Bringing Unpublished Opinions Into the 21st Century
As a 2017 graduate of Marquette University Law School, I have never conducted legal research without the benefit of online legal research tools such as Lexis, Westlaw, and Fastcase. Though Marquette, in taking its diploma privilege responsibilities seriously, made me aware of the regulation on citation to unpublished Wisconsin Court of Appeals opinions in Wis. Stat. § 809.23(3), I did not fully comprehend the enormous body of legal analysis that falls within § 809.23(3)’s provisions until I interned for a local circuit court judge. My experience drafting memoranda that analyzed pending motions for the judge revealed how frequently the most on-point legal analysis from Wisconsin appellate courts for a given case is concealed in an opinion to which citation is prohibited under § 809.23(3).
The notion that certain appellate court decisions may not be cited to courts in that state is not intuitive, at least not in an age when Westlaw, Lexis, and Fastcase make finding unpublished opinions just as easy as finding published opinions; after all, both types of opinions appear in the same set of search results. Not surprisingly, whether through ignorance of the rule or inattention to the details of an opinion, attorneys sometimes cite an opinion in contravention of § 809.23(3). An attorney who does so risks the reviewing court ignoring the argument for lack of support and even sanctions.
A rule that is not intuitive but features high stakes for violation should enjoy the support of those who are most affected by it and strong public policy rationales. As Part I below explains, while § 809.23(3) made some sense when enacted, technological advances and other developments have consistently eroded those rationales, resulting in multiple petitions to amend § 809.23(3). After decades of delay, the Wisconsin Supreme Court relented and granted the most recent petition in 2009. As Part II discusses, the 2009 amendment was a welcome and beneficial start but is still inadequate to remedy all problems with § 809.23(3). Finally, in Part III below, I propose a simple solution: take the lid off unpublished opinions and allow citation to any Wisconsin Court of Appeals opinion ever written.
Wisconsin Stat. § 809.23(3) governs the citation of unpublished opinions in Wisconsin courts. For its first three decades of existence—from enactment in 1978 through amendment in 2009—it prohibited citation of unpublished opinions in almost all circumstances:
An unpublished decision is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of res judicata, collateral estoppel, or law of the case.
Section 809.23 had noble origins. The Judicial Council Committee’s note on the rule as adopted in 1978 identified four policy rationales for the rule:
1. The type of opinion written for the benefit of the parties is different from an opinion written for publication and often should not be published without substantial revision;
2. If unpublished opinions could be cited, services that publish only unpublished opinions would soon develop forcing the treatment of unpublished opinions in the same manner as published opinions thereby defeating the purpose of nonpublication;
3. Permitting the citation of unpublished opinions gives an advantage to a person who knows about the case over one who does not;
4. An unpublished opinion is not new authority but only a repeated application of a settled rule of law for which there is ample published authority.
In the days before online legal research, these rationales made perfect sense. Finding—let alone analyzing—unpublished opinions on a given subject would have been a monumental task. Thus, freeing attorneys from the need to find unpublished opinions made for solid public policy to reduce the costs of legal services. Furthermore, the criteria for publishing court of appeals opinions contained in Wis. Stat. § 809.23(1) rendered citation to unpublished opinions unnecessary, or at least they should have.
Practitioners, and some judges, grew weary of the limitation on citing to unpublished opinions. As technology advanced, finding unpublished opinions was no longer the monumental challenge it was in 1978. Prohibiting citation to unpublished court of appeals opinions while inviting other persuasive authority meant that opinions from courts in other jurisdictions, legal treatises, law review articles, and even periodical publications such as this one enjoyed higher status in Wisconsin courts than unpublished court of appeals opinions. In addition, the federal system and other states began backing off strict “no citation” rules concerning unpublished opinions.
