December 2000

Unpublished Decisions: Routine Cases or Shadow Precedents? 

by Eron Berg

Over the past 40 years virtually every jurisdiction in the United States, including Washington, has established a dual track for reporting its appellate decisions. Decisions that are considered to have "precedential value" are published, while those considered by the court to be more routine are not. Recently, though, the United States Court of Appeals for the 8th Circuit invalidated its own two-track rule, holding that it was a violation of Article III of the Constitution.

Attorney Eron Berg reviews the history of the two-track system, suggests that it may be leading to a system of shadow precedents, and finds that publication in the Court of Appeals may increase the chances that the Supreme Court will accept the case for review.

This is an issue that should interest every attorney. — The Editor

Since the early 1970s, courts across the United States have implemented programs designed to limit the ever-growing stacks of casebooks filled with judicial opinions. Now, in Anastasoff v. United States, (223 F.3rd 898, August 22, 2000), the 8th Circuit calls into question the constitutionality of limited publication schemes in Article III courts.

In 1964 the Judicial Conference of the United States expressed concern over the ever- increasing number of published cases and its effect on maintaining accessible public and private law libraries.1 As a result of that concern, the Judicial Conference ordered

"[T]hat the judges of the courts of appeals and the district courts authorize the publication of only those opinions which are of general precedential value and that opinions authorized to be published be succinct."2 

In 1971, the Federal Judicial Center issued a report which helped spark interest and energy toward establishing limited publication plans.3 In 1972, the Judicial Conference directed the circuit courts to begin developing limited publication plans.4 By 1976, all federal appellate courts had adopted limited publication plans.5 

The rationale for these plans includes judicial efficiency, cost and fairness.6 Arguably, these plans increase judicial efficiency because judges reduce time spent writing opinions that add nothing new to the law.7 They are able to leave out substantial detail, such as the history and facts of the case. Costs include the expense of publishing every decision, spending the time to cull through all those decisions (discussed in detail later), and spending the money to pay judges to write the decisions. The increased cost to consumers for legal services raises fairness issues. With additional opinions, larger companies and law firms will be advantaged because they can afford to maintain larger law libraries.

The real impetus for these plans, though, seems to be the sheer volume of new case law. As long ago as 1824 one observer noted

"[T]he multiplication of reports emanating from the numerous collateral sources of jurisdiction, [sic] is becoming an evil alarming and impossible to be born [sic]." 

Judge Boyce Martin, Jr. notes that 

"[U]npublished opinions act as a pressure valve in the system, a way to pan for judicial gold while throwing the less influential opinions back into the stream."8 

Limited publication plans are all premised on the assumption that opinions that make no new law should not be published and that publishing opinions is more expensive than not publishing opinions.9 Plans vary as courts decide how their unpublished decisions will be used. Since unpublished decisions are not secret or hidden, people do access and use them (e.g., through Lexis or Westlaw).10 What differentiates unpublished decisions from published decisions are the citation rules for the unpublished decisions. Most plans, including Washington's, discourage or ban the citation of unpublished decisions.11 If unpublished decisions are allowed to be cited, they are usually allowed only as persuasive authority. Judge Martin concluded: 

"If we do not discourage citation to unpublished opinions, then we are creating a type of second-class precedent."12  

However, circuits and states have a multitude of differences. For example, the 10th U.S. Circuit Court of Appeals suspended its ban on the citation of unpublished decisions in 1994.13 Most circuits allow the electronic dissemination of unpublished decisions through websites or legal research companies such as Lexis or Westlaw, but the 2nd, 3rd, 5th and 11th circuits do not even allow for the dissemination of such decisions.14 In those circuits, they are given to the parties and made available only pursuant to public records laws. In Washington unpublished decisions cannot be cited, but are routinely published on both Lexis and Westlaw.15 

Judge Martin identified one of the more substantial problems of fairness for limited publication plans:

"The litigant who garners ideas and arguments from unpublished opinions but does not cite to them, however, need never reveal the paper trail. This is a weakness in the use of unpublished opinions that no-citation rules will not eradicate."16 

