This is unprecedented: examining the impact of vacated state appellate court opinions.

• Author: Moberly, Michael D.

If the Court considers the language or legal analysis ... in [a] vacated ... opinion, regardless of how well reasoned that decision or language may be, any decision rendered is subject to challenge or criticism on the grounds that it was based in part on language, reasoning or analysis from an opinion that had been vacated. (1)

1. INTRODUCTION

   Like their counterparts in Georgia, (2) Idaho; Illinois, (4) Indiana, (5) Louisiana, (6) Michigan, (7) Nebraska, (8) Ohio, Oregon, (10) and Wisconsin, (11) the Arizona state courts hold that vacated judicial opinions have no precedential value. (12) Although this characterization seems overly broad, (13) and is arguably even somewhat misleading, (14) the same view has been expressed by a number of federal appellate courts. (15)

   Nevertheless, the courts are not uniform in their treatment of vacated opinions. (16) For example, several courts have indicated that vacated opinions retain their precedential value in some circumstances. (17) Even in jurisdictions in which vacated opinions cannot be cited as precedent (18) (at least in the stronger, binding sense), (19) litigants presumably could cite them for some other purpose, (20) including their ability to persuade the court in a subsequent case. (21)

   Under a procedural rule adopted by the Ohio Supreme Court, for example, vacated and therefore non-precedential Ohio appellate court opinions issued after May 1, 2002, can "be cited as legal authority and weighted as deemed appropriate" in subsequent Ohio state court cases. (22) However, there is no comparable rule addressing whether--or when--vacated appellate opinions can be cited in Arizona state court litigation, (23) and the analogous authority in other jurisdictions is conflicting. (24)

   This article attempts to shed light on this important and unsettled issue. (25) Although the article focuses on the Arizona courts' treatment of vacated opinions, (26) the analysis should be useful in other states as well. (27) This is particularly true in states that, like Arizona, (28) have adopted appellate procedural rules analogous to the Federal Rules of Appellate Procedure, (29) one purpose of which is to promote uniformity of appellate procedure throughout the country. (30)

   Part II of the article contains a discussion of the courts' general view of the precedential value of vacated opinions. In Part III, the author discusses the persuasive value of opinions vacated for reasons that do not cast doubt on the propositions for which they are cited. Part IV considers the propriety of citing vacated opinions for propositions that were repudiated by the vacating court. In Part V, the author discusses the "depublication" of appellate court opinions, (31) and the impact of this controversial practice on the citation of vacated opinions. The author ultimately concludes that a vacated Arizona appellate court opinion--indeed, a vacated opinion issued by any court (32)--should be citable for its persuasive value, (33) as long as the citing party advises the court of the fact that the opinion was vacated.

2. VACATED OPINIONS ARE NOT "PRECEDENT."

   As Arizona's appellate court of last resort, (34) the Arizona Supreme Court can affirm, reverse, or modify a decision of the state's intermediate appellate court, (35) the Arizona Court of Appeals. (36) Like other state courts of last resort, (37) the Arizona Supreme Court also has the authority to vacate opinions issued by the state's intermediate appellate court, (38) which it often does when it disagrees with the lower court's reasoning. (39) When the supreme court exercises its authority to vacate an Arizona Court of Appeals opinion, (40) the vacated opinion is no longer considered precedential, (41) and courts in subsequent cases are unlikely to be persuaded by (or perhaps even willing to consider) (42) the court of appeals' repudiated reasoning. (43) In Stroud v. Dorr-Oliver, Inc., (44) for example, the appellant cited an Arizona Court of Appeals opinion, Santanello v. Cooper, (45) that the Arizona Supreme Court had later vacated. (46) In refusing to consider the court of appeals' analysis in Santanello, (47) the supreme court in Stroud stated that "[o]nce an opinion of the Court of Appeals has been vacated by this court, it is of no force and effect and is not authority." (48) The Arizona Court of Appeals has characterized vacated opinions in essentially the same manner, (49) as have courts in a number of other jurisdictions. (50)

   In Bolm v. Custodian of Records of Tucson Police Department, (51) the Arizona Court of Appeals interpreted Stroud to prohibit litigants from even citing vacated Arizona appellate court opinions in subsequent cases. (52) In McMurray v. Dream Catcher USA, Inc., (53) the court of appeals extended this reasoning one step further, characterizing its own prior reliance on its vacated opinion in Mark Lighting Fixture Co. v. General Electric Supply Co. (54) in Harris v. Reserve Life Insurance Co. (55) as inappropriate because vacated opinions are not precedential. (56) Again, the Arizona courts are not alone in holding these views. (57)