Concerns with the original version of § 809.23(3) resulted in three rules petitions seeking to amend § 809.23(3). The Court denied petitions to amend the substance of § 809.23(3) in 1990 and 2003. The per curiam opinion accompanying the 1990 denial acknowledges increasing access to unpublished opinions through “services printing … unpublished appellate opinions,” “automated legal research tools,” and “availability at law libraries.” The Court nonetheless rejected this reasoning because researching unpublished decisions—even if readily available—still takes time and will increase fees to clients. As an additional basis to deny the petition, the Court expressed fears that trial and appellate courts “might unwittingly give unpublished opinions more weight than that to which they are entitled.” This could result in courts improperly relying on unpublished opinions for their holdings rather than precedential published opinions. Justice Abrahamson dissented, disagreeing with all four of the Judicial Council Committee’s policy rationales from 1978.
Justice Abrahamson first questioned whether courts truly save any time through use of unpublished opinions based on research finding that published and unpublished opinions from federal circuit courts are of the same general quality. Second, Justice Abrahamson acknowledged the reality that services providing access to unpublished opinions already existed. Third, Justice Abrahamson questioned whether prohibiting citation to unpublished opinions actually provided any benefit to economically disadvantaged areas or clients; after all, an attorney who is aware of an unpublished decision can adopt its reasoning without the opposing attorney knowing its source whereas citation puts everything into the open. Finally, Justice Abrahamson acknowledged research showing that the court of appeals frequently declines to publish opinions that fulfill the criteria for publication by, for example, presenting “significant variations or meaningful explanations that go beyond mere application of settled law.” Allowing parties to instead cite unpublished opinions both protects constitutional rights and helps the court of appeals maintain consistency among decisions, whether precedential or otherwise.
The per curiam opinion accompanying the 2003 denial included no reasons for the Court’s decision. Two concurring opinions, however, elucidate the majority’s rationale. Justice Sykes, joined by Justice Bablitch and Justice Wilcox, essentially emphasized the first original rationale for the rule: opinions intended for future use—as opposed to resolving only the case at hand—require additional attention and time that the court of appeals does not have given its ever-increasing caseload. Justice Ann Walsh Bradley took a more nuanced approach, recognizing technological advancements that undercut many of the original rationales for the rule but finding the advancements insufficient to warrant change. Chief Justice Abrahamson again dissented, as she did in 1990, but this time joined by a colleague, Justice Crooks.
Though her 2003 dissent largely reiterates the points made in her 1990 dissent, Chief Justice Abrahamson raised two new major points. First, she pointed out that Wisconsin courts allow citation to any non-binding authority other than unpublished court of appeals opinions. Thus, for example, opinions of courts in other jurisdictions, law review articles, treatises, newspapers, and even poetry held higher status in Wisconsin courts than unpublished court of appeals opinions. As the advisory committee to Federal Rule of Appellate Procedure 32.1 (eliminating federal prohibitions on citing unpublished circuit court decisions) noted, “[it] is difficult to justify a system that permits parties to bring to a court’s attention virtually every written or spoken word in existence except those contained in the court’s own ‘unpublished’ opinions.” Second, and perhaps relatedly, Chief Justice Abrahamson noted that multiple states, in addition to numerous federal circuits and potentially (at that time) the federal system as a whole, had amended their citation rules to allow citation to unpublished opinions as persuasive authority.
Only five and a half years later, the court granted a similar petition to amend subsection (3). This amendment allows parties to cite certain unpublished opinions issued after July 1, 2009 for their persuasive value, bringing § 809.23(3) to its current form:
(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.
Per curiam opinions issued at any time and unpublished authored opinions issued before July 1, 2009 remain off limits. The 2009 order adopting this change came with little reasoning, and Justice Ann Walsh Bradley filed the lone separate writing, a dissent simply stating that nothing had changed since 2003 to change her mind on the need to amend the rule.
II.Problems Still Remain
While the 2009 amendment was a nice and welcome start, the time has come for further change to allow citation of every court of appeals opinion ever written. Certain changes in circumstances since 2009, and the lack of change in certain circumstances since 2009 (or even 1990, for that matter) support this change.