This clearly illustrates one side of a difficult balancing act: if courts allow unpublished decisions to be cited, then the purpose is defeated. If they are not allowed to be cited, then one party gains an advantage by using a judge's prior decision against an opponent without having to share or cite the opinion. Further, in those cases where unpublished decisions do make new law or shed new light on a particular topic, litigants and judges have an incentive to use them, even if the use is surreptitious (i.e., follow the logic of the opinion in briefs to the court without citing the opinion to the court).17 

Professor Lauren Robel identified other potential issues of fairness when repeat litigants are involved or when opinions written about specific subject areas are mostly unpublished. Specific areas where unpublished decisions dominate include

"review of agency determinations in immigration and social security cases, Federal Tort Claims Act cases, criminal and habeas appeals, civil rights actions, and employment discrimination complaints against the federal government."18 

Since the government acts as a party in many of these areas, Professor Robel surveyed agencies and determined that all of the government offices surveyed do use unpublished decisions in making litigation and settlement decisions as well as writing briefs. Some offices maintain indexes to unpublished decisions. All of the offices indicate that they had moved to publish an unpublished decision. The active and regular use of unpublished decisions within a particular subject area, particularly when one of the parties remains constant, allows one party substantial knowledge and to some extent control over a particular body of law.

Another example of this problem is the use of an unpublished decision in the aftermath of Hurricane Hugo. In Prudential-LMI Commercial Insurance Co. v. Colleton Enterprises Inc.,19 an unpublished decision, the court held that a hotel damaged by Hugo could not recover from its insurer the increase in projected lost earnings from being unable to accommodate the influx of people as a result of the hurricane.20 The insurance industry published the decision in a trade journal and used the decision as a basis to deny similar claims after Hurricane Andrew, despite the fact that the decision was unpublished and of no precedential value.21 In this example, the insurance companies were able to use an unpublished decision to great effect, and arguably in a manner that denied fairness to plaintiffs.

A final complaint about perceived fairness is that litigants feel their case was not heard or decided with as much care because the decision is not reported. Because unpublished decisions are often shorter, and less time is spent explaining the details and applying the law to facts of the case, litigants may feel that the judge or court did not seriously consider their cases and legal positions. The implication is that the court did not really listen or take the time to fully understand their situation, because the unpublished decision seems too short and incomplete.22 This is a pro-position for which I have seen no empirical studies reported.

Another substantial complaint is that unpublished decisions reduce precedent.23 While a rationale for limited publication plans includes not publishing those cases where no new law is created, the problem is defining "no new law created." Each case, no matter how repetitive, provides litigants with new information. If it is identical to a prior case, then it allows a litigant to know that the court still holds the same way about a given topic. However, more common are cases that present facts slightly different from established precedent. Those cases add additional facts that can be used to find similarities with or distinguish a litigant's case.

Limited publication plans aim to avoid missing such cases by allowing publication through various means.24 Some plans allow parties to move for publication. Some plans allow a single judge the power to publish, even though a majority would prefer it unpublished.25 The bigger problem with loss of precedent is those cases where new law is made and they are still released as unpublished decisions.

There is substantial anecdotal material suggesting that new law is in fact released in unpublished decisions. In the 5th Circuit "every opinion believed to have precedential value" is supposed to be published.26 However, unpublished decisions made prior to 1996 are still binding precedent, while decisions made after January 1, 1996 are only persuasive, and have no precendential value.27 In Hodges v. Delta Airlines, Inc.,28 the court indicated that it was bound by an earlier unpublished decision to hold that the federal Airline Deregulation Act of 1978 preempted a tort suit for personal injuries caused by unsafe in-flight conditions. The court even stated its belief that the act should not have a preemptive effect.29 Clearly, in this case the court should have published the case it cited because in citing that case it made new law, and cases that have precedential value are required to be published. Here, the unpublished decision was elevated to new law by a subsequent decision.

