federal and state court rules governing publication and

The Journal of Appellate Practice and Process The Journal of Appellate Practice and Process

Volume 6 Issue 2 Article 9

2004

Federal and State Court Rules Governing Publication and Citation Federal and State Court Rules Governing Publication and Citation

of Opinions: An Update of Opinions: An Update

Melissa M. Serfass University of Arkansas at Little Rock William H. Bowen School of Law, [email protected]

Jessie Wallace Cranford University of Arkansas at Little Rock William H. Bowen School of Law, [email protected]

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FEDERAL AND STATE COURT RULES GOVERNINGPUBLICATION AND CITATION OF OPINIONS:AN UPDATE

Melissa M. Serfass and Jessie Wallace Cranford*

INTRODUCTION

The debate over citation of unpublished opinions continues.Some jurisdictions have become more permissive, some haveclearly rejected citation of unpublished decisions, and some arestill considering the issue. The First Circuit, the District ofColumbia Circuit, Alaska, Iowa, Kansas, North Carolina, Ohio,Texas, Utah, and West Virginia have all modified their rules insome way to allow citation of unpublished opinions either aspersuasive authority or in some cases as precedent. TheWisconsin Supreme Court has rejected a proposed rule changeto allow citation of unpublished opinions for persuasivepurposes.' Hawaii has tabled a proposed rule change to allowcitation of unpublished decisions for persuasive value pending adecision on proposed Federal Rule of Appellate Procedure 32.1,2

which itself has been sent back to the Advisory Committee onAppellate Rules for further study and consideration. The

* Melissa Serfass is the Electronic Resources/Reference Librarian and Professor of LawLibrarianship at the University of Arkansas at Little Rock William H. Bowen School ofLaw, UALR/Pulaski County Law Library. Jessie Cranford is Circulation Librarian andProfessor of Law Librarianship at the same institution.

1. In re Amendment of Wis. Stat § (Rule) 809.23(3) Regarding Citation toUnpublished Opinions, 261 Wis. 2d xiii (2003) (available at http://www.wicourts.gov/sc/scrules/02-02.pdf).

2. Telephone Interview with Jim Branham, Chief Staff Attorney, Haw. S. Ct. (Jan. 11,2005).

3. U.S. Courts: The Federal Judiciary, Federal Rulemaking, Standing CommitteeAction, June 2004 Meeting, http://www.uscourts.gov/rules/index.html (accessed Jan. 11,2005; copy on file with Journal of Appellate Practice and Process).

THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 6, No. 2 (Fall 2004)

THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

Illinois Supreme Court Special Committee to Study Rule 23 hasproposed that unpublished orders issued after the proposedamendment's effective date be citable as persuasive authority.4The Illinois Supreme Court Rules Committee has made arecommendation 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 the6information originally published here in Spring 2001. As

before, they focus on the basic guidelines for publication ofopinions and rules regarding citation of unpublished opinions inthe federal courts of appeal and the appellate courts of the fiftystates and the District of Columbia.

Once again, we seek to convey only the essence of eachrule, thinking that a quick reference will be useful to the benchand bar. We do not provide extensive analysis or delve intoactual practice. 7 In most instances, rules or standard practices forthe court of last resort and the intermediate appellate court8 areprovided. If a court rule exists, that rule is cited. In the absenceof a court rule, applicable internal operating procedures, statutes,or cases are cited. When no criteria for full published opinionsare available, standards for disposition by summary order ormemorandum 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 ofunpublished opinions for res judicata, collateral estoppel, law ofthe case, or other related-case purposes, that language is usuallyomitted from the citation rule.

4. Stephen R. Barnett, No-Citation Rules Under Siege: A Battlefield Report andAnalysis, 5 J. App. Prac. & Process 473, 480 n. 46 (2003).

5. Any change will be announced on the Illinois Supreme Court web site,http://www.state.il.us/court. E-mail from Keith Beyler, Il1. S. Ct. Rules Comm. Rptr., toMelissa Serfass (Dec. 23, 2004) (copy on file with authors).

6. Melissa M. Serfass & Jessie L. Cranford, Federal and State Court Rules GoverningPublication and Citation of Opinions, 3 J. App. Prac. & Process 251 (2001).

7. For an exceptionally thorough analysis of citation rules and actual practices in thecourts, see Barnett, supra n. 4.

8. Delaware, the District of Columbia, Maine, Montana, Nevada, New Hampshire,Rhode Island, South Dakota, Vermont, West Virginia, and Wyoming do not haveintermediate appellate courts. Directory of State and Federal Courts, Judges, and Clerks,xi-xiv (Catherine A. Kitchell, comp. 2005 ed., BNA 2005).

RULES UPDATE: PUBLICATION AND CITATION

TABLE 1: RULES IN FEDERAL COURTS

Circuit Publication Standards Citation Rule1st Cir. R. 36(b)The general policy is thatopinions be published andavailable for citation. Anexception may be made if anopinion would not articulate anew rule of law; modify anestablished rule; apply anestablished rule to novel facts;or "serve otherwise as asignificant guide to futurelitigants."

1st Cir. R. 32.3(a)(1)-(2)The court disfavors citation ofunpublished opinions, but anunpublished opinion of thecourt may be cited if (1) theparty believes the opinionpersuasively addresses amaterial issue in the appeal and(2) no published opinion fromthe court adequately addressesthe issue. Unpublishedopinions are considered onlyfor their persuasive value.

1st Cir. R. 32.3(b)Unpublished or non-precedential opinions of othercourts may be cited if(1) theparty believes the opinionpersuasively addresses amaterial issue in the appeal and(2) no published opinion fromthis court adequately addressesthe issue, unless the rules ofthe issuing court prohibit suchcitation.

2d Cir. R. 0.23 2d Cir. R. 0.23"[I]n those cases in which The court may append a briefdecision is unanimous and each written statement to

V judge of the panel believes that dispositions by summary order.no jurisprudential purpose These statements shall not bewould be served by a written cited or otherwise used inopinion, disposition will be unrelated cases before this ormade in open court or by any other court.summary order."


Circuit Publication Standards Citation Rule3d Cir. I.O.P. 5.2 3d Cir. I.O.P. 5.7"An opinion, whether signed or "The court by tradition doesper curiam, is designated as not cite to its not precedentialprecedential and printed as a opinions as authority. Suchslip opinion when it has opinions are not regarded asprecedential or institutional precedents that bind the courtvalue." because they do not circulate to

the full court before filing."3d Cir. I.O.P. 5.3Opinions that appear to havevalue only to the trial court orthe parties are designated as notprecedential and are not printedas slip opinions.

4th Cir. R. 36(a)An opinion will be published ifit establishes or affects a rule of

law within the Circuit; involves

a legal issue of continuing

public interest; criticizes

existing law; contains an

original historical review of alegal rule or resolves a conflict

between panels of the Court; orcreates a conflict with a

decision in another circuit.

4th Cir. R. 36(b)Counsel may move forpublication of an unpublished

opinion; if the motion isgranted, the opinion will be

published without any changein the result.

4th Cir. R. 36(c)"Citation of this Court'sunpublished dispositions... inthis Court and in the districtcourts within this Circuit isdisfavored." If counselbelieves that an unpublisheddisposition of any court hasprecedential value and thatthere is no published opinionthat would serve as well, suchdisposition may be cited.

_________ _____________________________ I _____________________________

RULES UPDATE: PUBLICATION AND CITATION 353

Circuit Publication Standards Citation Rule

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 than before January 1, 1996, are

the parties to a case should be precedent. Because opinions

published." Criteria include believed to have precedential

establishing a new rule of law; value are published,

affecting an existing rule; unpublished opinions should

applying an established rule to not normally be cited.

significantly different facts

from those in published 5th Cir. R. 47.5.4

opinions; creating or resolving Unpublished opinions issued

a conflict within the circuit or on or after January 1, 1996, are

between circuits; or discussing not precedent. Unpublished

a factual or legal issue of opinions may be persuasive

significant public interest, and may be cited.

