Unpublished Opinions - To Cite or Not to Cite?

UNPUBLISHED OPINIONS –
TO CITE OR NOT TO CITE?
by Paul M. Simmons

You are preparing a motion for summary judgment. You find the decision that will win your case for you. It is directly on point and reaches the result you want the court to reach. There is just one catch. The decision has never been published. Do you cite it or not?

You know, of course, that there are rules against citing unpublished decisions. (You’ve known that ever since opposing counsel moved to strike your last brief for relying on unpublished authority.) The rule in Utah state courts says, “Unpublished opinions, orders and judgments have no presidential value and shall not be cited or used in the courts of this state, except for purposes of applying the doctrine of the law of the case, res judicata, or collateral estoppel.” Utah Code Jud. Admin. R. 4-508. The corresponding federal district court riles states: “Unpublished decisions of the district judges of this court may be cited, but only if the unpublished decision is furnished to the court and to opposing parties or their counsel when the memorandum is filed. Unpublished opinions of other courts shall not be cited as authority.” D. Utah 202(b)(5).

Like most rules, however, these rules leave several questions unanswered. What is an unpublished opinion? If I find the opinion on Westlaw of Lexis, hasn’t it been published, at least electronically? If an opinion must be printed to be published, isn’t it at least desktop published when I run out a copy on my desktop printer? Or, if I give a copy of that opinion to an associate, have I not published it?

Presumably, an unpublished opinion is an opinion the issuing court did not intend to be published. Many courts clearly identify certain opinions as not for publication. If such an opinion finds it way onto Westlaw or Lexis, arguably that should not change its designation as an unpublished opinion. Under this standard, even a published opinion may be “unpublished.” The California Rules of Court, for example, provide that an opinion certified for publication “shall not be published” if the California Supreme Court so orders. Cal. R. Ct. 976(c)(2). Thus, the California Reporter is full of California Court of Appeal decisions that have been ordered “not officially published.” Where the issuing court has not clearly identified an opinion as “not for publication,” however, the question of what constitutes an unpublished opinion is an open one.

The second questions raised by the proscription against citing unpublished opinions is, Why not? If the opinion is on point and well reasoned, why shouldn’t another court have the benefit of its wisdom?

There may be practical reasons for not citing unpublished opinions. A judge in a rural court may not have access to the opinion and may have to trust the attorney to use the case correctly. The proscription against citing unpublished opinions makes it harder for an unscrupulous attorney to mislead the court. See, e.g., Anderson v. Carney, 320 P. 1100, 1106 (Utah 1933). The problem is less of a problem nowadays when even rural judges often have easy access to vast, electronic databases. But even electronic databases do not have every opinion – even every published opinion. Nevertheless, the practical problem is easily overcome by requiring an attorney to attach a copy of the cited opinion to his or her brief. Then, to mislead the court, the attorney must have not only the morals of a Mark Hoffman but also his forgery skills.

A more likely reason for the proscription lies in the reason the decision was designated “not for publication” in the first place.”

There may be several reasons why a court would not want its opinion published. It may be concerned about the space published opinions take up in libraries with finite shelf space. Or it may have been more interested in resolving the case expeditiously than in undertaking a full-blown analysis of the law, and may not be comfortable with everything it has said. Neither explanation justifies preventing attorneys from citing unpublished opinions. Opinions should always be subject to “the scrutiny of analysis,” and a court should not be able to shield is opinions from searching examination merely by designating them “not for publication.” See, Re Rules of the U.S. Ct. of App. for the 10th Cir., adopted Nov. 18, 1986, 955 F.2d 36, 38 (10th Cir. 1992) (Holloway, C.J., Barrett and Baldock, JJ., dissenting).

A third (and perhaps the most common) explanation for why an opinion is unpublished is that the court did not think the case added anything to the law but simply applied well-recognized legal principles to the facts of the case. In California, for example, the court rules specify standards for publishing opinions. A lower court opinion may only be published if it does one of the following:

Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies, or criticizes with reasons given on existing rule;

• resolves or creates an apparent conflict in the la;
• involves a legal issue of continuing public interest; or
• makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law.