First, technology has continued to progress such that the ubiquity of online legal research systems has made unpublished opinions just as easy to find as published opinions. Every Wisconsin-licensed attorney has access to unpublished court of appeals opinions through Fastcase, the online legal search tool provided as a benefit to State Bar membership. Those attorneys who use Lexis or Westlaw enjoy even more user-friendly access to unpublished court of appeals opinions. Consequently, finding unpublished opinions is not a challenge for 21st-century attorneys; legal research platforms already present both published and unpublished opinions. Rather, the challenge comes when attorneys must take the additional step of identifying a relevant opinion as unpublished and then determining whether the opinion may be cited under the current version of § 809.23(3)(b). An “all-or-nothing” approach to unpublished court of appeals opinions streamlines research for every Wisconsin-licensed attorney.
Second, because the court of appeals does not always apply the publication criteria properly, relevant case law can be concealed in uncitable opinions. Frustrations with the current version of § 809.23(3) largely arise out of the court of appeals’ under-publication of opinions. This is an issue Justice Abrahamson identified as early as 1990 and scholars identified even earlier. Only recently, however, has the Wisconsin Supreme Court (as an institution) taken note of this issue in any official capacity, noting in a 2018 opinion that “[t]he court of appeals … has been issuing unpublished opinions, per curiam opinions, or summary disposition decisions even when the issue satisfies the criteria for publication.” Though proper application of the publication criteria would prospectively alleviate many concerns with § 809.23(3), nothing short of permission to cite all previously-issued court of appeals opinions fully corrects past decisions erroneously declining to publish certain opinions.
For example, I recently found myself defending a workers’ compensation insurer against allegations that it violated Wis. Stat. ch. 146 when it procured mental health records without a valid release for purposes of contesting an application to reopen a settlement before the Wisconsin Department of Workforce Development (“DWD”). The plaintiff sought to reopen the workers’ compensation settlement on the basis that she was not competent to enter the settlement at mediation or sign the settlement agreement thereafter.
Wisconsin law holds that a worker’s compensation claimant waives her physician-patient privilege upon filing a worker’s compensation claim: “An employee who … files an application for hearing waives any physician-patient … privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation.” The plaintiff took the position that the mental health records were unrelated to the “condition for which [she] claims compensation,” which was a shoulder injury. The insurer took the position that mental health records became part of the worker’s compensation case when the plaintiff moved the DWD to set aside the previous settlement because she lacked capacity to make the agreement. The case therefore turns on the scope of the term “condition for which the employee claims compensation.”
Naturally, all parties and the circuit court turned to case law to inform our reading of the statutory language. Unfortunately, an attorney searching for “102.13(2)(a)” in Westlaw (my employer’s online legal research provider) finds a single appellate decision: Wistrom v. Employers Insurance of Wausau, 2002 WI App 1, 249 Wis. 2d 489, 639 N.W.2d 224 (Nov. 20, 2001) (unpublished per curiam decision). Though not directly on point, the Wistrom decision would have proven beneficial to the parties’ analysis. Consistent with § 809.23(3), both parties refrained from citing it to the circuit court because the opinion was per curiam and released before July 1, 2009 (both of which, of course, independently prohibit citation).
Current law allows any person to request that an unpublished opinion authored by a member of a three-judge panel be published with no time restrictions. However, a person who wishes to see an unpublished per curiam opinion be published must file the request within 20 days after the court of appeals releases the opinion, and the relief is not publication, but rather withdrawal of the per curiam opinion and issuance of an authored opinion. This procedure is useful only if an attorney (1) becomes aware of and (2) recognizes the usefulness of a per curiam opinion within 20 days of its release—an unlikely proposition. Furthermore, the rules make no allowance for an opinion in an appeal decided by one judge pursuant to Wis. Stat. § 752.31(2) and (3) to become published after the fact. Even where relief is available, the court of appeals rarely grants such relief under § 809.23(4), so this procedure is of limited help in resolving the problem of under-publication of opinions.
Because Wistrom is unpublished, per curiam, and far more than twenty days old, Wis. Stat. § 809.23(4)(c) provided no relief to the parties in my aforementioned case. Thus, the attorneys’ only option was to adopt the reasoning of the unpublished decision without citation and hope that the circuit court will find the reasoning persuasive and/or find the decision itself. The circuit court in my case did find and reference Wistrom in its oral decision on the insurer’s motion for judgment on the pleadings. This raises another ambiguity in § 809.23(3) and a third problem with the rule in its current form: to what extent does the prohibition against citing uncitable opinions “in any court of this state as precedent” prohibit citations by courts themselves? The supreme court has emphasized the modifier “as precedent.”