The court also relied on an unpublished decision in Peters v. United States.30 However, in Peters the court had intended not to publish the decision, but agreed to a publication request by the Assistant U.S. Attorney on that case. This led one commentator to note that if the court had not published the decision, it could have resulted in an "underground stream of precedent — unpublished opinions relying on other unpublished opinions."31 

In this state, a recent unpublished opinion from Division Three of the Washington State Court of Appeals, Morisoli v. Sykora,32 held that contractors who work directly for property owners are exempt from the Contractor Registration Act (CRA). The purpose of the CRA is to afford protection to the public from unreliable, fraudulent, financially irresponsible, or incompetent contractors.33 The decision clearly ignored the legislative intent and purpose in enacting the CRA by exempting registered contractors who work directly for owners. The Morisoli court's holding was contrary to both the purpose of the CRA and prior holdings.34 This case illustrates what can happen when courts fail to publish decisions that announce new law.35 As a result of this decision, Division Three litigants are not afforded the predictability of knowing the law. The Morisoli decision operates as a "shadow" precedent, eroding rights granted under the CRA. Potential litigants must decide between going to trial with the CRA, or settling with Morisoli.

Another substantial issue centers around the heart of the American system of jurisprudence and the very development of common law. As every practitioner knows, each new judicial pronouncement provides some information relevant to a particular body of law. Whether the pronouncement is a new holding that changes the direction of a particular body of law, or the holding is just one more in a long line of cases, the practitioner is able to learn something. Either the law is taking a new direction, or the old line of cases is still alive and strong. There is value in knowing that a particular holding is still strong and not waning, or on its way to being modified or even overruled.36 Furthermore, bodies of law develop with subtle changes over time. Some holdings are not recognized as significant until after they are reported and later interpreted by a different court. In that circumstance, as well as in the case where a practitioner follows a body of law, unpublished decisions which are not precedent cannot fulfil those important roles.

Some argue that too much case law will damage the whole system of precedent by requiring too much effort to search and fostering too much diversity of opinion. In fact, they are really arguing for slower and simpler changes in the reported precedent. While this certainly allows for greater stability and predictability, other commentators suggest that there is in fact an inadequate supply of precedent. 

"Despite the vast number of published decisions, most federal circuit judges will confess that a surprising fraction of federal appeals are difficult to decide, not because there are too many precedents but because there are too few on point."37 

As a criticism of unpublished decisions, Judge Martin noted that there is a "difficulty of higher court review, [and] that the Supreme Court is far less likely to review an unpublished opinion than it is to review a published opinion."38 This criticism seemed reasonable, but discourse on the topic particularly relevant to Washington courts was surprisingly absent. In an effort to provide some empirical data to the discussion, I reviewed all Washington State Supreme Court decisions issued between January 1, 1999 and June 30, 1999.39 The total number of decisions made was 473, including decisions on petitions for review from a variety of sources and opinions.

Of the 415 decisions on petitions for review, 64 did not have opinions from the Court of Appeals (such as petitions for direct review40), while 351 were petitions for the review of decisions from the Court of Appeals. Of those 64 petitions without Court of Appeals decisions, none was granted review. None of these petitions is relevant to this study.

Of the 351 petitions with Court of Appeals decisions, 133 were published by the Court of Appeals (review granted for 42, denied for 91), while 218 were unpublished (review granted for 12, denied for 206). Of the 351 petitions, 15.4 percent were granted review (12 percent from published decisions and 3.4 percent from unpublished decisions). Within the 133 petitions for review of published decisions, 42 petitions were granted (31.6 percent), while 91 petitions were denied (68.4 percent). Within the 218 petitions for review of unpublished decisions, 12 petitions were granted (5.5 percent), while 206 petitions were denied (94.5 percent), indicating that petitions from published decisions were granted review in greater number and proportion than petitions from unpublished decisions.