6th Cir. R. 206(a) 6th Cir. R. 28(g)

Criteria considered by panels in "Citation of unpublished

determining publication include decisions in briefs and oral

whether a new rule of law is arguments in this Court and in

established; an existing rule is the district courts within this

affected or applied to a novel Circuit is disfavored." If a

fact situation; a conflict is party believes that ancreated or resolved within the unpublished disposition has

circuit or between circuits; a precedential value and that no

legal or factual issue of published opinion would serve

continuing public interest is as well, it may be cited.

discussed; or a published lowercourt decision is addressed.

354 THE JOURNAL OF APPELLATE PRACTICE AND PROCESS

Circuit Publication Standards Citation Rule7th Cir. R. 53(b) 7th Cir. R. 53(b)(2)(iv)The court may dispose of an Unpublished orders shall notappeal by unpublished order or be cited or used as precedentpublished opinion, except to support a claim of res

judicata, collateral estoppel, or7th Cir. R. 53(c)(1) law of the case.Criteria for publication includeestablishing a new rule of law 7th Cir. R. 53(e)or affecting an existing rule; "Except to the purposes setinvolving an issue of forth in Circuit Rulecontinuing public interest; 53(b)(2)(iv), no unpublishedcriticizing or questioning opinion or order of any courtexisting law; or constituting a may be cited in the Seventhsignificant and non-duplicative Circuit if citation is prohibitedcontribution to legal literature, in the rendering court."8th Cir. R. App. 1(4) 8th Cir. R. 28A(i)An opinion should be published Unpublished opinions "are notwhen it establishes a new rule precedent and parties generallyof law or affects an existing should not cite them. ..rule; newly interprets or Parties may ... cite anconflicts with a decision of a unpublished opinion of thisfederal or state appellate court; court if the opinion hasapplies an established rule of persuasive value on a materiallaw to facts significantly issue and no published opiniondiffering from those in of this or another court wouldpublished opinions; involves a serve as well."legal or factual issue ofcontinuing public or legalinterest; rejects the rationale ofa previously published opinionin the same case; or is asignificant contribution to legalliterature.


Circuit Publication Standards Citation Rule

9th Cir. R. 36-1 9th Cir. R. 36-3Written dispositions of the Unpublished dispositions andcourt are designated as orders are not bindingopinions, memoranda, or precedent and may not beorders. All opinions are cited. A provisional exceptionpublished; no memoranda are allows citation of unpublishedpublished; orders are not opinions in limitedpublished except by direction circumstances.

9

of the court.

9th Cir. R. 36-2Criteria for designatingdispositions as opinions includeestablishing or affecting a ruleof law; criticizing existing law;or involving a legal or factualissue of unique or substantialpublic interest.10th Cir. R. 36.1, 36.2 10th Cir. R. 36.3The court writes opinions only Unpublished orders andin cases requiring application of judgments are not bindingnew points of law that would precedents. While citation ofmake the decision a valuable unpublished decisions isprecedent. When the opinion disfavored, an unpublishedbelow has been published, the decision may be cited if it has

court ordinarily designates its persuasive value regarding adisposition for publication. If material issue not addressed inthe disposition is by order and a published opinion and its usejudgment, the court will publish would assist the court in itsonly the result of the appeal. disposition of the present case.

9. This rule was adopted for a limited period beginning July 1, 2000. It has beenextended for another limited period ending July 1, 2005.


Circuit Publication Standards Citation Rule11th Cir. R. 36-1, 36-2 11th Cir. R. 36-2When the court determines that Unpublished opinions are notan opinion would have no considered binding precedent;precedential value and the however, they may be cited asrecord below supports persuasive authority.affirmance, the judgment ororder may be affirmed or 11th Cir. R. 36-3, I.O.P. 5enforced without opinion. An The court does not favoropinion is unpublished unless a reliance on unpublishedmajority of the panel decides to opinions.publish it.D.C. Cir. R. 36(a) D.C. Cir. R. 28(c)(1)(a)The policy of the court is to Unpublished dispositions ofpublish opinions of general the court entered beforepublic interest. Publication January 1, 2002, are not to becriteria include whether it is a cited as precedent.case of first impression;

2 whether it alters, affects, D.C. Cir. R. 28(c)(1)(b)criticizes, or questions existing Unpublished dispositions of0

, law; or whether it resolves an the court entered on or afterapparent conflict within the January 1, 2002, may be citedcircuit or creates a conflict as precedent.between circuits.

D.C. Cir. R. 36(c)(2)"[A] panel's decision to issuean unpublished dispositionmeans that the panel sees noprecedential value in thatdisposition."


Circuit [ Publication Standards [ Citation Rule

Fed. Cir. R. 47.6(a)Disposition of an appeal maybe announced in an opinion orin a judgment of affirmancewithout opinion. Dispositionsnot to be cited as precedent areissued specifically stating thatfact.

Fed. Cir. I.O.P. 10The court's policy is to limitprecedential opinions. Criteriafor publication include issues offirst impression; cases thatestablish a new rule of law;cases that affect or criticizeexisting law; cases that applyexisting rules to significantlydifferent fact situations; casesthat create or resolve conflictsin the circuit or betweencircuits; or cases treating legalissues of substantial publicinterest, a new constitutional orstatutory issue, or a previouslyoverlooked rule of law.

Fed. Cir. R. 47.6(b)An opinion or order designatedas nonprecedential may not becited.


TABLE 2: RULES IN STATE COURTS

State Publication Standards Citation Rule

Ala. R. App. P. 53(d)"No opinion" affirmances of theSupreme Court and Court ofCivil Appeals are notprecedential and may not becited."

Ala. R. App. P. 54(d)"No opinion" affirmances ormemoranda issued by the Courtof Criminal Appeals are notprecedential and may not becited.

Ala. R. App. P. 53All Supreme Court and Court ofCivil Appeals opinions arepublished in the official reportsof Alabama decisions. Trialcourt judgments or orders maybe affirmed without opinionwhen the court determines thatan opinion would serve nosignificant precedential purposeand one of the following applies:the judgment appealed from isbased on findings of fact that arenot clearly erroneous or thejudgment is sufficientlysupported by the evidence. Suchdispositions are designated as"No Opinion" cases and are notpublished.

Ala. R. App. P. 54All Court of Criminal Appealsopinions are published in theofficial reports of Alabamadecisions. The Court of CriminalAppeals may affirm a judgmentor order of a trial court withoutopinion if a court determines thatan opinion would serve nosignificant precedential purpose.In "no opinion" affirmances, thecourt must issue a memorandumexplaining its rejection of theappellant's contentions.


State Publication Standards Citation RuleAlaska R. App. P. 214(a) Alaska R. App. P. 214(d)The Supreme Court and the "Summary decisions under thisCourt of Appeals "may rule are without precedentialdetermine that an appeal shall be effect and may not be cited in

" disposed of by summary order the courts of this state.' 10

and without formal writtenopinion."Ariz. Sup. Ct. R. 111(a)-(b); Ariz. Sup. Ct. R. 111(c); Ariz.Ariz. R. Civ. App. P. 28(a)-(b) R. Civ. App. P. 28(c)An opinion is a written Memorandum decisions are notdisposition intended for precedent and may not be citedpublication. A memorandum in any court. An exceptiondecision is a written disposition allows citation to inform thenot intended for publication, appellate court of "other

= Publication standards include memorandum decisions so that. establishing, criticizing, or the court can decide whether to., affecting existing law; calling issue a published opinion, grant

attention to rules of law which a motion for reconsideration, orappear to have been generally grant a petition for review."overlooked; involving issues ofunique interest or substantialpublic importance; or if theauthor of a concurrence ordissent requests publication.Ark. Sup. Ct. & Ct. App. R. 5- Ark. Sup. Ct. & Ct. App. R. 5-2(a), (c) 2(d)All signed opinions of the Court of Appeals opinions notSupreme Court are published, designated for publication are

" Court of Appeals opinions may not published in the officialbe in conventional or reporter and "shall not be cited,memorandum form. I Court of quoted or referred to by any

10. But see McCoy v. State, 80 P.3d 757, 764 (Alaska App. 2002) (holding that Rule214(d) "forbids citation of unpublished decisions as precedent [but]... does not forbidjudges and lawyers from relying on unpublished decisions for whatever persuasive powerthose decisions might have").

