Imagine counsel representing litigants before a court. An attorney for one party takes a position on the issue. The court responds that, in a previously filed pleading, counsel had taken the opposite position on behalf of his or her client. The attorney responds, “No, Your Honor, that was an ‘unpublished’ filing. Not only am I not bound by it, in this jurisdiction, you are not even permitted to bring that ‘unpublished’ filing to my attention.”
The court would likely hold the attorney in contempt or sanction him or her for frivolous conduct. Yet, courts do this to litigants and counsel almost all the time by filing an overwhelming majority of their opinions—including lengthy, important decisions—as unpublished decisions. These are not binding precedent and, in many jurisdictions, litigants and counsel are prohibited from even revealing the existence of these prior decisions to the court.
In a recent New York Times article discussing unpublished decisions, it was noted that 88% of federal appeals court decisions are unpublished. The article focused on a 40-page decision from the Fourth Circuit Court of Appeals concerning the important issue of unlawful increases of a prison sentence out of vindictiveness, which the Fourth Circuit issued as “unpublished.” The U.S. Supreme Court denied review of the case, but Justice Clarence Thomas noted in his dissent that the decision not to publish the opinion was “disturbing” and violated the Fourth Circuit’s own standards for publication. While multiple Supreme Court justices have expressed concern over the prevalence of unpublished decisions and their potential for abuse by courts desiring to decide cases in an improper manner, the Supreme Court has repeatedly declined to address the propriety of designating decisions as “unpublished.”
Meanwhile, several courts have concluded that purported blanket prohibitions on citation to unpublished decisions are illegal and unconstitutional. Anastasoff v. United States, 223 F.3d 898, 899-900 (8th Cir. 2000) (holding that rule stating that unpublished decisions are not precedential and may not be cited is unconstitutional; the decisions are precedential); Putnam v. Town of Saugus, 365 F. Supp. 2d 151, 181, n. 17 (D. Mass. 2005) (agreeing with Anastasoff and holding that, while not precedential, unpublished First Circuit decisions could be cited and would be treated “with great care and respect” as persuasive authority); Coggon v. Barnhart, 354 F. Supp. 2d 40, 51, n. 4 (D. Mass. 2005) (same); Cmty. Visual Communs., Inc. v. City of San Antonio, 148 F. Supp. 2d 764, 773-775 (W.D. Tex. 2000) (agreeing with Anastasoff in part and lamenting that the inability to rely upon unpublished decisions makes the court’s job more difficult). Indeed, Federal Rule of Appellate Procedure 32.1 was enacted to permit lawyers to cite federal unpublished decisions in federal courts if the decisions were issued after January 1, 2007. Judges, defending the practice, however, contend it is the only reasonable response to a crushing workload which precludes proper review of every decision to ensure it will not be misconstrued or misused and it is “safe as precedent.” See, e.g., Schmeir v. Supreme Court, 78 Cal. App. 4th 703 (Cal. Ct. App. 2000).
As attorneys, we have all been faced with a situation where the most applicable or best case law is unfortunately buried in an “unpublished” decision. On some occasions, the only law available on the issue or the only factually similar case is an unpublished decision. When these circumstances arise, there are a handful of strategies to deal with them:
1. Check the Rule in Your Jurisdiction:
First, look at the rule for your jurisdiction. As stated above, some jurisdictions do not entirely prohibit citation to unpublished decisions and allow them to be cited as at least persuasive authority. There may be some additional requirement, such as providing a copy of the decision, but the unpublished decision may be cited.
2. Try a Request or Motion for Judicial Notice:
If your jurisdiction prohibits citation to unpublished decisions unless they are relevant for res judicata or collateral estoppel, then one approach is to request judicial notice of the unpublished decision as a court record, and then cite to the opinion as an exhibit to your judicial notice request. This permits the attorney to comply with the applicable rule by not citing the unpublished decisions directly while still bringing them to the court’s attention. Judicial notice of court records is routinely accepted. Rosenberg v. Renal Advantage, Inc., 2014 U.S. Dist. LEXIS 57538 (S.D. Cal. Apr. 24, 2014); see also Baily v. Comm’r of Soc. Sec., 2014 U.S. Dist. LEXIS 152079 (S.D. Ohio 2014) (Courts take judicial notice of their own records). In many jurisdictions, judicial notice is mandatory, when requested, and the party seeking it supplies the court with the necessary information. An additional benefit is that, even if the request is denied, the court is made aware of the unpublished decisions which are relevant and may feel compelled to either decide your case in a similar fashion or at least explain why it did not do so in order to avoid criticism or the appearance of impropriety. The potential pitfalls of this strategy are that it may anger the court or be construed as an attempt to avoid compliance with court rules. However, it is supported by law and, in circumstances where your best, or only, applicable cases are unpublished, it may be your only real alternative.
3. Make an Argument for a Change in the Law:
Another alternative if your case is in a “no cite” jurisdiction is to make an argument for a change in the law and a determination that blanket prohibitions on citation to unpublished decisions are improper. There is ample authority, some of which is cited above, to support this contention, which should assuage any concerns about the argument being deemed frivolous or in bad faith. You may, however, want to research how many times such an argument has been made and whether it has been frequently rejected, as a court could potentially perceive the argument as frivolous because it has previously been rejected by your particular court or higher appellate courts in that jurisdiction.
Hopefully, these will help if you need to cite to unpublished decisions. Should you require assistance with the editing stage, proofreading or writing of your brief, CP Legal Research Group is here to help.
(This article was originally published on April 15, 2015 in The Recorder, California’s leading legal news and analysis publication, under the following title “When the Best Case Goes Unpublished.”)