The Wisconsin Supreme Court announced recently that any Court of Appeals decision which has been overruled, even in part, no longer holds any precedential value unless the supreme court expressly states that it has left some portion intact.  Blum v. 1st Auto & Casualty Ins. Co., 2010 WI 78, ¶ 56, 326 Wis. 2d 729, 786 N.W.2d 78.  This new rule will change long-standing appellate practice.  This new rule may mean a ‘net loss’ of useable precedent.

The court took up this question of procedure (and indirectly, substance) in an uninsured motorist coverage (UM) case.  The Blum court of appeals had relied in part on a decision which the supreme court had overruled fully, but which the court of appeals read to be overruled only in part.  2010 WI 78, ¶ 57.  Thus, under established jurisprudence, the earlier court of appeals decision seemed to retain some precedential value.

No more.  The supreme court determined that its own law-developing function would be ill-served by requiring it to address specifically every holding in a court of appeals decision to protect the coherence of the supreme court’s holding on a particular issue.  Id., ¶ 49.  Similarly, because the court of appeals is primarily error-correcting, its role should not include recognizing the precedential value of portions of published opinions that have been overruled.  Id., ¶ 50.  Creating a bright-line prohibition would seemingly lead to less confusion, and more efficient court operation.  Id., ¶ 53-54.

But the new “bright line” may have some shadows.  For instance, the three dissenters saw a difference between the Blum rule for “overruled” decisions, and the absence of such a rule (at least expressly) for a decision that is “reversed.”  Id., ¶ 91.  The rule implicitly may mean that “overruled” decisions no longer even hold persuasive value, see Wis. Stat. (Rule) § 809.23(3)(b), but that likely will be tested.  The dissent also lamented that the procedural issue should have been reached after soliciting input from Wisconsin judges and lawyers, via referral to the Wisconsin Judicial Council.  Id., ¶ 94.  Only counsel for Blum had argued for a new bright-line rule; neither counsel for the insurer nor the two amici took any position on the question. 

What is the practical effect?  First, there is an abundance of appellate decisions which have been partially overruled, and which now may not be cited as precedent.  In the last two years, for example, the supreme court itself relied on decisions which had been “overruled on other grounds.”[1]  Likewise the court of appeals, the circuit courts and many litigants have relied on discrete holdings in cases which were overruled in part.  Those practices will have to change.

But perhaps the change is only by a matter of degree.  The partially-overruled decisions apparently still may be cited for whatever persuasive value they retain.  In certain cases, petitioner-counsel may urge the supreme court to overrule only in part.  Time will tell whether the new Blum rule has eliminated confusion for the courts, improved judicial economy, or deprived litigants of useful authority which must be advocated for anew.

[1] See Roehl Transport, Inc. v. Liberty, 2010 WI 49, ¶ 114 n.41, 325 Wis. 2d 56, 784 N.W.2d 542; Christensen v. Sullivan, 2009 WI 87, ¶ 117 n.17, 320 Wis. 2d 76, 768 N.W.2d 798; Estate of Genrich v. OHIC Ins., 2009 WI 67, ¶29, 318 Wis. 2d 553, 769 N.W.2d 481; State v. Romero, 2009 WI 32, ¶ 49, 317 Wis. 2d 12, 765 N.W.2d 756.