3. THE IMPACT OF OPINIONS VACATED ON "OTHER GROUNDS"

   Like its counterparts in other states, (58) the Arizona Supreme Court occasionally vacates an opinion for a reason that does not necessarily reflect disagreement with the lower court's substantive analysis, (59) such as when the appellant lacked standing (60) or the ease was moot--or not yet ripe (61)--when the opinion was issued. (62) The supreme court also may vacate only part of an opinion with which it disagrees, (63) in which case it may or may not express a agreement with the reasoning in the remainder of the opinion. (64) Neither the supreme court in Stroud (65) nor the court of appeals in Bolm (66) or McMurray (67) discussed the fact that at least some of the legal analysis in an opinion vacated under these circumstances may remain valid. (68)

   Summarizing Arizona appellate practice, two respected Arizona appellate attorneys have asserted that a vacated opinion can be cited as authority in subsequent cases if it was "vacated on other grounds" (69)--that is, on grounds that do not call into question the proposition for which the opinion is being cited. (70) While this is the view prevailing in several other states (71) and some federal courts, (72) the Arizona Supreme Court decision the authors cited for the proposition, O Hara v. Superior Court, (73) does not directly support it, (74) and there is colorable support for a contrary conclusion. (75)

   The Arizona Court of Appeals implicitly addressed this issue in a series of cases decided before the Arizona Supreme Court characterized vacated opinions as being of no force and effect in Stroud. (76) In the first such case, St. Gregory's Church v. O'Connor, (77) the court of appeals quoted with approval from its prior opinion in Myers v. Rollette, (78) stating: "We recognize that ... our decision [in Myers] was vacated.... We do not find in the Supreme Court opinion that our above-quoted statement was discredited by the Supreme Court and we feel free to again repeat the same statement." (79) Essentially the same view was expressed in two other pre-Stroud court of appeals decisions, Verdex Steel & Construction Co. v. Board of Supervisors (80) and Chavez v. Industrial Commission. (81) Courts in other states have reached similar results. (82)

   The Arizona Court of Appeals took a less deferential view of a prior vacated opinion in Balestrieri v. Hartford Accident and Indemnity Co., (83) another case decided shortly before Stroud. (84) The plaintiff in Balestrieri relied on the court of appeals' .prior opinion in Mazon v. Farmers Insurance Exchange (85) in arguing that an insurer violated its statutory obligation to provide uninsured motorist coverage (86) when it limited the coverage available under its policy to situations in which there is physical contact between the insured (or the insured's vehicle) and an uninsured motor vehicle. (87)

   The Balestrieri court acknowledged the potential relevance of its analysis in Mazon, (88) but noted that the Arizona Supreme Court vacated the Mazon opinion. (89) Although the supreme court declined to address the portion of Mazon on which the plaintiff in Balestrieri was relying, (90) leaving open the possibility that the court of appeals' interpretation of the uninsured motorist statute remained valid, (91) the Balestrieri court held that the issue of whether an insurer can limit its uninsured motorist coverage to physical contact situations was a matter of first impression in Arizona. (92)

   The analysis in Balestrieri is consistent with the conclusions reached by several other courts (93) (including, in one instance, the federal district court in Arizona (94)), and suggests that in Arizona state court litigation, at least, (95) an opinion vacated "on other grounds" is not precedential in the stronger, binding sense. (96) However, neither the analysis in Balestrieri nor the Arizona Supreme Court's subsequent characterization of vacated opinions as being of no force and effect in Stroud (97) has prevented litigants from citing vacated Arizona appellate court opinions in support of their legal arguments, (98) or Arizona courts from relying on those opinions when deciding cases. (99) Indeed, the reasoning of a vacated opinion (or for that matter any other non-precedential opinion) (100) may be particularly useful to a court considering an issue on which there is no prior binding precedent (101)--that is, an issue of first impression.

   This conclusion is supported by cases from other jurisdictions, (103) and is illustrated by a series of Arizona cases decided subsequent to Stroud, (104) beginning with the Arizona Court of Appeals' decision in Arizona Corporation Commission v. Citizens Utilities Co. (105) The Citizens Utilities court addressed the impact of the prior vacated opinion in Sun City Water Co. v. Arizona Corporation Commission, (106) where...