Blum v. 1st Auto & Casualty Insurance Company, 2010 WI 78
¶42 We next address whether a court of appeals decision retains any precedential value when it is overruled by this court. We hold that when the supreme court overrules a court of appeals decision, the court of appeals decision no longer possesses any precedential value, unless this court expressly states otherwise.
A less obscure problem than you might think. As the court indicates, ¶43, the court of appeals adheres to a “general rule … that holdings not specifically reversed on appeal retain precedential value.” The court musters a number of such examples in ¶43. No more.
¶46 We now hold that … (u)nless this court explicitly states otherwise, a court of appeals opinion overruled by this court no longer retain any precedential value. This conclusion is supported by the constitutionally designated purposes of this court and the court of appeals, as well as practical considerations.
Lengthy discussion follows as to division of labor between supreme court (law-making) and court of appeals (error-correcting) that won’t be repeated here. Well, given amendment of the “no-cite” rule, lost “precedential value” doesn’t mean loss of all value, § 809.23(3)(b). Why can’t the court of appeals’ decision — those part(s) not specifically overruled anyway — be citable for “persuasive” as distinct from precedential effect? Note: 3 Justices dissent from this holding, ¶ 81, but a majority is garnered with the 2-Justice concurrence, ¶58.
Also see this subsequent post, discussing potential distinction between “reversing” and “overruling” the court of appeals.