Of the 58 opinions written and announced during the time of study, 18 were not preceded with decisions from the Court of Appeals, while 40 were so preceded. The 18 opinions that were not preceded with decisions from the Court of Appeals (such as those where direct review was granted, certified questions from federal court, appeals of commissioners' rulings, etc.) are not relevant to this inquiry. Of the 40 opinions that were preceded, 34 (85 percent) were preceded by published decisions and six (15 percent) were preceded by unpublished decisions. This indicates that the rate of review noted in the petitions for discretionary review is somewhat stable over time, as these opinions are the product of petitions from many months earlier and they share a similar rate of review.

The conclusions indicated by this relatively small study of Washington Supreme Court decisions is that the Court grants review more often for published decisions than it does for unpublished decisions. It is not suggested that the only reason for the disparity is the difference in publication. However, publication may factor into the decision-making process. Other possible reasons for the disparity include:

• Judges spend less time writing unpublished opinions, thereby making "sloppy" decisions;
• Unpublished decisions are written for cases where the issues of law are well-settled, thereby negating the Court's need to clarify or settle issues or address issues of first impression.

At first look, it does not make sense that "sloppy" decisions would result in a lower rate of review. However, those "sloppy" decisions may reach the correct result without providing a complete and detailed analysis. The lack of detailed analysis could lead litigants to seek review, while the same decision with a proper analysis would satisfy litigants' need to understand. Regardless of the reason for the disparity, the odds of review being granted by the Court are substantially enhanced if the lower court decision is published.

In Washington, the Legislature enacted laws pertaining to publication of opinions of the Court of Appeals in 1969.41 At that time, "all opinions of the court shall be published" was the law. In 1971, the Legislature modified the law to allow unpublished opinions.42 No changes have been made regarding the publication of decisions since that time, and RCW 2.06.040 clearly identifies the standards by which the court is required to decide whether a particular decision is published or not.43 Shortly after the adoption of this new rule, the first and only published opinion interpreting RCW 2.06.040 was written.44 

In State v. Fitzpatrick, the state cited an unpublished decision of the Court of Appeals in its brief. While the Fitzpatrick court noted that use of that case would not affect the decision, it still explained the basis for the legislative enactment. The court provided standards for publication of opinions and held that unpublished opinions of the Court of Appeals "will not be considered in the Court of Appeals and should not be considered in the trial courts."45 In reaching its decision the court commented on the legislative reasoning behind RCW 2.06.040: "To continue the publication of cases which merely restate well established principles of the law fills up our book shelves, complicates legal research and will inevitably adversely affect the computerization of the case law of our state."46 The court further stated: "If the trial courts were to consider them it would not only be wasteful of their time but would permit any group of lawyers to collect such opinions and create an unfair advantage by citing cases not available to their opponents."47 It is important to consider in detail what the court said, because this is the only case that provides any guidance on the application of RCW 2.06.040.

The Fitzpatrick court found that "opinions of the Court of Appeals should be published: 

(1) where the decision determines an unsettled or new question of law or constitutional principle; 
(2) where the decision modifies, clarifies or reverses an established principle of law; 
(3) where the decision is of general public interest or importance; 
(4) where the case is in conflict with a prior opinion of the Court of Appeals; or
(5) where the decision is not unanimous."48 

"Opinions of the Court of Appeals should not be published: 
(1) where an affirmance is based upon the conclusion that the evidence is sufficient to sustain the findings of fact of the trial court, except where the issue of sufficiency involves a novel or important question of law; 
(2) where the decision, whether an affirmance or reversal, is determined by following a legal principle or principles well-established by previous legal decisions; 
(3) where the decision, whether an affirmance or reversal, is based upon a question of practice or procedure, except where the question is one of such importance in the administration of law that it should be settled by an authoritative pronouncement."49 

Some of these standards were included in the Rules of Appellate Procedure.50 

Even with clear standards, a party might believe that an unpublished decision should have precedential value and be published. Given the possibility that the Supreme Court would be less likely to grant review of an unpublished opinion than of a published opinion, and considering the data provided in an earlier section, parties may wish to consider moving for publication of unpublished decisions prior to petitioning for review. For parties who want a decision published, the Court has provided a process.51 The request is made by motion and can be made by anyone, not just parties to the action. The motion should be made within 20 twenty days after the opinion is filed.52 Once the request is filed, a judge will decide the motion, rather than a clerk or commissioner.53 

