Section 809.23 - Rule (Publication of opinions)(1) CRITERIA FOR PUBLICATION. (a) While neither controlling nor fully measuring the court's discretion, criteria for publication in the official reports of an opinion of the court include whether the opinion: 1. Enunciates a new rule of law or modifies, clarifies or criticizes an existing rule;2. Applies an established rule of law to a factual situation significantly different from that in published opinions;3. Resolves or identifies a conflict between prior decisions;4. Contributes to the legal literature by collecting case law or reciting legislative history; or5. Decides a case of substantial and continuing public interest.(b) An opinion should not be published when: 1. The issues involve no more than the application of well-settled rules of law to a recurring fact situation;2. The issue asserted is whether the evidence is sufficient to support the judgment and the briefs show the evidence is sufficient;3. The issues are decided on the basis of controlling precedent and no reason appears for questioning or qualifying the precedent;4. The decision is by one court of appeals judge under s. 752.31(2) and (3);5. It is a per curiam opinion on issues other than appellate jurisdiction or procedure;6. It has no significant value as precedent.(2) DECISION ON PUBLICATION. The judges of the court of appeals who join in an opinion in an appeal or other proceeding shall make a recommendation on whether the opinion should be published. A committee composed of the chief judge or a judge of the court of appeals designated by the chief judge and one judge from each district of the court of appeals selected by the court of appeals judges of each district shall determine whether an opinion is to be published.(3) CITATION OF UNPUBLISHED OPINIONS. (a) An unpublished opinion may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of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, and except as provided in par. (b).(b) In addition to the purposes specified in par. (a), an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge under s. 752.31(2) may be cited for its persuasive value. A per curiam opinion, memorandum opinion, summary disposition order, or other order is not an authored opinion for purposes of this subsection. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state. A court need not distinguish or otherwise discuss an unpublished opinion and a party has no duty to research or cite it.(c) A party citing an unpublished opinion shall file and serve a copy of the opinion with the brief or other paper in which the opinion is cited.(4) REQUEST FOR PUBLICATION. (a) Except as provided in par. (b), any person may at any time file a request that an opinion not recommended for publication or an unreported opinion be published in the official reports.(b) No request may be made for the publication of an opinion that is a decision by one court of appeals judge under s. 752.31(2) and (3) or that is a per curiam opinion on issues other than appellate jurisdiction or procedure.(c) A person may request that a per curiam opinion that does not address issues of appellate jurisdiction or procedure be withdrawn, authored and recommended for publication. That request shall be filed within 20 days of the date of the opinion and shall be decided by the panel that decided the appeal.(d) A copy of any request made under this subsection shall be served on the parties to the appeal or other proceeding in which the opinion was filed. A party to the appeal or proceeding may file a response to the request within 5 days after the request is filed.Amended by Sup. Ct. Order 20-07 (2021), eff. 7/1/2021.Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii; 1981 c. 390 s. 252; Sup. Ct. Order, 109 Wis. 2d xiii (1982); Sup. Ct. Order, 118 Wis. 2d xiii (1984); 1991 a. 189, Sup. Ct. Order No. 96-10, 208 Wis. 2d xiii (1997), Sup. Ct. Order No. 01-04, 2001 WI 135, 248 Wis. 2d xvii; Sup. Ct. Order No. 08-02, 2009 WI 2, 311 Wis. 2d xxv. 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 (1982). Sub. (3) does not ban citation to circuit court opinions. Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991). 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 (1991). 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 (1997), 95-1963. 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, 06-0014. 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.