11. See In re Memorandum Opinions, 700 S.W.2d 63 (Ark. App. 1985) (per curiam)for standards governing issuance of memorandum opinions.


State Publication Standards Citation RuleAppeals opinions resolving court or in any argument, brief,

- novel or unusual issues will be or other materials presented toR published. Unpublished opinions any court."

are marked "Not Designated forPublication."

Cal. R. Ct. 976(a)All opinions of the SupremeCourt are published in theOfficial Reports.

Cal. R. Ct. 976(b)Opinions of the Court ofAppeals or appellatedepartments of the superior courtare not published unless theopinion establishes a new rule oflaw; applies an existing rule tonovel facts; criticizes or affectsan existing rule; resolves orcreates a conflict in the law;involves a legal issue ofcontinuing public interest; ormakes a significant contributionto legal literature.

12

Cal. R. Ct. 977Opinions of a Court of Appealor an appellate department ofthe superior court that are notcertified for publication orordered published may not becited or relied on by a court or aparty in any other action orproceeding.

All Supreme Court opinions are Unpublished orders of thepublished; the Court does Supreme Court may not be

0 dispose of some issues by cited. 14

unpublished order.13

Colo. App. R. 35(f)Colo. App. R. 35(f) "Those opinions selected forA Court of Appeals opinion is official publication shall benot published unless it followed as precedent by the

12. California has a rule on partial publication, Cal. R. Ct. 976.1, and a rule ondepublication, Cal. R. Ct. 979.

13. Telephone Interview with Susan Festag, Colo. Sup. Ct. Chief Deputy Clerk (Jan.14, 2005).

14. Id.


State Publication Standards Citation Ruleestablishes a new rule of law; trial judges of the State ofaffects an existing rule; applies Colorado."an established rule to a novelfact situation; involves a legal Policy of the Colorado Courtissue of continuing public of Appeals Concerninginterest; "directs attention to the Citation of Unpublishedshortcomings of existing Opinionscommon law or inadequacies in Citation of unpublishedstatutes"; or resolves an apparent opinions is forbidden, except inconflict of authority. limited circumstances.15

Unpublished opinions bear thelegend, "Not Selected forPublication."

Conn. Gen. Stat. § 51-212(b) Conn. R. App. P. 67-9"The reporter or the person Unreported decisions from otherappointed to perform his duties jurisdictions may be cited beforeshall make reports of [all] the the court if the person makingcases argued and determined in reference to the decisionthe Supreme Court, [and] provides the court and opposing

" prepare the reports for counsel with copies.• - publication."

€ Conn. Gen. Stat. § 51-215a(b)S The Clerk of the Appellate Court

files copies of memoranda ofdecisions in Appellate Courtcases with the Reporter ofJudicial Decisions. The Reporterprepares all of the decisions forpublication.

15. James S. Casebolt, Policies and Procedures of the Court of Appeals,http://www.courts.state.co.us/coa/forms/proceduresandpolicies.htm (visited Jan. 13, 2005;copy on file with Journal of Appellate Practice and Process).


State I Publication Standards Citation RuleDel. Sup. Ct. R. 17(a)"All decisions finally deter-mining or terminating a caseshall be made by writtenopinion, or by written order, asdetermined by the Court."

Del. Sup. Ct. R. 93(c)Published opinions should:"address issues of firstimpression; establish, alter orexplain (for the first time) a ruleof law; review the law in this orother jurisdictions (for the firsttime or for the first time inrecent years); provide a scholarlycritique of existing law; involveunique, but important, factualsituations or holdings; or involvenewsworthy cases."

Del. Sup. Ct. I.O.P. XI(2)A case may be finallydetermined or terminated bywritten order if the issue onappeal is controlled by settledDelaware law, is factual andthere is sufficient evidence tosupport the jury verdict orfindings of fact below, or therewas no abuse ofjudicialdiscretion.

Del. Sup. Ct. I.O.P. X(8)"Supreme Court Rule 17 hasbeen amended to permit ordersof the Delaware Supreme Courtto be cited as precedent. SeeNew Castle County v. Goodman,461 A.2d 1012, 1013 (Del.1983) (citing rule change). Eventhough both published opinionsand case dispositive judgmentorders have precedential value,the Court avoids citing to itsorders as authority."


State Publication Standards Citation RuleD.C. Ct. App. R. 36(c) D.C. Ct. App. R. 28(g)"An opinion may be either "Any published opinion or order

.. published or unpublished. A of this court may be cited in any2, party or other interested person brief. Unpublished opinions or-2 may request that an unpublished orders of this court shall not beU opinion be published by filing a cited in any brief."0 motion within 30 days after

.2 issuance of the opinion, stating. _ why publication is merited. The

court sua sponte may alsopublish any previously issuedunpublished opinion."All Supreme Court opinions are Dept. of Legal Affairs v. Dist.published. Disposition orders are Ct. App., 434 So. 2d 310 (Fla.published in table form. In the 1983).District Courts of Appeal, full Per curiam affirmances without

•. opinions are generally published; written opinion have nomany cases are disposed of as precedential value and shouldper curiam affirmances without not be cited; however, anwritten opinion. 16 affirmance may be cited to the

issuing court for its persuasivevalue.

Ga. Sup. Ct. R. 59 Affirmations without opinionThe Supreme Court may affirm pursuant to Rule 59 may not bewithout opinion when one or cited. 17

more of the followingcircumstances exists and is Ga. Ct. App. R. 33(a)

" dispositive of the appeal: the A judgment fully concurred in4 judgment is supported by the by all judges in a division or a

evidence; there is no harmful full concurrence by a majorityerror of law requiring reversal; in an appeal decided by a seven-or an opinion would have no or twelve-judge court is aprecedential value because the binding precedent. A judgmentjudgment below contains an made by special concurrence,

16. Telephone Interview with James Logue, Fla. Rptr. of Decisions (Dec. 3, 2004).17. Telephone interview with Ginger Wade, Editor of Supreme Court and Court of

Appeals Advance Sheets, Georgia Supreme Court (Jan. 7, 2005).



adequate explanation of thedecision.

Ga. Ct. App. R. 34"Opinions are reported except asotherwise designated by thecourt."

Ga. Ct. App. R. 36Court of Appeals cases may beaffirmed without opinion whenthe evidence supports thejudgment; there is no reversibleerror of law and an opinionwould have no precedentialvalue; the judgment belowcontains an adequate explanationof the decision; and/or "theissues are controlled adversely tothe appellant for the reasons andauthority given in the appellee'sbrief."

Haw. R. App. P. 35 (a)-(b)Dispositions of the SupremeCourt and Court of Appeals maytake the form of published, percuriam or memorandumopinions or dispositional orders.Memorandum opinions anddispositional orders are notpublished except when orderedby the court.

Haw. Intermediate Ct. App. R.2(a)"A full opinion of theintermediate court of appeals

concurrence in the judgmentonly, or concurrence by lessthan a majority is a physicalprecedent only.

Ga. Ct. App. R. 33(b)An unreported opinionestablishes the law of the case,but is neither a physical norbinding precedent.

Ga. Ct. App. R. 36Rule 36 cases have noprecedential value.

Haw. R. App. P. 35(c); Haw.Intermediate Ct. App. R. 2(b)A memorandum opinion orunpublished dispositional ordermay not be cited.

Q


State Publication Standards Citation Ruleshall be published in a mannerauthorized by the supreme court.

:: " The supreme court, however,

may order that a full opinion be€ changed to a memorandum

opinion."

Idaho Sup. Ct. Internal R.15(f)"If an opinion is not published,it may not be cited as authorityor precedent in any court."

Idaho Ct. of App. Internal R.for Publication of Opinions (4)Opinions that do not satisfy thepublication criteria in section 2of this rule shall be marked"This Is An UnpublishedOpinion and Shall Not Be CitedAs Authority."

Idaho Sup. Ct. Internal R.15(f)"At or after the oral conferencefollowing the presentation oforal argument or the submissionof the case to the Court on thebriefs, the Court, by unanimousconsent of all justices, maydetermine not to publish the finalopinion of the Court."