The court of appeals recently analyzed an assertion that a circuit court improperly relied on an uncitable opinion. The court of appeals easily concluded that the citing party violated § 809.23 by citing an uncitable opinion to the circuit court. The court of appeals then concluded that the circuit court did not rely on the opinion. The court of appeals did not, however, analyze or specifically state whether the circuit court would have been wrong if it had relied on the uncitable opinion. In light of this uncertainty, circuit courts face the same temptation as attorneys to borrow the analysis of an uncitable opinion without expressly acknowledging it. The public would be far better off knowing exactly on what authority circuit courts rely.
Finally, the current version of § 809.23(3) leaves landmines for federal courts attempting to apply Wisconsin law. On the one hand, the Seventh Circuit Court of Appeals has said that “[a] non-case for Wisconsin’s own purposes is a non-case in federal courts.” Other federal courts (including an opinion, albeit unpublished, from the Seventh Circuit itself) have not taken such a stringent approach. The effect of § 809.23(3) on federal courts, at least in the Eastern District, is somewhat complicated by local rule 7(j)(1), which allows citation to “unreported or non-precedential opinions, decisions, orders, judgments, or other written dispositions” except as prohibited by Seventh Circuit Rule 32.1. Therefore, allowing unpublished opinions to be cited would alleviate confusion in state and federal courts alike.
My proposed solution substantially simplifies the citation of unpublished opinions, amending Wis. Stat. § 809.23(3) to say:
(a)Any decision of the court of appeals, no matter its form, may be cited to support a claim of claim preclusion, issue preclusion, or the law of the case.
(b) Any opinion of the court of appeals may be cited for its persuasive value. Orders, including summary disposition orders, are not “opinions” for purposes of this paragraph and may not be cited for their persuasive value to or by any court of this state. Any person citing to an unpublished opinion shall structure the citation in a way that makes clear the opinion’s publication and authorship status.
This language allows attorneys and courts to cite any unpublished opinion, no matter when issued, while keeping summary disposition orders uncitable.
This proposed rule resolves the problems analyzed above. First—and most importantly—courts and attorneys benefit from the full history of the court of appeals’ legal analysis. No longer will an attorney be dumbfounded to find that he cannot cite the only appellate opinion construing a particular statute. No longer will a circuit court be left in the unenviable position of citing to an uncitable opinion or nothing when interpreting a statute. No longer must a federal court wrestle with the effects of Wisconsin’s citation rule.
Second, the opportunity and stakes for attorney errors are lessened. An attorney who unwittingly cites an unpublished court of appeals opinion risks only a less persuasive argument, not sanctions. The only potential pitfall for attorneys is in citations: attorneys must be careful to properly cite unpublished opinions to make the opinion’s publication and authorship status plain to the reviewing court so that the court can afford the proper level of persuasive weight. This issue, however, is just as present under the current rule.
Finally, this rule mitigates the consequences in those situations when the court of appeals issues an opinion as unpublished—and particularly per curiam—that could have been published. Given the research indicating that unpublished opinions are generally of no lower quality than published opinions, this change would allow every court of appeals opinion to receive the respect it deserves.
In the 21st century, unpublished opinions are harder to avoid than they are to find. To put courts and attorneys in the best position to reach the proper result, the Wisconsin Supreme Court should update Wis. Stat. § 809.23(3) to catch up to this new reality.
Erik M. Gustafson is an associate in the Milwaukee office of Borgelt, Powell, Peterson & Frauen, S.C. His practice is entirely devoted to representing Wisconsin insurance companies, with his practice focused on first-party property and third-party liability insurance coverage. Erik earned his B.A., summa cum laude, from Creighton University in 2014, and his J.D., magna cum laude, from Marquette University Law School in 2017. Before joining Borgelt, Powell, Peterson & Frauen, S.C., Erik clerked for Justice Michael J. Gableman of the Wisconsin Supreme Court during the 2017-2018 court term.
