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A Wisconsin State Supreme Court opinion released earlier this year could lay waste to years of legal precedent in the state. Some attorneys are up in arms about the opinion, which they say runs counter to what’s been standard practice in the state for decades. The decision has started a debate that impacts all areas of Wisconsin law – from criminal to probate to family.

According to a recent column in the Wisconsin Law Journal by attorney and journalist David Ziemer, “Nobody knows, and no one can know, just how much common law has been nullified by this new rule. Hundreds of legal rules that courts and litigants have relied on for decades may have become worthless overnight.”

The issue at stake is whether all precedents set by a state appeals court decision are knocked out when the Supreme Court overturns that decision. If the high court only overrules one of the precedents as it overturns the case, do the rest still stand?

Until a July opinion (pdf) from the court, standard practice in the state was that they did – sections of appeals court decisions, unless specifically overruled by the Supreme Court, were still fair game for use in future arguments. For example, in a personal injury case, the Supreme Court might rule the appeals court misinterpreted a state statute – but express no opinion on its review of damages in the case. The custom, endorsed by the appeals courts, allowed the latter precedent to be cited.

But the majority opinion in the July case says that shouldn’t be happening. Written by Justice David Prosser, it says that “unless this court explicitly states otherwise, a court of appeals opinion overruled by this court no longer retains any precedential value.” The opinion specifically tosses out the old court of appeals guideline that “holdings not specifically reversed on appeal (to the Supreme Court) retain precedential value.”

The case originated in Sauk County where a man, Kevin Blum Jr., was severely injured in an accident with an uninsured pickup truck. He sued his own insurance company, arguing he was owed uninsured motorist benefits guaranteed by state law. The driver of the pickup truck, however, wasn’t its owner and had insurance that covered the man’s injuries. The Supreme Court upheld the appeals court ruling that the man wasn’t entitled to the extra benefits – but disagreed with how the lower court arrived at that decision.

The appeals court used a precedent from a case the Supreme Court had overruled on another issue. That should be a no-no, four out of the seven justices opined.

The dissenting opinion by Justice Patience Roggensack argues that Prosser’s opinion is heavy-handed and dives into a question not really at issue in the case. “Until there is future study, it would be cavalier to decide it,” she writes. The majority’s decision is made, she adds, “without input from the many Wisconsin judges and lawyers who will be impacted by the court’s decision.”

The beginning of a debate

The issue has arisen in previous cases. Tom Shriner, a partner at Foley and Lardner and a specialist in appellate law in the state, tells NewsBuzz the July case “is the beginning, rather than the end of a dialogue about this. This is an important issue the Supreme Court ultimately had to decide. I think this is going to be worked out in future cases that present the issue in different ways.”

Prosser and Roggensack

He adds, “I don’t think what we’ve got here is the answer for all time and forever.”

If cases meet certain standards requiring review, appeals courts must accept them, according to Shriner. The Supreme Court can pick and choose, meaning lawyers often look to appellate decisions to argue cases. “The Supreme Court has not decided every issue of law,” says John Kircher, a law professor at Marquette University.

He says specific precedents set by appeals courts, unless overruled by the Supreme Court, should stand even if another issue in the case has led to its reversal. “It’s illogical if you’re a review court and you’re knocking out one part of a decision to say the whole opinion is knocked out,” he says. “It just doesn’t make sense to me.”

Jay Grenig, also a law professor at Marquette, doesn’t think the rule will be terribly disruptive. “Lawyers will not find this that impossible to deal with,” he says. “It avoids the problem, for better or worse, of trying to decide if the court decided on an issue or not. It does provide a simple bright-line test.”

Roggensack recommended referring the issue to the Wisconsin Judicial Council, a panel of judges, lawyers, state officials and legal experts that advise the Supreme Court and the state Legislature.

So far, the Blum case has had a relatively low profile. Grenig says he’s not sure how many lawyers in the state have read the opinion and realize what it means. “Some attorneys are going to get surprised in court,” he says.

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