Idaho Ct. of App. Internal R.for Publication of Opinions (2)An opinion will only bepublished if it establishes a newrule of law or alters or modifiesan existing rule; involves anissue of continuing publicinterest; criticizes or explainsexisting law; applies anestablished rule to a significantlydifferent fact situation; resolvesan apparent conflict; or makes asignificant contribution to legalliterature by an historical reviewor a legislative history.

v



All Supreme Court opinions are Ill. Sup. Ct. R. 23(e)published.18 "An unpublished order is not

precedential and may not beIll. Sup. Ct. R. 23 cited by any party."Decisions of the Appellate Courtmay be in the form of a full

.. opinion, a written order or a= summary order. Only opinionsS will be published. Opinions are

issued only when the decisionestablishes a new rule of law,criticizes or affects an existingrule, or resolves, creates, oravoids an apparent conflictwithin the Appellate Court.

Ind. R. App. P. 65(A) Ind. R. App. P. 65(D)All Supreme Court opinions are "Unless later designated forpublished. Court of Appeals publication, a not-for-opinions are published if the publication memorandumcase establishes, affects or decision shall not be regarded ascriticizes a rule of law or precedent and shall not be citeddiscusses "a legal or factual to any court."

- issue of unique interest orsubstantial public importance."Other Court of Appeals cases aredecided by memorandumdecisions designated as not-for-

I publication.

18. Telephone Interview with Brian Ervin, I11. Sup. Ct. Rptr. of Jud. Decisions (Dec. 3,2004).


State Publication Standards Citation RuleIowa Code § 602.4106All Supreme Court decisions andopinions shall be in writing.Only those decisions deemed ofsufficient general importance bythe court are published.

Iowa Code Ann. § 602.5111Court of Appeals opinions arepublished in accordance withrules prescribed by the SupremeCourt. Section 602.4106 appliesto Court of Appeals decisions.

Iowa Ct. R. 21.29(1)Memorandum opinions may beused by the Court of Appealsand Supreme Court to dispose ofcases when appropriate. A shortmemorandum opinion may beused in any of the followingsituations: application of well-settled rules of law to recurringfact situations; the evidence issufficient to support the holdingbelow; disposition is clearlycontrolled by a prior publishedholding of the deciding court orof a higher court; the recordincludes an opinion of the courtor agency whose decision isbeing reviewed that identifiesand considers all the issuespresented and the appellate courtapproves of the reasons andconclusions in that opinion; or afull opinion would not augmentor clarify existing case law.

Iowa R. App. P. 6.14(5)(b)"An unpublished opinion of theIowa appellate courts or of anyother appellate court may becited in a brief; however,unpublished opinions shall notconstitute controlling legalauthority."

w


State Publication Standards Citation RuleIowa Ct. R. 21.30(2)An opinion of the Court ofAppeals may be published onlywhen at least one of thefollowing criteria is satisfied:

4i. the case resolves an importantlegal issue, concerns a factualsituation of broad public interest,or involves legal issues whichhave not been previouslydecided by the Iowa SupremeCourt.

Kan. Sup. Ct. R. 7.04Opinions of the appellate courtsmay be memorandum or formal

opinions. Memorandum opinionsare normally marked "Not

Designated for Publication."

Opinions are published in theofficial reports only when theymeet certain standards such as

establishing a new rule of law;affecting or criticizing existing

law; involving a legal issue ofcontinuing public interest;applying an established rule of

law to a novel fact situation;resolving an apparent conflict ofauthority; or contributing

significantly to legal literature.Otherwise, memorandum

opinions are issued.

Kan. Stat. Ann. § 60-2106(a)A memorandum opinion may beprepared when a case decides nonew question of law or otherwisehas no precedential value.

Kan. Sup. Ct. R. 7.04Unpublished memorandumopinions are not bindingprecedents, and are not favoredfor citation. But they may becited if they have persuasivevalue with respect to a materialissue not addressed in apublished opinion of a Kansasappellate court and they wouldassist the court in its disposition.



Ky. Rev. Stat. Ann. § 21A.070 Ky. R. Civ. P. 76.28(4)(c)

All Supreme Court opinions are Opinions designated "Not to Be

published. The Supreme Court Published" may not be cited or

determines which opinions of used as authority in any other

the Court of Appeals and lower case in any court of this state.

courts are published.

S Ky. R. Civ. P. 76.28(4)(a)Opinions of the appellate courtswill be published as directed bythe court issuing the opinion.Every opinion shall be marked

either "To Be Published" or"Not To Be Published."

Ky. R. Crim. P. 12.02

Ky. R. Civ. P. 76 also applies incriminal actions.The types of opinions issued by All Louisiana Supreme Court

the Louisiana Supreme Court opinions may be cited.20

include signed opinions, percuriam opinions and summary La. Unif. R. Ct. App. 2-16.3

orders. All opinions are public "Opinions marked 'Not

record and are published. 19 Designated for Publication'shall not be cited, quoted, or

n La. Unif. R. Ct. App. 2-16 referred to by any counsel, or in

.. Appellate Court decisions may any argument, brief, or other

= be full opinions, concise materials presented to any

memorandum opinions, or Court, except in continuing or

summary dispositions. related litigation."

La. Unif. R. Ct. App. 2-16.1A formal opinion may be issuedwhen at least one of thefollowing criteria is satisfied:

19. E-mail from John Tarlton Olivier, La. Sup.(Dec. 9, 2004) (copy on file with authors).

20. Id.

Ct. Clerk of Court, to Melissa Serfass


State Publication Standards Citation RuleThe decision involvedestablishes a new rule of law oraffects an existing rule; involvesa legal issue of continuing publicinterest; criticizes or explainsexisting law; applies anestablished rule of law to a novelfact situation; resolves anapparent conflict of authority; orconstitutes a significant and non-duplicative contribution to legalliterature such as an historicalreview of law, a review oflegislative history, or a review ofconflicting decisions among thecourts or other jurisdictions.

4 When the panel agrees that the• above criteria are not met, a caseiS may be disposed of with aQ

concise memorandum opinion.

La. Unif. R. Ct. App. 2-16.2When a panel unanimouslydetermines that nojurisprudential purpose is servedby a written opinion and certaincircumstances exist-forexample, that the disposition isclearly controlled by case law,involves an application of well-settled rules to recurring factsituations, there is no abuse ofdiscretion, or there was no erroron the record-the decision ofthe court may be by summarydisposition.



4 Me. Rev. Stat. Ann. § 702 Admin. Orders Sup. Jud.The Reporter of Decisions Ct.-New Citation Formreports cases at his discretion, (Aug. 20, 1996)under the supervision of the "Memorandum Decisions and

I; Chief Justice of the Supreme Summary Orders shall not be

Judicial Court. published in the AtlanticReporter and shall not be citedas precedent for a matteraddressed therein."

Md. Cts. & Jud. Proceedings Md. R. 1-104

Code Ann. § 13-203 "An unreported opinion of theThe State Reporter prepares Court of Appeals or Court ofreports of cases designated for Special Appeals is neither

V publication by the Court of precedent within the rule ofAppeals and the Court of Special stare decisis nor persuasiveAppeals. authority," but may be cited in

either court for any otherMd. R. 8-605.1(a) purpose.The Court of Special Appealsshall designate for reporting onlythose opinions that are ofsubstantial interest as precedents.All Supreme Judicial Court Unpublished Appeals Court

opinions are published 2 1 decisions pursuant to Rule 1:28of the Appeals Court are not to

Mass. Ann. Laws ch. 221 § 64 be cited as precedent in briefs toThe reporter of the Supreme the appellate courts.2 2

Judicial Court has discretion toW report the cases more or less at

large according to their relativeS importance.

Mass. Ann. Laws ch. 211A § 9All decisions of the AppealsCourt shall be in writing, except

21. E-mail from Clifford Allen, Mass. Sup. Jud. Ct. Rptr. of Decisions, to MelissaSerfass (Dec. 16, 2004) (copy on file with authors).

22. Id.; see also Homer v. Boston Edison Co., 695 N.E.2d 1093 (Mass. App. 1998).


State Publication Standards Citation Rulethat in appropriate cases anorder, direction, judgment, ordecree may be entered withoutstating reasons. The reporter ofdecisions publishes opinions ofthe Appeals Court.