 For the sake of clarity, I use the term “case” to mean the dispute before the court, “decision” to mean the court’s resolution of the dispute, and “opinion” to mean a court’s written explanation of its decision. Orders, including summary disposition orders, are not “opinions” for purposes of this article.
 All references to the Wisconsin Statutes are to the 2019–20 version unless otherwise indicated.
 See, e.g., Munger v. Seehafer, 2016 WI App 89, ¶ 49 n.15, 372 Wis. 2d 749, 890 N.W.2d 22.
 Wis. Stat. § 809.23(3) (1977-78).
 In re Amendment of Section (Rule) 809.23(3), Stats., 155 Wis. 2d 832, 833, 456 N.W.2d 783 (1990) (quoting Wis. Stat. § (Rule) 809.23, Judicial Council Committee Note, 1978).
 Id. at 834.
 In 2001, the Court amended § 809.23(3) to replace references to “res judicata” and “collateral estoppel” with “claim preclusion” and “issue preclusion,” respectively, to reflect the Court’s preferred nomenclature. In re Amendment of Wis. Stat. § 809.23, 2001 WI 135, 248 Wis. 2d xvii. The rule petition also included a proposal to allow partial publication of court of appeals opinions, but the Court denied this portion of the petition. Id.
 The petition at issue in the 1990 order would have added the following to the original Wis. Stat. § 809.23(3):
Unpublished opinions may also be cited for persuasive and informational purposes if the person making reference to the unpublished opinion contemporaneously provides the court and all opposing parties with a copy of the opinion and copies of all other unpublished opinions of the Court of Appeals of which the attorney had knowledge, the holdings of which are directly adverse to the cited opinion upon the issue for which it is cited.
In re Amendment, 155 Wis. 2d at 836 n.2 (Abrahamson, J., dissenting).
 Id. at 834.
 Id. at 835.
 Id. at 835-45 (Abrahamson, J., dissenting).
 Id. at 839 (Abrahamson, J., dissenting) (citing Lauren K. Robel, The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeal, 87 Mich. L. Rev. 940 (1989)).
 Id. at 839-41 (Abrahamson, J., dissenting).
 Id. at 841-43 (Abrahamson, J., dissenting).
 Id. at 843-44 & n.8 (Abrahamson, J., dissenting) (quoting David L. Walther, Patricia L. Grove and Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin 17-4 (1986)).
 Id. at 844.
 The petition at issue in the 2003 order would have amended § 809.23(3) to state:
An unpublished opinion is of no precedential value except that it may be cited in support of claim preclusion, issue preclusion, or the law of the case. An unpublished opinion issued on or after [insert effective date], that is not a per curiam opinion or a summary disposition order, may also be cited for its persuasive value, provided that the party citing the opinion files a copy of it with the court, serves a copy of it upon all parties together with the brief or other paper in which the opinion is cited and clearly disclosed in all written materials and in all oral presentations that it is an unpublished opinion. Because an unpublished opinion is not precedent, it need not be distinguished or otherwise discussed by any court.
In re Amendment of Wis. Stat. § (Rule) 809.23(3), 2003 WI 84, ¶ 53, 261 Wis. 2d xiii (Abrahamson, J., dissenting).
 Id. ¶¶ 15-39 (Sykes, J., concurring).
 Id. ¶¶ 8-11 (Bradley, J., concurring).
 Id. ¶¶ 42-82 (Abrahamson, C.J., dissenting).
 Id. ¶ 43 (Abrahamson, C.J., dissenting).
 Id. (quoting U.S. Advisory Committee Comment to New Rule 32.1 (May 15, 2003)).
 As of the date of the 2003 order, July 1, 2003, a proposal to create Federal Rule of Appellate Procedure 32.1 to allow citation to unpublished opinions was pending for public comment. Id. ¶ 44 n.10. The rule was ultimately adopted effective December 1, 2006. See Fed. R. App. P. 32.1.
 In re Amendment, 2003 WI 84, ¶ 53 (Abrahamson, C.J., dissenting).
