Court of Appeals Opinions: What Do They All Mean?

• Publication year: 1974
• Pages: 7

3 Colo.Law. 7 Colorado Lawyer 1974.

1974, March, Pg. 7. Court of Appeals Opinions: What Do They All Mean?

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Vol. 3, No. 5, Pg. 7

Court of Appeals Opinions: What Do They All Mean

By. Leo H. Smith

Leo H. Smith it Assistant Reporter of Decisions for the Colorado Supreme Court. The views expressed herein are solely his own and do not purport to represent in any way the position of either the Court of Appeals or the Supreme Court.

In a challenging article in last November's Colorado Lawyer,(fn1) an inconsistency was postulated as being present in the Colorado Court of Appeals cases that fall in the category of "certiorari denied---not selected for official publication."

In that article, it was pointed out that C.A.R. 35(f) states that denial of certiorari does not mean "approval by the Supreme Court of any opinion of the Court of Appeals"; yet, denial of certiorari is "appellate review" within the meaning of that term in the Colorado Constitution.(fn2) Thus cases which are not for official publication, certiorari denied are apparently placed in the limbo of having received a constitutionally required review by the Supreme Court, but not being "necessarily" approved by it.

This article is an attempt to point a way out of this difficulty and to aid the bench and bar in ascertaining the deference to be accorded the various classes of Court of Appeals cases.

Most of the classes of Court of Appeals opinions have a readily apparent significance, but for completeness each will be considered in turn.

Certiorari Granted

The first matter to note is that the opinions in all certiorari-granted cases are, as a matter of policy, selected for official publication. Thus, until the Supreme Court issues its opinion, the Court of Appeals opinion is stare decisis and is binding precedent in accordance with C.A.R. 35(f).

Obviously, after action by the Supreme Court the Court of Appeals decision may represent a definitive statement of Colorado law,(fn3) be totally contrary to Colorado law,(fn4) or fall somewhere in between.(fn5)

One point of caution might be made with

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regard to certiorari-granted cases. Occasionally such a case is dismissed on procedural grounds, or perhaps by action of the parties.(fn6) Under such circumstances, although the Court of Appeals opinion is a published one, it should be viewed somewhat more critically than a for official publication, eertiorari...