- Mass. App. Ct. R. 1:28"[A] panel of the justices of this

0 court may determine that norArA substantial question of law is

presented by the appeal or thatsome clear error of law has beencommitted... and may, by itswritten order, affirm, modify orreverse the action of the courtbelow."

All Michigan Supreme Court All Supreme Court opinions areopinions are published. Some binding precedent. Supremeorders are not published.2 3 Court orders, regardless of

whether they are published orMich. Ct. R. 7.215(A)-(B) unpublished, are binding asCourt of Appeals opinions must well.24

be written in the form of a. signed opinion, a per curiam Mich. Ct. R. 7.215(C)Z opinion, or a memorandum An unpublished Court of

opinion. Memorandum opinions Appeals opinion is not bindingare not published; per curiam precedent under the rule of stareopinions are not published decisis, but may be cited if aunless one of the deciding judges copy is provided to the courtdirects the reporter to do so. and to opposing parties. ACircumstances when an opinion published opinion of the Courtmust be published include if it of Appeals has precedential

23. E-mail from Danilo Anselmo, Mich. Sup. Ct. Rptr. of Jud. Decisions, to MelissaSerfass (Dec. 13, 2004) (copy on file with authors).

24. Id.



establishes a new rule of law; effect under the rule of stare

construes a constitutional or decisis.d' statutory provision or court rule;

u affects or criticizes existing law;extends existing law in a newfactual context; reaffirms a legalprinciple; or creates or resolvesan apparent conflict of authority.

All Supreme Court opinions are

published.2 5

Minn. R. Civ. App. P. 136.01

Court of Appeals dispositions

may be in the form of published,

unpublished or order opinions.

Minn. Stat. Ann.

§ 480A.08(3)(c) & Spec. R. ofPrac. Minn. Ct. App. R. 4

The Court of Appeals publishes

only those decisions that

establish a new rule of law;

overrule a previous Court of

Appeals's decision not reviewed

by the Supreme Court; provide

important procedural guidelines

in interpreting statutes or

administrative rules; involve a

significant legal issue; or that

would significantly aid in the

administration of justice.

Minn. R. Civ. App 136.01(b)"Unpublished opinions and

order opinions are not

precedential... and may be

cited only as provided in Minn.

Stat. § 480A.08, subd. 3."

Minn. Stat. Ann. § 480A.08(3)& Spec. R. of Prac. Minn. Ct.

App. R. 4

Unpublished opinions are not

precedential. Unpublished

opinions may be cited if copies

are provided to all parties.

25. Telephone Interview with Janet Chapdelaine, Minn. Sup. Ct. Rptr. of Jud.Decisions (Dec. 17, 2004).


State Publication Standards [Citation RuleMiss. R. App. P. 35-A(a), B(a)The Supreme Court or Court ofAppeals "may write opinions onall cases heard by that Court andshall publish all such writtenopinions. In cases where thejudgment of the trial court isaffirmed, an opinion will bewritten in all cases where the...Court assesses damages for afrivolous appeal and in othercases if a majority of the justicesdeciding the case determine thata written opinion will add to thevalue of the jurisprudence of thisstate or be useful to the parties orto the trial court."

Miss. R. App. P. 35-A(c),35-B(d)If all participating justicesconcur, the court may affirm thetrial court action without issuinga formal opinion if an opinionwould have no precedentialvalue and one of the followingcircumstances is dispositive ofthe appeal: the court concurs inthe facts as found by the trialcourt; the jury verdict issupported by material evidence,or there is no reversible error oflaw.

Miss. R. App. P. 35-A(b),35-B(b)"Opinions in cases decided priorto the effective date of this rule[Nov. 1, 1998] which have notbeen designated for publicationshall not be cited, quoted orreferred to by any court or inany argument, brief or othermaterials presented to anycourt."


State I Publication Standards Citation RuleMo. Sup. Ct. R. 84.16(b)In the Supreme Court and theCourt of Appeals, when alljudges in a case agree to affirmand believe that an opinionwould have no precedentialvalue, disposition may be bymemorandum decision or writtenorder. A memorandum decisionor written order may be enteredwhen the appellate courtunanimously determines that anyof the following circumstancesexists and is dispositive: the trialcourt judgment is supported bysubstantial evidence and is basedon findings that are not clearlyerroneous; the evidencesufficiently supports a juryverdict; an administrative agencyorder is supported by theevidence; or no error of lawappears.

Mo. Sup. Ct. R. 30.25(b)In a unanimous decision in acriminal case when all judgesbelieve no jurisprudentialpurpose would be served by awritten opinion, disposition maybe by written summary order.Summary orders are notreported.

Mo. Sup. Ct. R. 84.16(b)"A written statement may beattached to the memorandumdecision or written order settingout the basis for the court'sdecision. The statement shall beunanimous, shall not constitutea formal opinion of the court,shall not be reported, and shallnot be cited or otherwise used inany case before any court."

Mo. Sup. Ct. R. 30.25(b)Summary orders may not becited or otherwise used in anycase before any court.


State Publication Standards Citation RuleMont. I.O.R. § I(3)(c) Mont. I.O.R. § I(3)(c)Appeals that present no Appeals disposed of under thisconstitutional issues or issues of section shall not be citable asfirst impression, or do not precedent but shall be filed asestablish new precedent, modify public documents with the clerk,

0 existing precedent, or, in the and shall be reported by resultopinion of the Court, will not only.

e provide future guidance forcitation purposes, may beclassified by the court asnoncitable opinions. Suchdecisions will not include adetailed statement of facts orlaw.

Neb. Sup. Ct. R. 2(E)(1); Neb.Sup. Ct. R. 12The Supreme Court and Court ofAppeals prepare written opinionsin cases believed to requireexplanation or believed to haveprecedential value.

Neb. Rev. Stat. § 24-208The Supreme Court will reportdecisions which reverse ormodify a district court judgment,and other decisions whichdetermine or modify anypreviously unsettled or new andimportant question of law, orconstrue any provision of theConstitution or a statute notconstrued before, and otherdecisions deemed interesting orimportant.

Neb. Sup. Ct. R. 7(A)A summary disposition by theSupreme Court is appropriate

Neb. Sup. Ct. R. 9(C)(4)"Nebraska cases shall be citedby the state reports, but mayinclude citation to such otherreports as may contain suchcases." The implication is thatonly reported cases may becited.

Neb. Sup. Ct. R. 2(E)(4)-(5)Court of Appeals opinionswhich have been designated"For Permanent Publication" areprecedential and may be cited inany court; other opinions andmemorandum opinions may becited only when related byidentity between the parties orthe causes of action.


State Publication Standards Citation Rulewhen one of the followingcircumstances is dispositive: thejudgment is based on findings offact not clearly erroneous or issupported by substantialevidence; there is sufficientevidence in support of a juryverdict; or no error of lawappears; and the court alsodetermines that a detailedopinion would have noprecedential value.

Neb. Rev. Stat. § 24-1104Court of Appeals decisions areissued in the form of an orderthat may be accompanied by a

0 memorandum opinion.Memorandum opinions are notpublished unless ordered by the

4 Court.

In determining whether topublish a memorandum opinion,the Court of Appeals may takeinto consideration one or moreof the following factors: whetherthe decision enunciates a newrule of law or applies anestablished rule of law to a novelfactual situation; resolves oridentifies a conflict betweenprior Court of Appealsdecisions; contributes to legalliterature by collecting case lawor reciting legislative history; orinvolves a case of substantialand continuing public interest.


State Publication Standards Citation RuleThere are no established rules Nev. Sup. Ct. R. 123governing when an opinion is Unpublished opinions are notwritten. Opinions are published; precedential and may not beunpublished dispositions are cited as legal authority.framed as orders.26

Nev. Rev. Stat. § 2.160"All opinions and decisionsrendered by the supreme courtshall be in writing ......N.H. Sup. Ct. R. 25(1)The Supreme Court may disposeof cases summarily. An order ofsummary affirmance may beentered in those circumstanceswhen no substantial question oflaw exists and the court does notdisagree with the result below;the opinion of the lower courtidentifies and discusses theissues presented and theSupreme Court does not disagreewith them; or no substantialquestion of law is presented inan administrative agency appealand the court does not find thedecision unjust or unreasonable;or for other just cause, in whichcase a succinct statement of thereason for affirmance must beincluded. An order of summarydismissal or summary reversalfor just cause must also contain asuccinct statement of the reasonfor dismissal or reversal.

