Federal and state court rules governing publication and citation of opinions: an updated.

• Date: 22 September 2004
• Author: Serfass, Melissa M.,Cranford, Jessie Wallace
• Published date: 22 September 2004
• Author: Serfass, Melissa M.

INTRODUCTION

The debate over citation of unpublished opinions continues. Some jurisdictions have become more permissive, some have clearly rejected citation of unpublished decisions, and some are still considering the issue. The First Circuit, the District of Columbia Circuit, Alaska, Iowa, Kansas, North Carolina, Ohio, Texas, Utah, and West Virginia have all modified their rules in some way to allow citation of unpublished opinions either as persuasive authority or in some cases as precedent. The Wisconsin Supreme Court has rejected a proposed rule change to allow citation of unpublished opinions for persuasive purposes. (1) Hawaii has tabled a proposed rule change to allow citation of unpublished decisions for persuasive value pending a decision on proposed Federal Rule of Appellate Procedure 32.1, (2) which itself has been sent back to the Advisory Committee on Appellate Rules for further study and consideration. (3) The Illinois Supreme Court Special Committee to Study Rule 23 has proposed that unpublished orders issued after the proposed amendment's effective date be citable as persuasive authority. (4) The Illinois Supreme Court Rules Committee has made a recommendation concerning this proposal to the Supreme Court, and the court is expected to take action on the proposal in 2005. (5)

In light of this continued ferment, these charts update the information originally published here in Spring 2001. (6) As before, they focus on the basic guidelines for publication of opinions and rules regarding citation of unpublished opinions in the federal courts of appeal and the appellate courts of the fifty states and the District of Columbia.

Once again, we seek to convey only the essence of each rule, thinking that a quick reference will be useful to the bench and bar. We do not provide extensive analysis or delve into actual practice. (7) In most instances, rules or standard practices for the court of last resort and the intermediate appellate court (8) are provided. If a court rule exists, that rule is cited. In the absence of a court rule, applicable internal operating procedures, statutes, or cases are cited. When no criteria for full published opinions are available, standards for disposition by summary order or memorandum opinions are cited. In listing publication criteria, the term "affects" encompasses terms such as "alter," "modify," "clarify," or "explain." When a phrase such as "criteria include" introduces a list, it may be illustrative, rather than all-inclusive. Because American courts generally allow citation of unpublished opinions for res judicata, collateral estoppel, law of the case, or other related-case purposes, that language is usually omitted from the citation rule.