Cal. R. Ct. 976(b).

If an opinion is unpublished because the issuing or reviewing court does not think it materially advances the law, you can always cite the authorities the unpublished opinion relied on, without having to cite the opinion itself. But the reason for citing the opinion may be precisely because it is on all fours with the facts of your case, whereas the authorities it relies on are not. Why shouldn’t you be allowed to cite the opinion in that case? Who is in a better position to determine whether the decision advances the law – the issuing court, which cannot foresee the variety of factual scenarios in which the issues may arise again or a court faced with a new fact situation, which has to extrapolate from decided cases to reach a result? The latte may be grateful for all the help it can get.

That was the view of some judges of the United States Court of Appeals for the Tenth Circuit. The Court of Appeals for the Tenth Circuit also has a rule against citing unpublished opinions. See R. U.S. Ct. App., 10th Cir. 36.3. Three judges of the Court of Appeals for the Tenth Circuit dissented from the rule on the grounds that the “reasons for permitting citation of published precedents are just as cogent . . . in the case of unpublished rulings.” Re Rules of the U.S. Ct. of App. for the 10th Cir., adopted Nov. 18, 1986, 955 F.2d 36, 37 (10th Cir. 1992) (Holloway, C.J., Barrett and Badock, JJ., dissenting). As the dissenters noted, “Each ruling, published or unpublished, involves the facts of a particular case and the application of law – to the case. Therefore all rulings of this court are precedents, like to or not, and we cannot consign any of them to oblivion by merely banning their citation.” Id. The dissent added that prohibitions against citing unpublished opinions may deny a litigant “essential justice and fundamental fairness,” in violation of the constitutional rights of due process and equal protection. Id. At 37 & n.1.

The dissent has carried the day in the Court of Appeals for the Tenth Circuit, at least for the time being. On November 29, 1993, the court issued a general order suspending the prohibition against citing unpublished opinions until December 31, 1995, or until further order of the court. Currently, citation of unpublished decisions “is not favored,” but such a decision may be cited if (1) “it is believed that an unpublished opinion or order and judgment has persuasive value with respect to a material issue in a case and would assist the court in its disposition,” and (2) a copy of the decision is attached to the document in which it is cited or, if cited in oral argument, it is provided to the court and all other parties at the argument. See R. U.S. Ct. App., 10th Cir. 36.3, compiler’s notes.

I believe the current practice used by the Court of Appeals for the Tenth Circuit represents the most reasonable approach to citing unpublished opinions. Unit it is adopted in other jurisdictions, however, attorneys must learn to live with no-citation rules.

Which brings me to the next question: Why even consider citing an unpublished opinion? Often, the unpublished opinion is from another jurisdiction and is not controlling. Why risk incurring the court’s wrath by citing it? If the opinion’s reasoning is cogent and convincing, the same reasoning should persuade another court, regardless of whether you can cite it or not, and there is no proscription against borrowing someone else’s reasoning, published or unpublished. Unfortunately, we lawyers feel naked unless we can clothe ourselves in authority, and courts also tend to feel more comfortable if they can wrap themselves in the cloak of precedent. But if an unpublished opinion does no set forth its reasoning or its reasoning is flawed, citing the opinion may give one no more security than the emperor’s new clothes.

Nevertheless, the temptation to cite a really good unpublished decision can sometimes be too great. Fortunately, the local federal rule gives an attorney a way out. It does not prohibit all citations to unpublished authority. It only says that such cases “shall not be cited as authority.” There is good authority – published, no less (albeit second-hand) – for citing an authority not as authority. In England, it used to be the tradition that judges could not cite living authors as authority in judicial opinions. Once the Lord Chief Justice could not refrain from citing Professor Holdsworth’s History of English Law. Professor Holdsworth happens to still be living, so the Lord Chief Justice carefully referred to him as one “who is happily not an authority, meaning, one who is still alive.

Unhappily, unpublished opinions generally cannot be cited. Yet they can be persuasive and useful, even if they are not authoritative. I believe the time has come to put the proscription against citing them to rest. As long as the rules forbid citing unpublished decisions, however, you do so at your own risk.