N.H. Sup. Ct. R. 25(5)"Cases summarily disposed ofunder this rule shall not beregarded as establishingprecedent or be cited asauthority."

N.H. Sup. Ct. R. 12-D(3)An order issued by a three-judgepanel pursuant to this rule shallhave no precedential value andshall not be cited in anypleadings or rulings in any courtin this state.

26. E-mail from Janette Bloom, Nev. Sup. Ct. Clerk of Ct., to Melissa Serfass (Dec. 17,2004) (copy on file with authors).


State Publication Standards Citation RuleN.J. R. Gen. App. 1:36-2All opinions of the SupremeCourt are published unless theCourt directs otherwise.Appellate Division opinions arepublished only when the issuingpanel directs their publication.Publication guidelines foropinions include whether thedecision involves a substantialquestion of U.S. or New Jerseyconstitutional law; determines anew and important question oflaw; affects or criticizes existinglaw; determines a substantialquestion with no New Jerseycase law after Sept. 15, 1948; isof continuing public interest;resolves an apparent conflict ofauthority; or contributessignificantly to legal literature.

N.J. Ct. R. 2:11-3(e)(1)-(2)In a civil appeal, the judgment ororder under appeal may beaffirmed without opinion whenthe Appellate Divisiondetermines that any one or moreof the following circumstances isdispositive: the evidenceadequately supports findings offact made by a trial court, a juryverdict, or an administrativeagency decision; there was nomanifest denial ofjustice on amotion for a new trial; or someor all of the arguments madelack sufficient merit to warrantdiscussion. If in criminal, quasi-

N.J. R. Gen. App. 1:36-3"No unpublished opinion shallconstitute precedent or bebinding upon any court .... Nounpublished opinion shall becited to any court by counselunless the court and all otherparties are served with a copy ofthe opinion and of all otherrelevant unpublished opinionsknown to counsel includingthose adverse to the position ofthe client."

o A



criminal or juvenile appeals, theW Appellate Division determines

S. that some of the arguments made

are without sufficient merit towarrant discussion, the courtmay affirm without an opinion.

N.M. R. App. P. 12-405 N.M. R. App. P. 12-405(C)All formal opinions of the "An order, decision, or

appellate courts are published. A memorandum opinion, becauseformal opinion is not always it is unreported and notnecessary. An order, decision, or uniformly available to allmemorandum opinion is parties, shall not be published0appropriate when the issues have nor shall it be cited as precedent

W previously been decided by the in any court."supreme court or court of

S appeals; the issue is disposed ofby the presence or absence ofsubstantial evidence; a statute orcourt rule is controlling; theasserted error is not prejudicial;or the issues are manifestlywithout merit.N.Y. Jud. Law § 431 There is no official court rule orThe Law Reporting Bureau is statute prohibiting citation of

6 required to publish every unpublished opinions.27

; opinion, memorandum, and: motion transmitted to it by the

Court of Appeals and theAppellate Divisions.

27. E-mail from Gary Spivey, N.Y. Ct. App. State Rptr., to Melissa Serfass (Dec. 15,2004) (copy on file with authors). Regarding the precedential value of unpublished NewYork Supreme Court opinions, in Eaton v. Chahal, 553 N.Y.S.2d 642, 646 (Sup. Ct. 1990),the court commented on "the practice of citing to this court unreported decisions issued byjudges of coordinate jurisdiction. Such decisions, although entitled to respectfulconsideration, are not binding precedent upon this court."


28. Id. For details on selection criteria for the Miscellaneous Reports, see the NewYork State Law Reporting Bureau web site, http://www.courts.state.ny.us/reporter/Selection.htm (visited Jan. 7, 2005). Under a program approved by the Court ofAppeals in 2001, lower court opinions not selected for publication in the MiscellaneousReports may be selected for publication in the New York Slip Opinion Service(www.courts.state.ny.us/reporter/Decisions.htm) and the New York Official Reports (NY-ORCSU) on Westlaw. Id

29. Telephone Interview with Phyllis Goodwin, N.C. Sup. Ct. Editorial Assistant (Dec.17, 2004).

State Publication Standards Citation RuleThe State Reporter alsoselectively publishes Appellate

- Term and Trial Court opinions inthe Miscellaneous Reports.28

All Supreme Court opinions are N.C. R. App. P. 30(e)(3)published, some as per curiam An unpublished decision of theorders.29 North Carolina Court of

Appeals does not constituteN.C. R. App. P. 30(e)(1) controlling legal authority, andThe Court of Appeals is not citation of unpublished opinionsrequired to publish an opinion in in briefs, memoranda, and oralevery decision. If the deciding arguments in the trial and

6 panel determines that the appeal appellate divisions is disfavored.O involves no new legal principles However, if a party believes that, and that a published opinion an unpublished opinion hasa-

O would have no precedential precedential value to a materialzvalue, it may direct that no issue in the case and that noopinion be published, published opinion would serve

as well, the party may cite theunpublished opinion. Whenciting an unpublished opinion, aparty must indicate that theopinion is unpublished.


Rule 35.1 summary dispositionsmay be cited as precedent.

3 1

30. The North Dakota Court of Appeals is not a permanent sitting court. It receivesassignments from the Supreme Court mainly to alleviate the Supreme Court's workload.Although the rules establishing the Court of Appeals allow for discretionary publication,Court of Appeals opinions have not been numerous, and all of its opinions are published ina manner similar to that used by the Supreme Court. Telephone Interview with PennyMiller, Clerk of N.D. Sup. Ct. (Dec. 15, 2004).

31. Id.

State IPublication Standards Citation Rule

N.D. R. App. P. 35.1The Supreme Court may affirmby summary opinion in any casein which no reversible error oflaw occurred and one of thefollowing situations exists: theappeal is frivolous andcompletely without merit; thejudgment of the trial court isbased on findings of facts thatare not clearly erroneous; thejury verdict is substantiallysupported by evidence; the trialcourt did not abuse its discretion;the administrative agency orderis supported by a preponderanceof the evidence; the summaryjudgment, directed verdict, orjudgment on the pleadings issupported by the record; or aprevious controlling appellatedecision is dispositive of theappeal. The court may alsoreverse by summary opinionwhen a previous controllingappellate decision isdispositive.

30


State Publication Standards Citation RuleOhio Sup. Ct. R. for Reporting Ohio Sup. Ct. R. forOp. I(A) Reporting Op. 4All Supreme Court opinions are "All court of appeals opinionsreported in the Ohio Official issued after the effective date ofReports. these rules [May 1, 2002] may

be cited as legal authority and

Ohio Sup. Ct. R. for Reporting weighted as deemed appropriateOp. 5 by the courts." All former rules

.2 Court of Appeals and trial court creating distinctions between

0 opinions which construe, apply, "controlling" and "persuasive"or clarify recently enacted opinions of the courts of appealsstatutory or administrative law; based upon whether they haveaffect an existing rule of law; been published in the Ohioapply an established rule of law Official Reports have beento novel facts; or significantly abolished.contribute to the development ofthe law may be designated forprint publication.Okla. Sup. Ct. R. 1.200(a)

Supreme Court and Court of

Civil Appeals opinions are

issued in memorandum form

unless they establish, criticize, or

affect a rule of law; involve a

legal issue of continuing public

interest; apply an established

rule to a novel fact situation;

resolve an apparent conflict; or

contribute a historical legal

review or description of

legislative history to legal

literature.