In addition, filing a motion to publish has actual consequences on additional proceedings. RAP 13.4 outlines the process by which parties petition for review by the Supreme Court. However, in certain circumstances, petitions for discretionary review will not be forwarded to the Court. Those circumstances include the time before the Court of Appeals has made a determination on either a motion for reconsideration or a motion to publish.54 Therefore, a party in a hurry to file a petition for discretionary review may be slowed by filing a motion to publish. Balancing the parties' sensitivity to time with the potential benefits of a published decision are clearly issues of legal strategy.

There seems to be a relationship between publication by the Court of Appeals and review by the Washington State Supreme Court. While there are many potential causes for this relationship, it is plausible that the very fact of publication plays some role in whether the Court grants review. Therefore, it is very important that any unpublished decision of the Court of Appeals which should have been published is published prior to petitioning for discretionary review.

Limited publication plans for unpublished decisions and no-citation rules are in question as a result of the 8th Circuit Panel's holding in Anastasoff v. United States. In Anastasoff, the Court specifically held that the portion of their Rule 28A(i) that declares unpublished decisions are not precedent is

"…unconstitutional under Article III, because it purports to confer on the federal courts a power that goes beyond the 'judicial.'"55 

Specifically, the Court accepted the proposition that courts are necessarily limited by prior decisions, and to exclude such decisions from the process would allow the Court a power that goes beyond the constitutionally and historically recognized power of the judiciary. Washington's limited publication plan is very similar to the 8th Circuit's Rule 28A(i), and given that the role of precedent in Washington's courts is equally as important as in an Article III Court, it seems that Washington's limited publication plan may also be in jeopardy.

NOTES

1 Kirt Shuldberg, Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals, 85 Calif. L. Rev. 541, 546-547 (1997).

2 Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 11 (1964).

3 George Weaver, The Precedential Value of Unpublished Judicial Opinions, 39 Mercer L. Rev. 477, (1988).

4 Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 33 (1972). See supra note 1.

5 Lauren K. Robel, The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals, 87 Mich. L. Rev. 940 (1989).

6 See supra note 1, 547-549.

7 The Honorable Boyce Martin, Jr., In Defense of Unpublished Opinions, 60 Ohio St. L.J. 177, 190 (1999), "I would estimate that my clerks and I spend about half as much time working on the average unpublished decision… . I will spend less than half as much time researching a typical unpublished opinion as I spend on a published opinion." See Weaver, supra at 479. See R. Posner, The Federal Courts, 124-26 (1985): Opinions identified for nonpublication are often drafted by central staff rather than by judges or even judges' own clerks.

8 The Honorable Boyce Martin, Jr., In Defense of Unpublished Opinions, 60 Ohio St. L.J. 177, (1999).

9 See supra note 5.

10 See Martin, supra at 193.

11 See RAP 10.4(h).

12 Id. at 193-194.

13 Richard Reuben, New Cites for Sore Eyes, 80-JUN A.B.A. J. 22, (1994).

14 Id.

15 Something which is common knowledge to any computer-savvy researcher who must wade through unpublished decisions to find precedent. See Shuldberg, supra at 566.

16 See supra, note 8, at 197.

17 See Shuldberg, supra at 563, "Barring citation does not prevent the use of unpublished opinions; it merely alters the character of that use."

18 See supra, note 5, at 953.

19 No. 91-1757, 1992 U.S. App. Lexis 25719 (4th Cir. Oct. 5, 1992) (cited in Shuldberg, supra at 563-564; See Reuben supra at 22.

20 See supra, notes 1 and 10.

21 Supra.

22 See supra, note 7.

23 See Martin, supra.

24 Some allow publication by a majority vote of the judges, others allow a single judge to require publication, and some allow others to move for publication.

