Appellate court rules governing publication, citation, and precedential value of opinions: an update.

• Author: Cleveland, David R.

INTRODUCTION

In the mid-1970s, the federal courts of appeals began to issue opinions designated "unpublished" that were not typically published, citable, or accorded any precedential value. Many states followed suit. A great debate ensued questioning the practice, which has consumed considerable academic attention and appellate rulemaking time. (1) States continue to vary in their treatment of unpublished opinions and even in the wake of Federal Rule of Appellate Procedure 32.1, intended to provide uniformity, the federal circuits remain inconsistent. (2)

Scholars, judges, and practitioners have found previous surveys of practice regarding these opinions useful. (3) The authors of those early studies noted a trend toward increased citability, even between 2001 and 2004. This increase in citability continues, and increasingly, states are according all decisions precedential value or no longer issuing opinions designated as either "unpublished" or "non-precedential." More than half the states now either permit citation of, or do not issue, unpublished opinions. Since the last major survey in 2004, seven additional states--Alaska, Hawaii, Kansas, New Mexico, North Carolina, Pennsylvania, and Wisconsin--have begun to permit citation of unpublished opinions, and one--Louisiana--has accorded precedential value to unpublished opinions. Five additional states--Arkansas, Ohio, Texas, Utah, and Wyoming--have stopped issuing unpublished appellate opinions.

Earlier surveys, much like earlier debate on the issue, tended to look only at publication and citation practices. (4) This survey seeks not only to update the information on these issues, but also to provide information about various jurisdictions' rules on the precedential value accorded to decisions. The charts that follow, like those in prior surveys, attempt to convey the essence of each jurisdiction's rules. The goal is to provide a quick reference to the rules from each jurisdiction and a source for comparison of jurisdictions. The survey describes the rules from each jurisdiction as written, but readers should remember that the extent to which courts fastidiously follow them may vary. (5) And, of course, this area of law continues to develop, largely in the direction of greater official publication and citation. (6)

David R. Cleveland, Professor of Law, Valparaiso University. Professor Cleveland is grateful to Alyssa Spartz for her excellent research assistance. Additionally, Professor Cleveland would like to thank Michael Schmier, whose inquiry into the current state of publication rules nationwide led to the realization that there was no recent survey of state practices.

(1.) David R. Cleveland, Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J. APP. PRAC. & PROCESS 61, 62 n.5 (2009) (collecting law review articles); Patrick J. Schiltz, Much Ado About Little: Explaining the Sturm und Drang Over the Citation of Unpublished Opinions, 62 Wash. & Lee L. Rev. 1429, 1429-30 (2005) ("On the day that I became Reporter, the issue of unpublished opinions was the most controversial issue on the Advisory Committee's agenda. Eight years later, the issue of unpublished opinions continues to be the most controversial issue on the Advisory Committee's agenda. I have devoted more attention to the unpublished-opinions issue than to all of the other issues the Advisory Committee has faced--combined.")

(2.) David R. Cleveland, Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1, 11 J. App. Prac. & PROCESS 19, 19-20 (2010). This article remains an accurate survey of federal rules on these issues.

(3.) Two that appeared in early issues of this journal are particularly valuable. See Melissa M. Serfass & Jessie Wallace Cranford, Federal and State Court Rules Governing Publication and Citation of Opinions: An Update, 6 J. APP. PRAC. & PROCESS 349 (2004) [hereinafter Serfass-Cranford Update]', Melissa M. Serfass & Jessie Wallace Cranford, Federal and State Court Rules Governing Publication and Citation of Opinions, 3 J. APP. PRAC. & PROCESS 251 (2001) [hereinafter Serfass-Cranford],

(4.) See generally Serfass-Cranford, supra note 3; Serfass-Cranford Update, supra note 3; see also Patrick J. Schiltz, The Citation of Unpublished Opinions in the Federal Courts of Appeals, 74 FORDHAM L. Rev. 23, 30 (2005) (noting that the eight-year rulemaking process culminating in Rule 32.1 was focused on citation rather than precedential value).

(5.) See Cleveland, supra note 1, at 165-72 (collecting evidence that the rules of the various federal courts of appeals regarding publication are not well followed, and that despite federal rules prohibiting the citation of unpublished opinions before 2007, both attorneys and judges regularly researched, considered, and cited unpublished opinions).