Okla. Ct. Crim. App. R. 3.13

(A)"Opinions may be by Summary

Opinion form, memorandum, or

Okla. Sup. Ct. R. 1.200(b)(5)-(8)Memorandum opinions, unlessotherwise required to bepublished, are marked: "Not forOfficial Publication." Theseopinions shall not be consideredas precedent by any court orcited in any brief or otherdocument. They shall neither bepublished in the unofficial orofficial reporter, nor on theSupreme Court web site.Supreme Court and Court ofCivil Appeals dispositions inwhich there are no publishedopinions will be reported bybrief reference in the unofficial


State Publication Standards Citation Ruleof such length and detail as the reporter, the, Oklahoma BarCourt determines." 32 Journal. Opinions designated

"For Publication in O.B.J.Only" are not precedential.

Okla. Ct. Crim. App. R.3.5(C)(3)

S:z"In all instances, an unpublished0 opinion is not binding on this

Court. However, parties maycite and bring to the Court'sattention the unpublishedopinions of this Court providedcounsel states that no publishedcase would serve as well thepurpose of which counsel citesit ...."

All opinions of the Supreme Or. R. App. P. 5.20(5)Court and Court of Appeals are "Cases affirmed without opinionpublished. Court of Appeals by the Court of Appeals shoulddecisions affirmed without not be cited as authority."

W opinion are published by case33

O caption and number only. No precedential value isaccorded to Court of Appealsdecisions published by casecaption and number only.34

32. Specific publication standards for the Court of Criminal Appeals were not found.Standards for the Emergency Appellate Division of the Court of Criminal Appeals arefound at Okla. Ct. Crim. App. R. 12.12(C).

33. Email from Mary Bauman, Or. Sup. Ct. Rptr. of Jud. Decisions, to Melissa Serfass(Dec. 21, 2004) (copy on file with authors).

34. Id.


State Publication Standards Citation RulePa. R. Sup. Ct. I.O.P. III(Notes)A per curiam order may be usedwhen the Court's decision doesnot establish a new rule of law,does not affect or criticize anexisting rule; does not apply anestablished rule to novel facts;does not constitute the only, oronly recent, binding precedenton an issue; does not involve alegal issue of continuing publicinterest; or whenever the Courtdecides it is appropriate.

Pa. R. Cmmw. Ct. I.O.P. § 412(210 Pa. Code § 67.53)The author of a CommonwealthCourt opinion of a panel or thecourt en banc recommendswhether it is reported. Generallya decision should be publishedwhen any of the following apply:it establishes a new rule of law,applies an existing rule to novelfacts, affects or criticizes anexisting rule, or resolves anapparent conflict of authority; itinvolves a legal issue ofcontinuing public interest; or itconstitutes a significant, non-duplicative contribution to lawby way of an historical legalreview, a review of legislativehistory, or a review of

Commonwealth v. Tilghman,673 A.2d 898 (Pa. 1996).The court in Tilghmanattempted to clear up the"confusion within the Bar ofthis Commonwealth regardingthe precedential value of ordersof this Court affirming (orreversing) per curiam an orderof a lower court." Tilghman,673 A.2d at 903. "If a majorityof the Justices of this Court,after reviewing an appeal beforeus ... join in issuing an opinion,our opinion becomes bindingprecedent on the courts of thisCommonwealth." Tilghman,673 A.2d at 903 (citingCommonwealth v. Mason, 322A.2d 357 (Pa. 1974)).

When a per curiam opinion ofthe Supreme Court affirms onthe basis of the opinion of thelower court, the holding andreasoning of that opinionbecome Supreme Courtprecedent. When a per curiamSupreme Court affirmance saysnothing more, the lower courtrationale is not adopted and isnot precedential.

3 5

35. Richard B. Cappalli, Wat Is Authority? Creation and Use of Case Law byPennsylvania's Appellate Courts, 72 Temple L. Rev. 303, 362-365 (1999). This articleprovides an outline of the "rules" set forth in Tilghman and a discussion of each rule'sprecedential value.


State I Publication Standards Citation Ruleconflicting decisions amongcourts of other jurisdictions.

Pa. R. Cmmw. Ct. I.O.P. § 413(210 Pa. Code § 67.54)Each reported opinion isdesignated an "opinion." Anunreported opinion is designateda "memorandum opinion."

Pa. R..App. P. 3519In a brief to the Superior Court,either party may requestpublication of the court'sdisposition. Reasons forpublication may include that thelower court has decided aquestion of substance notpreviously determined by theSuperior Court or the SupremeCourt, or has rendered a decisionconflicting with another lowercourt decision on the samequestion, or the questioninvolves an issue of substantialpublic importance.R.I. Gen. Laws § 8-1-3"The supreme court shall renderwritten opinions in all casesdecided by it wherein points oflaw, pleading, or practice havearisen which are novel or ofsufficient importance to warrantwritten opinions."

R.I. Gen. Laws § 8-1-6"The reporter shall make truereports of all cases in whichwritten opinions have been

Pa. R. Cmmw. Ct. I.O.P. § 414(210 Pa. Code § 67.55)Unreported opinions of the courtshall not be relied upon or citedby a Court or party in any otheraction or proceeding.... Asingle judge opinion, even ifreported, shall be cited only forits persuasive value, not as abinding precedent."

Pa. R. Super. Ct. I.O.P.65.37(A) (210 Pa. Code§ 65.37)An unpublished memorandumdecision may not be relied uponor cited.

R.I. Sup. Ct. R. 16(0)"Unpublished orders will not becited by the Court in its opinionsand such orders will not be citedby counsel in their briefs.Unpublished orders shall haveno precedential effect."

n


State Publication Standards Citation Rule, rendered, and of all decisions

and rescripts of the court whichhe or she may deem to beimportant and useful, and also

all such matters as the court mayorder to be reported."S. C. App. Ct. R. 220The Supreme Court or Court ofAppeals shall make its decisionsin writing either by published ormemorandum opinion. Publishedopinions shall appear in theofficial reports; memorandumopinions shall not be published.The Supreme Court may file amemorandum opinion when theCourt unanimously decides thata published opinion would haveno precedential value and anyone or more of the followingcircumstances exists and isdispositive: the judgment of thetrial court is based on findings offact which either are or are notclearly erroneous; the evidenceto support a jury verdict is or isnot insufficient; anadministrative agency ordermeets or does not meet thestandard of review; or that noerror of law appears. "The Courtof Appeals need not address apoint which is manifestlywithout merit."

S. C. App. Ct. R. 220(a)Memorandum opinions have noprecedential value.

S. C. App. Ct. R. 239(d)(2)"Memorandum opinions andunpublished orders have noprecedential value and shouldnot be cited except inproceedings in which they aredirectly involved."

_______ I ______________________________ ______________________________


State Publication Standards Citation RuleS.D. R. App. P. 15-26A-87.1 S.D. R. App. P. 15-26A-The Supreme Court may affirm 87.1(E)or reverse a judgment or order of Orders or memoranduma trial court by order or opinions issued under thismemorandum opinion when it is section shall not be cited orclear from the record that the relied on as authority in anyissues are clearly controlled by court.settled law; findings of fact or

S jury verdict are clearly supportedo by sufficient evidence; an issue

of material fact made summaryjudgment inappropriate; or theissue was one ofjudicialdiscretion and abuse is clearlypresent or absent.

Tenn. R. Sup. Ct. 4(A)(2)All opinions of the SupremeCourt are published in theofficial reporter unless explicitlydesignated "Not forPublication."

Tenn. Ct. App. R. 10The Court of Appeals mayaffirm, reverse, or modify thetrial court by memorandumopinion when a formal opinionwould have no precedentialvalue. Publication ofintermediate appellate courtopinions does not go forwarduntil the issue of appeal to theSupreme Court has beenresolved. The individual rulesprovide specific publicationguidelines when application forpermission to appeal has beenfiled, granted, or denied.

Tenn. R. Sup. Ct. 4(H)(1)Unless designated "Not forCitation" under subsection (F)of this rule, unpublishedSupreme Court opinions arepersuasive authority.

Tenn. R. Sup. Ct. 4(F)(1)-(2)Opinions with a 'Not forCitation' designation have noprecedential vlaue and may notbe cited by any judge or by anylitigant.

Tenn. Ct. App. R. 10Court of Appeals memorandumopinions shall not be cited orrelied on for any reason.

Tenn. Ct. App. R. 12 (a);Tenn. Ct. Crim. App. R. 19(4)When unpublished opinions arecited, copies must be provided.