TABLE 1: RULES IN FEDERAL COURTS Circuit Publication Standards Citation Rule First 1st Cir. R. 36(b) 1st Cir. R. 32.3(a)(1)-(2) The general policy is that The court disfavors opinions be published and citation of unpublished available for citation. opinions, but an An exception may be made unpublished opinion of the if an opinion would not court may be cited if (1) articulate a new rule of the party believes the law; modify an established opinion persuasively rule; apply an established addresses a material issue rule to novel facts; or in the appeal and (2) no "serve otherwise as a published opinion from the significant guide to court adequately addresses future litigants." the issue. Unpublished opinions are considered only for their persuasive value. 1st Cir. R. 32.3(b) Unpublished or non-precedential opinions of other courts may be cited if (1) the party believes the opinion persuasively addresses a material issue in the appeal and (2) no published opinion from this court adequately addresses the issue, unless the rules of the issuing court prohibit such citation. Second 2d Cir. R. 0.23 2d Cir. R. 0.23 "[I]n those cases in which The court may append a decision is unanimous brief written statement to and each judge of the dispositions by summary panel believes that no order. These statements jurisprudential purpose shall not be cited or would be served by a otherwise used in unrelated written opinion, cases before this or any disposition will be other court. made in open court or by summary order." Third 3d Cir. I.O.P. 5.2 3d Cir. I.O.P. 5.7 "An opinion, whether "The court by tradition signed or per curiam, is does not cite to its not designated as precedential precedential opinions as and printed as a slip authority. Such opinions opinion when it has are not regarded as precedential or precedents that bind the institutional value." court because they do not circulate to the full 3d Cir. I.O.P. 5.3 court before filing." Opinions that appear to have value only to the trial court or the parties are designated as not precedential and are not printed as slip opinions. Fourth 4th Cir. R. 36(a) 4th Cir. R. 36(c) An opinion will be "Citation of this Court's published if it establishes unpublished dispositions or affects a rule of law ... in this Court and within the Circuit; in the district courts involves a legal issue of within this Circuit is continuing public interest; disfavored." If counsel criticizes existing law; believes that an contains an original unpublished disposition of historical review of a any court has precedential legal rule or resolves a value and that there is no conflict between panels of published opinion that the Court; or creates a would serve as well, such conflict with a decision disposition may be cited. in another circuit. 4th Cir. R. 36(b) Counsel may move for publication of an unpublished opinion; if the motion is granted, the opinion will be published without any change in the result. Fifth 5th Cir. R. 47.5.1 5th Cir. R. 47.5.3 "[O]pinions that may in any Unpublished opinions issued way interest persons other before January 1, 1996, than the parties to a case are precedent. Because should be published." opinions believed to have Criteria include precedential value are establishing a new rule of published, unpublished law; affecting an existing opinions should not rule; applying an normally be cited. established rule to significantly different 5th Cir. R. 47.5.4 facts from those in Unpublished opinions issued published opinions; on or after January 1, creating or resolving a 1996, are not precedent. conflict within the circuit Unpublished opinions may or between circuits; or be persuasive and may be discussing a factual or cited. legal issue of significant public interest. Sixth 6th Cir. R. 206(a) 6th Cir. R. 28(g) Criteria considered by "Citation of unpublished panels in determining decisions in briefs and publication include whether oral arguments in this a new rule of law is Court and in the district established; an existing courts within this Circuit rule is affected or applied is disfavored." If a to a novel fact situation; party believes that an a conflict is created or unpublished disposition has resolved within the circuit precedential value and that or between circuits; a no published opinion would legal or factual issue of serve as well, it may be continuing public interest cited. is discussed; or a published lower court decision is addressed. Seventh 7th Cir. R. 53(b) 7th Cir. R. 53(b)(2)(iv) The court may dispose of an Unpublished orders shall appeal by unpublished order not be cited or used as or published opinion. precedent except to support a claim of res judicata, 7th Cir. R. 53(c)(1) collateral estoppel, or Criteria for publication law of the case. include establishing a new rule of law or affecting 7th Cir. R. 53(e) an existing rule; involving "Except to the purposes an issue of continuing set forth in Circuit public interest; Rule 53(b)(2)(iv), no criticizing or questioning unpublished opinion or existing law; or order of any court may be constituting a significant cited in the Seventh and non-duplicative Circuit if citation is contribution to legal prohibited in the rendering literature. court." Eight 8th Cir. R. App. I(4) 8th Cir. R. 28A(i) An opinion should be Unpublished opinions "are published when it not precedent and parties establishes a new rule of generally should not cite law or affects an existing them.... Parties may ... rule; newly interprets or cite an unpublished opinion conflicts with a decision of this court if the of a federal or state opinion has persuasive appellate court; applies value on a material issue an established rule of law and no published opinion to facts significantly of this or another court differing from those in would serve as well." published opinions; involves a legal or factual issue of continuing public or legal interest; rejects the rationale of a previously published opinion in the same case; or is a significant contribution to legal literature. Ninth 9th Cir. R. 36-1 9th Cir. R. 36-3 Written dispositions of the Unpublished dispositions court are designated as and orders are not binding opinions, memoranda, or precedent and may not be orders. All opinions are cited. A provisional published; no memoranda are exception allows citation published; orders are not of unpublished opinions in published except by limited circumstances. (9) direction of the court. 9th Cir. R. 36-2 Criteria for designating dispositions as opinions include establishing or affecting a rule of law; criticizing existing law; or involving a legal or factual issue of unique or substantial public interest. Tenth 10th Cir. R. 36.1, 36.2 10th Cir. R. 36.3 The court writes opinions Unpublished orders and only in cases requiring judgments are not binding application of new points precedents. While citation of law that would make of unpublished decisions is the decision a valuable disfavored, an unpublished precedent. When the opinion decision may be cited if below has been published, it has persuasive value the court ordinarily regarding a material designates its disposition issue not addressed in a for publication. If the published opinion and its disposition is by...