High court moves to stop stipulated vacatur.

Byline: Tony Anderson

The state's high court has taken steps toward eliminating the ability of parties in a lawsuit to ask that trial court or court of appeals decisions that they don't like be vacated or reversed.

The Wisconsin Supreme Court has "approved in principle" an order that would eliminate requests for stipulated reversal or stipulated vacatur of lower court decisions. That move took place Oct. 22, during a Supreme Court administrative session where the justices voted 4-2 in favor of the change. Justices David T. Prosser Jr. and Jon P. Wilcox opposed the change and Justice William A. Bablitch was absent.

The issue involved a request by the Judicial Council that Section 809.18 of the Wisconsin Statutes be changed to read that "Requests for stipulated reversal or stipulated vacatur of a lower court decision are not permitted."

Marquette Law Professor Shirley A. Wiegand chaired the council's Evidence and Civil Procedure Committee when it drafted the proposal. Wiegand told the justices that the proposal was designed to provide "predictability, uniformity and certainty in the law."

Wiegand highlighted a number of arguments supporting the proposed change. Among the issues was the consideration of to whom a court decision belongs - whether its the property of the litigants or whether it belongs to the public.

She noted that issuing a decision is a public act by a public official and it is not something for litigants to barter away as part of a settlement. Decisions can have a value for issue preclusion or a precedential value.

"It also impugns the integrity of the courts, taking a trial court's judgment and vacating it rather than having the parties settle and dismiss the case," Wiegand said. "It is a gesture to the trial court that the parties can simply agree that the decision was wrong."

She continued, "The loss of precedent when vacatur is granted by stipulation actually translates into an inefficient use of court resources. The lower courts have expended time in reviewing the merits of this case and now one of the parties has bought its way out of the decision."

Wiegand referred to the U.S. Supreme Court's decision in U.S. Bancorp Mortgage Co. v. Bonner Mall, 513 U.S. 18, 26 (1994) to support the Judicial Council's proposal. That decision, authored by Justice Antonin Scalia, dealt with the federal high court's refusal to vacate a federal court of appeals decision. The unanimous decision stated that in federal courts "mootness by...