State Publication Standards Citation RuleTenn. R. Sup. Ct. 4(F)(1)-(2)If an application for permission

z to appeal is denied by [theZ Supreme] Court with a 'Not for

W Citation' designation, theopinion is not published in anyofficial reporter.Tex. R. App. P. 63The Supreme Court hands downa written opinion in every case inwhich it renders a judgment.

Tex. R. App. P. 47.2Each opinion of the court mustbe designated either an"Opinion" or a "MemorandumOpinion. Each opinion in acriminal case must bear thenotation "publish" or "do notpublish."

Tex. R. App. P. 47.4A Court of Appeals opinionshould be published only when itestablishes, affects, or criticizesa rule of law; applies an existingrule to a new fact situation;involves a legal issue ofcontinuing public interest;involves constitutional lawissues; or resolves an apparentconflict of authority.

Tex. R. App. P. 77.2A majority ofjudges willdetermine when Court ofCriminal Appeals opinions willbe published.

Tex. R. App. P. 47.7"Opinions not designated forpublication by the court ofappeals under these or priorrules have no precedential valuebut may be cited."

Tex. R. App. P. 77.3Unpublished opinions of theCourt of Criminal Appeals haveno value as precedent and mustnot be cited as authority.


State I Publication Standards [ Citation Rule

Supreme Court opinions arepublished. The Court of Appealsmay issue opinions,memorandum decisions, or percuriams. Full opinions arepublished. Memorandum and percuriam decisions generally arenot officially published. 36

Utah R. App. P. 30(c), (d)When a judgment, decree ororder of the Supreme Court orCourt of Appeals is reversed ormodified, the reasons shall begiven in writing. The court maydispose of a case by expediteddecision without written opinionif it satisfies the criteria of Rule31(b).

Utah R. App. P. 31(b), (d)Cases qualifying for expediteddecision without opinion includeappeals involving uncomplicatedfactual issues primarily based ondocuments; summary judgments;dismissals for failure to state aclaim or lack ofjurisdiction; andcases based on uncomplicatedissues of law. Expedited appealwill not be granted when a caseraises a substantial constitutionalissue, an issue of significantpublic interest, an issue of firstimpression, or a complicatedissue of fact or law.

Utah R. App. P. 30(f)Unpublished decisions may becited.

Utah R. App. P. 31(f)"Appeals decided under this rulewill not stand as precedent, but,in other respects, will have thesame force and effect as otherdecisions of the court."

Utah R. Crim. P. 37Unpublished decisions may becited as precedent.

36. E-mail from Matty Branch, Utah App. Cts. Administrator, to Melissa Serfass(Jan. 7, 2005) (copy on file with authors).


State Publication Standards Citation RuleVt. R. App. P. 33.2 Vt. R. App. P. 33.1(c)A full opinion may be An entry order decision issuedappropriate when the Court is by a three-justice panel underestablishing a new rule of law, the guidelines set forth in Ruleaffecting or criticizing an 33.2 that is not published in theexisting rule, or applying an Vermont Reports may be cited

= established rule to a novel fact as persuasive authority but is02 situation; the appeal involves a not considered controllingQJ legal issue of substantial public precedent.

interest; or the Court may beresolving a conflict or apparentconflict between panels of theCourt. In other instances, anentry order or per curiamopinion may be appropriate.

The Supreme Court determinesby judicial discretion duringconference which cases will bedecided by order and which willbe decided by a published

* • 37opinion.

Va. Sup. Ct. R 5:42(i)"A written opinion of theSupreme Court stating the lawgoverning each question certi-fied will be rendered as soon aspracticable after the submissionof briefs and after any oral argu-ment. The opinion will be sentby the clerk under the seal of theSupreme Court to the certifyingcourt and to counsel for theparties and shall be published inthe Virginia Reports."

There is no prohibition againstciting unpublished orders of theSupreme Court, though theirvalue is probably just aspersuasive authority.

38

Grajales v. Commonwealth, 353S.E.2d 789, 790 n. 1 (Va. App.1987): "Unpublishedmemorandum opinions of [theCourt of Appeals] are not to becited or relied upon asprecedent."

Fairfax County Sch. Bd. v. Rose,509 S.E.2d 525, 528 n. 3 (1999):"Although an unpublishedopinion of the Court [ofAppeals] has no precedentialvalue [citing Grajales] a court

37. Telephone Interview with Patricia Harrington, Clerk of Va. Sup. Ct. (Jan. 7, 2005).38. Id.


State Publication Standards Citation RuleVa. Code Ann. § 17.1-413(A) or the commission does not errThe Court of Appeals in its by considering the rationale anddiscretion may render its adopting it to the extent it isdecision by order or memoran- persuasive."dum opinion. All orders andopinions of the Court are

:t preserved with the record of thez case. Opinions the Court

designates as having prece-dential value or other legalsignificance are reported inseparate Court of AppealsReports in the same manner asdecisions and opinions of theSupreme Court.

All Washington Supreme Courtopinions are published.

39

Wash. R. App. P. 12.3(d)Whether an opinion will beprinted in the WashingtonAppellate Reports or be filed forpublic record only will bedetermined by a majority of theissuing panel pursuant to Wash.Rev. Code § 2.06.040. In makingthis determination the panel willuse at least the followingcriteria: whether a case decidesan unsettled or new question oflaw or constitutional principle;affects or reverses an establishedprinciple of law; is of generalpublic interest or importance oris in conflict with a prior opinionof the Court of Appeals.

Wash. R. App. P. 10.4(h)An unpublished opinion of theCourt of Appeals may not becited as authority. Unpublishedopinions are defined as thosenot published in the WashingtonAppellate Reports.

39.2004).

Telephone Interview with Tim Fuller, Wash. Sup. Ct. Rptr. of Decisions (Dec. 17,


State Publication Standards [ Citation Rule

All Supreme Court opinions are Per curiam opinions andpublished; the Court disposes of authored opinions may be citedsome issues by unpublished as precedent; unpublishedorder.42 orders may not.'3

o Wis. Stat. § 809.23(1)(a) Wis. Stat. § 809.23(3). In the Court of Appeals, criteria An unpublished opinion is of no

for publication in the official precedential value and may notreports include whether the be cited as precedent oropinion states a new rule of law authority.or affects or criticizes an existing I

40. Telephone Interview with Rory L. Perry 11, W.V. Sup. Ct. App. Clerk of Ct. (Dec.17, 2004).

41. Id.42. Telephone Interview with Cornelia Clark, Wis. Sup. Ct. Rptr. of Jud. Decisions

(Dec. 17, 2004).43. Id.

W.Va. Const. art. VIII, § 4The state constitution requiresthe Court "to prepare a syllabusof the points adjudicated in eachcase in which an opinion iswritten... which shall beprefixed to the published reportof the case." Thus, all opinionsare published.

Memorandum orders inadministrative appeals andcertain per curiam orders are notpublished.

40

Walker v. Doe, 558 S.E.2d 290,296 (W.V. 2001).Per curiam opinions may becited in support of legalarguments. "While per curiamopinions differ from signedopinions based on the absenceof new syllabus points, percuriam opinions nonethelesshave precedential value as anapplication of settled principlesof law to facts necessarilydiffering from those at issue insigned opinions... [W]e herebyrenounce any prior statements ofthis Court to the effect that percuriam opinions are not legalprecedent."Unpublished memorandum andper curiam orders have nopersuasive or precedentialvalue.4 1


State Publication Standards Citation Rulerule; applies an established ruleto a novel fact situation; resolvesor identifies a conflict of

".. authority; contributes to the legalQ literature by reviewing case law

or legislative history; or decidesa case of substantial andcontinuing public interest.Wyo. R. App. P. 9.01 Wyo. R. App. P. 9.06Appellate court decisions are set Abbreviated opinions are not

forth in a written opinion or published or generallyorder. disseminated and do not

constitute precedent of theWyo. R. App. P. 9.06 appellate court.

The appellate court may issue ao ruling without a published: decision when all parties to an

appeal stipulate in writing thatthey so desire. Such abbreviatedopinions provide the ultimatedisposition without a detailedstatement of facts or law.

federal and state court rules governing publication and

Documents