(6.) Should the reader find the rules of publication or citation in any state changed from those published here, the author would welcome that information. He can be contacted at david.cleveland@valpo.edu.

Rules Governing Publication, Citation, and Precedential Value of Opinions--2016 Update State Publication Guidelines Alabama Ala. R. App. P. 53(c), (d): All Supreme Court and Court of Civil Appeals opinions published, but no-opinion cases appear only in "Table of Decisions Without Published Opinions." If concurring or dissenting opinion is issued in no-opinion case, it shall be published with a statement addressing the special circumstances. Ala. R. App. P. 53, cmt.: Rule "intended to allow the courts to omit opinions in most cases" that don't involve situations enumerated in the rule. Ala. R. App. P. 54(c), (d): Similar provisions for the Court of Criminal Appeals. Alaska Alaska R. App. P. 214(a), (b): A civil court can determine whether to issue a written opinion, but a criminal court must issue a summary order that should contain a statement of the issues considered. Alaska R. App. P. 214(a): All parties may request "in writing" that case be decided by summary disposition without order; request "shall be signed by all parties and may be filed any time after the filing of the notice of appeal." Arizona Ariz. R. Civ. App. P. 28(a), (g): An opinion is written, published, and intended to be precedential. A memorandum decision is written but not intended for publication. Orders may be partially published. Courts will treat motion for publication of memorandum as motion for reconsideration. Motion and any response must comply with the requirements of Ariz. R. Civ. App. P. 22, which describes contents and timing of motions. Arkansas Ark. S. Ct. R. 5-2(a): Every Supreme Court and Court of Appeals opinion issued after February 14, 2009, to be posted on Arkansas Judiciary website and made searchable. California Cal. Ct. R. 8.1120(a): Anyone may ask court to publish unpublished opinion, giving reasons in writing why it should be published. Cal Ct. R. 8.1105(a)--(c): Supreme Court opinions are all published. Appellate Court opinions published if they establish new law; apply law to significantly different facts from other published opinions; modify or explain law; give new interpretation to law; highlight conflict in the law; involve public interest; make a significant contribution to legal literature; invoke overlooked rule of law; or make significant contribution to law development. Cal. Ct. R. 8.1110: Court may decide that publication of only part of an opinion is appropriate. Colorado Colo. App. R. 35(f): Court of Appeals decides which opinions to publish. Opinions designated for official publication only if opinion lays down new rule, alters or modifies existing rule, or applies established rule to novel facts; involves legal issue of continuing public interest; either majority, dissent, or special concurrence directs attention to shortcomings of common law or inadequacies in statutes; opinion resolves conflict of authority. If certiorari granted, unpublished Court of Appeals opinion will not be published unless Supreme Court orders it. Connecticut Conn. R. App. P. 71-4 (d) The opinions in "the bound volumes of the Connecticut Reports and the Connecticut Appellate Reports are the official opinions." Delaware Del. S. Ct. R. 17(a): "All decisions finally determining or terminating a case shall be made by written opinion, or by written order, as determined by the Court." Del. S. Ct. 1.0.P. XIV: Cases may be determined by judgment order as well as by opinion. District of D.C. Ct. App. R. 36(c): Opinions may be either Columbia published or unpublished, and parties may move to have unpublished opinion published. Court may also publish any unpublished opinion. D.C. Ct. App. 1.0.P. IX "All opinions ... will be published. Memorandum Opinions and Judgments ... will not be published." Florida Courts can issue per curiam decisions without opinion, which are not precedential, and citation to them can be prohibited by appellate courts unless the decision is cited only to "suggest to the court how it previously viewed a proposition." Dept, of Leg. Affairs v. Dist. Ct. of App., 434 So. 2d 310, 311, 313 (Fla. 1983). Fla. R. App. P. 9.330: If a decision is entered without opinion, but a written opinion would provide a legitimate basis for supreme court review, a party may request issuance of a written opinion. Georgia Ga. R. App. Ct. 34: "Opinions are reported except as otherwise designated by the Court. The official reports shall list the cases in which opinions were written but not officially reported and shall indicate the authors and participants in the opinions." Guam Guam R. App. P. 27(b)(1): Opinions by the Supreme Court shall be published. Memorandum opinions shall not be published. Hawaii Haw. R. App. P. 35(b): "Memorandum opinions shall not be published. Dispositional orders shall not be published except upon the order of the appellate court ... an opinion or order is published when the appellate court designates it for publication in West's...