 173 Wis. 2d at 687-89, which asks, in part, whether the issue actually has been litigated and whether applying issue preclusion comports with the principles of fundamental fairness. See Brown County Dep't of Human Servs. v. Terrance M., 2005 WI App 57, ¶10 n.6, 280 Wis. 2d 396, 694 N.W.2d 458, review denied, 2005 WI 134, 282 Wis. 2d 723, 700 N.W.2d 274 (2005); Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶17, 281 Wis. 2d 448, 699 N.W.2d 54. The result in Village of Westfield is wrong because we did not as we do here consider these questions. ¶6 Although we direct the court to strike the aforementioned language, this directive does not end our review. ¶7 There has been considerable debate at the state and national levels about rules prohibiting citation to unpublished decisions. petition The with Wisconsin this court Judicial regarding Council has citation filed to a rule unpublished decisions and the matter will be set for a public hearing in due course.2 2 The pending rule petition, No. 08-02, In re: Proposed Amendments to Wisconsin Statute (Rule) 809.23(3) (filed Jan. 25, 2008), asks the court to amend Wis. Stat. § (Rule) 809.23(3) as follows: 809.23(3) CITATION OF UUNPUBLISHED OPINIONS NOT CITED. (a) 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 claim preclusion, issue preclusion, or the law of the case. 4 No. ¶8 2005AP2767 IT IS ORDERED that the petition for review is granted, and the case is remanded to the court of appeals with directions to strike the language from footnote 6 as set forth herein. ¶9 ANNETTE KINGSLAND ZIEGLER, J., did not participate. (b) In addition to the purposes specified in sub. (a), an unpublished opinion may be cited for its persuasive value. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state, and a court need not distinguish or otherwise discuss it. 5 No. 1 2005AP2767

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