 In re Amendment of Wis. Stat. § (Rule) 809.23(3), 2009 WI 2, 311 Wis. 2d xxv.
 Id. For clarity and brevity, I refer to unpublished authored decisions issued before July 1, 2009, and unpublished per curiam decisions as “uncitable opinions.”
 Id. ¶ 1 (Bradley, J., dissenting).
 In re Amendment, 155 Wis. 2d at 843–44 & n.8 (Abrahamson, J., dissenting) (citing Walther, Grove and Heffernan, Appellate Practice and Procedure in Wisconsin 17-4 (1986)).
 Deutsche Bank Nat’l Tr. Co. v. Wuensch, 2018 WI 35, ¶ 26 n.13, 380 Wis. 2d 727, 911 N.W.2d 1.
 Wis. Stat. § 102.13(2)(a).
 See id.
 2001 WL 1465314, 2001 Wis. App. LEXIS 1188.
 Wis. Stat. § 809.23(4)(a).
 Wis. Stat. § 809.23(4)(c).
 See Wis. Stat. § 809.23(4)(b).
 Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin 17-4 (8th Ed. Jan. 2020).
 State v. Higginbotham, 162 Wis. 2d 978, 996-99, 471 N.W.2d 24 (1991) (allowing parties to cite uncitable opinions in petitions for review to demonstrate a decisional conflict for purposes of Wis. Stat. § 809.62(1)(d)); accord Deutsche Bank, 380 Wis. 2d 727, ¶ 26 n.13 (citing uncitable opinions to show conflicting court of appeals opinions); see also Showers Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶ 33 n.14, 350 Wis. 2d 509, 835 N.W.2d 226 (citing uncitable opinions “solely to demonstrate that courts have used particular language from other cases”).
 Avonelle M. Kissack Living Tr. v. Am. Transmission Co., LLC, 2020 Wis. App. LEXIS 387, ¶¶ 86-91, 2020 WL 4873255, 394 Wis. 2d 187, 949 N.W.2d 883 (Aug. 20, 2020) (unpublished opinion authored by a single judge).
 Id. ¶ 89.
 Id. ¶ 90.
 See id.
 Cf. In re Amendment, 155 Wis. 2d at 842 (Abrahamson, J., dissenting) (“Under the present rule a lawyer who knows about an unpublished decision may use the reasoning of the case without advising opposing counsel of the decision. The no-citation rule does not prohibit use of unpublished opinions; it only prohibits acknowledging use of unpublished opinions.”).
 Harnischfeger Corp. v. Harbor Ins. Co., 927 F.2d 974, 976 (7th Cir. 1991) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)).
 Shea v. Smith, No. 00-1229, 2000 U.S. App. LEXIS 34002, 2000 WL 1875733 at *2 (7th Cir. 2000) (unpublished opinion) (“Although these unpublished opinions do not bind Wisconsin courts, we consider them persuasive indicators of how Wisconsin’s court might decide this issue.” (citations omitted)); Doty v. Doyle, 182 F. Supp. 2d 750, 752 n.3 (E.D. Wis. 2002) (“Nonetheless, § 809.23(3) does not preclude such unpublished opinions from being cited to or by other courts, such as this federal district court or the state courts of other states, for whatever persuasive value they may have.”); see also Wickman v. State Farm Fire & Cas. Co., 616 F. Supp. 909, 920 (E.D. Wis. 2009) (citing unpublished opinion from 2007 without reference to § 809.23(3)).
 Wis. L. Civ. R. 7(j)(1) (May 2020); see also RMS of Wis., Inc. v. Shea-Kiewit Joint Venture, No. 13-CV-1071, 2016 U.S. Dist. LEXIS 43915, 2016 WL 1267168 at *2 (E.D. Wis. Mar. 31, 2016) (separating concepts of permission to cite unpublished opinions to federal courts with proper weight afforded by federal courts under Erie, 304 U.S. 64).
 See Deutsche Bank, 380 Wis. 2d 727, ¶ 26 n.13 (“The Wisconsin appellate court system functions fairly and efficiently only if the court of appeals fulfills its responsibility to publish opinions according to Wis. Stat. § 809.23(1).”).