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Citation of ALJ and LIRC Decisions

Darlene Martin v. St. Francis Home, WC Claim No. 1998-059173 (LIRC May 19, 2003), Footnote 1:

The applicant objects to the respondent's citation to the DILHR ALJ's decision case, asserting that Wis. Stat. § 809.23(3) prohibits the citing of a nonpublished opinion as precedent or authority. However, the court of appeals has held that Wis. Stat. § 809.23(3) does not prohibit the citation of circuit court decisions -- at least as for the limited purposes of persuasive, rather than binding, authority -- suggesting that the non-citation rule is limited to unpublished court of appeals decisions. Brandt v. LIRC, 160 Wis. 2d 353, 361-65 (Ct. App. 1991). Moreover, Wis. Stat. § 809.23(3) by its terms is limited to citations "in any court of this state."

Commission decisions are based on their own facts, and are not binding authority. See: Nick v. State Highway Commission, 21 Wis. 2d 489, 495 (1963) (administrative agencies like the commission are not bound by their own prior determinations) and Nelson Bros. v. Revenue Dept., 152 Wis. 2d 746, 756 (Ct. App. 1989) (administrative agencies are not bound by the strict doctrine of stare decisis). Nonetheless, the appellate courts consider whether the commission has previously issued decisions on an issue when considering the applicable level of deference on review. Langhus v. LIRC, 206 Wis. 2d 494, 503 note 7, 557 N.W.2d 450 (Ct. App. 1996); Virginia Surety v. LIRC, 2002 WI App 277, 16, 17, 258 Wis. 2d 665, 679-80, 654 N.W.2d 306.