Federal and State Court Rules Governing Publication and Citation of Opinions: An Update

INTRODUCTION The debate over citation of unpublished opinions continues. Some jurisdictions have become more permissive, some have clearly rejected citation of unpublished decisions, and some are still considering the issue.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North Carolina, Ohio, Texas, Utah, and West Virginia have all modified their rules in some way to allow citation of unpublished opinions either as persuasive authority or in some cases as precedent. The Wisconsin Supreme Court has rejected a proposed rule change to allow citation of unpublished opinions for persuasive purposes. (1) Hawaii has tabled a proposed rule change to allow citation of unpublished decisions for persuasive value pending a decision on proposed Federal Rule of Appellate Procedure 32.1, (2) which itself has been sent back to the Advisory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 (3) The Illinois Supreme Court Special Committee to Study Rule 23 has proposed that unpublished orders issued after the proposed amendment's effective date be citable as persuasive authority.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 (6) As before, they focus on the basic guidelines for publication of opinions and rules regarding citation of unpublished opinions in the federal courts of appeal and the appellate courts of the fifty states and the District of Columbia.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. …