25 See Robel, supra at 954.

26 5th Cir. R. 47.5.3 (cited in Shuldberg, supra note 1).

27 5th Cir. R. 47.5.3; 5th Cir. R. 47.5.4 (cited in Shuldberg, supra note 1).

28 4 F.3d 350, 355 (5th Cir. 1993), rev'd and remanded, 44 F.3d 334 (5th Cir. 1995) (en banc) (cited in Shuldberg, supra note 1).

29 Id.

30 9 F.3d 344, 346 (5th Cir. 1993) (cited in Shuldberg, supra note 1).

31 See supra note 1 (quoting James W. Paulsen & Gregory S. Coleman, Civil Procedure, 26 Tex. L. Rev. 397, 441 (1995)).

32 Morisoli v. Sykora, 1998 WL 765105 (Wn. App. Div. 3).

33 Frank v. Fischer, 46 Wn. App. 133, 730 P.2d 70 (1986), aff'd, 108 Wash.2d 468, 739 P.2d 1145 (1987), quoting RCW 18.27.140; See Laws of 1973, 1st Ex.Sess., ch. 161, sec. 2.

 34 Hinton v. Johnson, 87 Wn. App. 670, 674, 942 P.2d 1061 (1997), rev denied 134 Wn.2d 1022 (1998), "Hinton argues that this exemption applies only to an owner who contracts with 'a [single] registered contractor,' and thus it does not apply to Johnson because he hired several registered contractors. We disagree with Hinton's construction of the statutory language." See also, Eron Berg, Are Contractors Who Work for Owners Exempt from Registration and Notification Under the CRA?, unpublished manuscript (1999).

35 See Shuldberg, supra at 555, "…many scholars have examined sample groups of unpublished opinions and have noted numerous instances of unpublished opinions that in fact did make law."

36 See supra, note 1.

37 Richard A. Posner, The Federal Courts: Crisis and Reform viii, 120-27 at 123 (1987) (cited in Shuldberg, supra note 1).

38 Supra.

39 Westlaw was utilized for this study.

40 See, Geoffrey Crooks, Discretionary Review of Trial Court Decision Under the Washington Rules of Appellate Procedure, 61 Wash. L. Rev. 1541 (1986).

41 1969 ex.s. c 221 sec. 4.

42 Laws 1971, ch. 41 sec. 1, removing "All opinions of the court shall be published" and adding "All decisions of the court having precedential value shall be published as opinions of the court. Each panel shall determine whether a decision of the court has sufficient precedential value to be published as an opinion of the court. Decisions determined not to have precedential value shall not be published."

43 RCW 2.06.040, "The court shall sit in panels of three judges and decisions shall be rendered by not less than a majority of the panel. In the determination of causes all decisions of the court shall be given in writing and the grounds of the decisions shall be stated. All decisions of the court having precedential value shall be published as opinions of the court. Each panel shall determine whether a decision of the court has sufficient precedential value to be published as an opinion of the court. Decisions determined not to have precedential value shall not be published…."

44 State v. Fitzpatrick, 5 Wn. App. 661, 491 P.2d 262, (Div. II 1971), rev. denied, (1972).

45 Id. at 668.

46 Id. at 668.

47 Id. at 668.

48 Id. at 669.

49 Id. at 669.

50 Wash. R. App. P. 12.3(d), "Publication of Opinions—Court of Appeals. A majority of the panel issuing an opinion will determine if it will be printed in the Washington Appellate Reports pursuant to RCW 2.06.040 or be filed for public record only. In determining whether the opinion will be published in the Washington Appellate Reports, the panel will use at least the following criteria: (1) whether the decision determines an unsettled or new question of law or constitutional principle; (2) whether the decision modifies, clarifies or reverses an established principle of law; (3) whether a decision if of general public interest or importance or (4) whether a case is in conflict with a prior opinion of the Court of Appeals."

51 Wash. R. App. P. 12.3(e).

52 Id.

53 Wash. R. App. P. 17.2(a)(6).

54 Wash. R. App. P. 13.4(a).

55 Id. at 3.

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