§ 16.6 Form of Decision: Published and Unpublished Decisions

JurisdictionWashington

§16.6 FORM OF DECISION: PUBLISHED AND UNPUBLISHED DECISIONS

All Supreme Court opinions are published. All Court of Appeals opinions are a matter of public record, but only opinions deemed to be of precedential value are published. RCW 2.06.040. The Court of Appeals will place a legend on the opinion, along the following lines: "This opinion will be filed for public record pursuant to RCW 2.06.040, as amended by the laws of 1971, Ch. 41, 1, p. 63."

(1) Unpublished decisions may not be cited as authority

An unpublished opinion may not be cited as precedent, even if a party knows of an apparently controlling unpublished opinion. GR 14.1(a) states that a party "may not cite as an authority an unpublished opinion of the Court of Appeals." A decision is "unpublished" if it does not appear in the Washington Appellate Reports, regardless of its appearance in other reporters or online services. GR 14.1(a). See State v. Fitzpatrick, 5 Wn. App. 661, 491 P.2d 262 (1971), review denied, 80 Wn.2d 1003 (1972). This is because only published decisions are intended to be used as precedent:

[U]npublished opinions of the Court of Appeals will not be considered in the Court of Appeals and should not be considered in the trial courts. They do not become a part of the common law of the State of Washington. If the trial courts were to consider them it would not only be wasteful of their time but would permit any group of lawyers to collect such opinions and create an unfair advantage by citing cases not available to their opponents.

Fitzpatrick, 5 Wn. App. at 668 (citing former RAP 10.4(h)). A ruling granting a motion on the merits has no precedential value.

GR 14.1(b) governs citation to unpublished opinions from other jurisdictions. GR 14.1(b) states:

A party may cite as an authority an opinion designated "unpublished," "not for publication," "non-precedential," "not precedent," or the like that has been issued by any court from a jurisdiction other than Washington state, only if citation to that opinion is permitted under the law of the jurisdiction of the issuing court.

Therefore, whether a foreign unpublished opinion can be cited in a Washington court is contingent on whether the state or the federal circuit from which the case originated permits citation to unpublished opinions. If a party cites to an unpublished case from another jurisdiction, it must also file and serve a copy of the opinion with the brief or other paper in which the opinion is cited. GR 14.1(b).

(2) Criteria for publication

RAP 12.3(d) sets...

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