6.4 DEALING WITH NON PRECEDENTIAL, OR “UNPUBLISHED,” OPINIONS
In recent years, the “publication” and use of unpublished opinions — now more commonly referred to as “nonprecedential opinions” — has become controversial, with some courts forbidding their citation, others allowing them with some restrictions, and one court holding that rules limiting use of unpublished decisions are unconstitutional.11Rule 32.1 of the Federal Rules of Appellate Procedure mandates that, as to opinions issued after January 1, 2007, “[a] court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been...
designated as ‘unpublished,’ ‘not for publication,’ ‘nonprecedential,’ ‘not precedent,’ or the like.” Because the rules about citation of nonprecedential opinions vary from jurisdiction to jurisdiction,12 the most important thing to do is to consult both the rules of the jurisdiction and the local rules of the court when deciding whether to cite to them.All United States Supreme Court opinions are published, as are virtually all opinions of state supreme courts. State and federal trial courts and intermediate appellate courts, however, currently designate a significant percentage of their opinions as nonprecedential or unpublished. Professor Amy Sloan reports that, in 2008, “84% of opinions issued by the federal courts of appeals [were] nonprecedential.”13Of course, because of the availability of opinions on the Internet and on research services such as Bloomberg, Lexis, and Westlaw, many so-called unpublished decisions are not unpublished in the real sense. Instead, they are decisions that the court has decided to designate as nonprecedential, perhaps because the judges believe that they address routine issues that will not add significantly to the body of law.14
The local rules of the various federal appellate courts and of the various state courts treat nonprecedential decisions in a variety of ways.
Some courts have promulgated rules that seem to favor the issuance of precedential decisions, while others disfavor their issuance, and still others are silent.15 Illinois Supreme Court Rule 23, for example, designates categories of appellate court decisions as precedential or nonprecedential, and section (a) of that rule explains which decisions are appropriate for “full opinions”:The decision of the Appellate Court may be expressed in one of the following forms: a full opinion, a concise written order, or a summary order conforming to the provisions of this rule. All dispositive opinions and orders shall contain the names of the judges who rendered the opinion or order.
(a) Opinions. A case may be disposed of by an opinion only when a majority of the panel deciding the case determines that at least one of the following criteria is satisfied: (1) the decision establishes a new rule of law or modifies, explains or criticizes an existing rule of law; or (2) the decision resolves, creates, or avoids an apparent conflict of authority within the Appellate Court.
Although this rule does not distinguish between “published” and “non-published” decisions, the court’s rule designates both a “concise written order” and a “summary order” as nonprecedential. Furthermore, in contrast to the federal rule, this state court rule (at 23(e)) forbids citation of nonprecedential decisions except in limited circumstances:
(e) Effect of Orders.
(1) [A concise written order or a summary order] is not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case. When cited for these purposes, a copy of the order shall be furnished to all other counsel and the court.
Because a search on the Internet or on Westlaw, Bloomberg, or Lexis may turn up nonprecedential opinions, you must know what the rules are in the court to which you are writing. If you don’t know the rules, find out.
Check the library or the court’s Web site, or call the clerk of the court. If the court does allow citation to nonprecedential opinions, and you cite any in your brief, be sure to attach copies of them as needed to the briefs that you serve on the court and on opposing counsel. Federal Rule of Appellate Procedure 32.1, for example, mandates that a party who cites any federal “written disposition that is not available in a publicly accessible electronic database” must file and serve a copy of the document with the brief or other document submitted to the court. The comments to the rule indicate that “commercial databases” are considered to be “publicly accessible,” so any decision available on Lexis, Westlaw, or Bloomberg presumably would not need to be filed.Nonprecedential opinions require different citation forms. The ALWD Guide to Legal Citation, Rule 12.14(b), for example, describes how to cite nonprecedential opinions that are available only on commercial databases and will never be published in a print reporter. The writer should provide the case name; the docket number (preceded by “No.”); its database identifier as shown in the caption; and a court/date parenthetical, with the exact date of decision.
FORMAT OF CITATION TO NONPRECEDENTIAL DECISION AVAILABLE ONLY ON DATABASES [Case Name], No. [Docket Number], [Database Identifier] [pinpoint] ([Court/Exact Date of Decision]) EXAMPLES OF CITATIONS TO NONPRECEDENTIAL DECISION AVAILABLE ONLY ON DATABASES Radar Rim, Inc. v. CMB Mortg. Servs., Inc., No. 04 C 1945, 2004 U.S. Dist. Lexis 21431, at *1 (N.D. Ill. Oct. 21, 2004).16
Particularly if the case is a recent decision, you may decide to provide additional parenthetical material to distinguish a decision that is unpublished because it is so recent from a decision that is unpublished because the court designated it as nonprecedential:
McGuffin v. Coleman, No. LCW25890856 (Fla. 15th Cir. Jun. 13, 2018) (court-designated nonprecedential decision) (copy attached). In addition or in the alternative, you may want to state explicitly that you are citing to a nonprecedential decision in the text of your argument: The Ninth District Court of Appeals, in a nonprecedential decision, endorsed just this interpretation in 1992. Zahm v. McGuffin, No. AB9123561A4 (Ohio App. 9th Dist. Jan. 24, 1992) (copy attached).
Regardless of formal citation rules, some courts may designate a nonprecedential opinion by putting the word “unpublished” in a parenthetical at the end of the citation.17Try to find out about local rules and local customs when deciding whether and how to cite nonprecedential opinions. When citing them, err on the side of giving too much information to avoid violating court rules.