Colorado Appellate Rule (C.A.R.) 35(f ) provides that “
The Colorado Court of Appeals, on the other hand, has a pol icy specifically prohibiting the citation and distribution of unpublished opinions. Pursuant to this policy, “citation of unpublished opinions is forbidden,” with minor exceptions. The policy provides that unpublished opinions “are provided for private use and are not to be included in an electronic database or otherwise published.” The majority of the opinions issued by the Colorado Court of Appeals are unpublished,4 and unpublished opinions are not made available on the court’s website. <>pThere is a healthy debate regarding whether opinions can and should be designated non-precedential.5 Setting aside this question, there simply is no good reason for refusing to allow parties to cite unpublished decisions for whatever persuasive value they may hold.
A Policy Steeped in Irony
The court of appeals’ policy results in two ironies. First, the court prohibits citation of its own unpublished decisions, but no Colorado lawyer is prohibited from citing unpublished decisions from other states or countries. In the words of Hon. Samuel Alito: [I]t is difficult to justify a system that permits parties to bring to a court’s attention virtually every written or spoken word in existence except those contained in the court’s own “unpublished” opinions.
This sentiment eventually resulted in a significant amendment to the federal appellate rules. In December 2006, the U.S. Supreme Court amended the federal appellate rules to prohibit appellate courts from banning the citation of non-precedential opinions.9 Lawyers in federal appellate courts may now cite to unpublished opinions of federal appellate courts for whatever persuasive value the opinions may hold.
Second, the court of appeals’ policy means that lawyers in a common law system are prohibited from informing the court of the vast majority of its own past decisions. As the late Judge Richard Arnold observed with respect to a similar policy in the Eighth Circuit, the court of appeals is essentially saying to the Bar: “We may have decided this question the opposite way yesterday, but this does not bind us today, and what’s more, you cannot even tell us what we did yesterday.”
Constructive Uses of Unpublished Opinions
In her counterpoint article, Andra Zeppelin argues in favor of the no-citation rule based in part on the argument that unpublished opinions, by their very nature, hold no value in helping to decide future cases, and therefore nothing is lost by banning citation to them. This position is belied by the Colorado Court of Appeals’ own system, which, in the words of a former Reporter of Decisions, “guarantees that even the unpublished . . . opinions are carefully reasoned.” 11 Unpublished decisions are reviewed and approved by the three-judge panel assigned to the case, and subsequently are distributed for review to the rest of the court of appeals. Moreover, a significant number of judges find unpublished decisions useful. In a 2004 Federal Judicial Center study, 44 percent of judges in the federal circuit courts of appeal who allowed citation said they found citations to unpublished decisions helpful “occasionally,” “often,” or “very often.”13 The same study found that practicing attorneys research unpublished decisions, even when they cannot cite to them, and that attorneys frequently find unpublished decisions that would aid their cases. Notably, the Colorado Court of Appeals has explicitly allowed citation to other courts’ unpublished opinions for their persuasive value. Embracing the Digital Age The court’s no-citation policy is a solution to a problem of an earlier time, when the lack of accessibility to unpublished opinions created potential unfairness within the Bar, with large law firms and government counsel potentially having better access to hard copies of decisions than small law firms and sole practitioners. For example, New Mexico Appellate Rule 12-405(C) states that because unpublished decisions are “unreported and not uniformly available to all parties, [they] shall not be . . . cited as precedent in any court.”
Now, more than a decade into the electronic age, the problem of accessibility is a thing of the past. Placing unpublished decisions on the court’s website in a searchable form would be a relatively inexpensive undertaking and a better alternative to a no-citation policy. Many state courts have taken a step in this direction, construing their no-citation rules or policies to mean that although unpublished opinions are not precedent, they still may be cited for their persuasive value.
Assessing the Risks
Our counterpoint colleague suggests that it harms the judiciary to make available a body of nonbinding opinions whose reasoning may be incorporated into other decisions. However, this risk already exists, because we are free to cite to persuasive authority from other jurisdictions. In any case, our state’s appellate judges can be trusted to evaluate for themselves whether a particular unpublished opinion should be accorded any persuasive value. Not all unpublished opinions, after all, are created equal (an observation, incidentally, that is equally true of published decisions). As University of Denver Law Professor K.K. DuVivier has pointed out, “some of the unpublished opinions contain lengthy explanations of the court’s analysis.” Opinions that are so poorly reasoned as to be truly dangerous are also presumably insufficient to resolve individual disputes as a matter of procedural justice. One would hope that few or none of these exist.
Moreover, prohibiting lawyers from citing unpublished decisions may give rise to the temptation, in a difficult case, to decide the case in a results-oriented manner and sweep the difficulties under the unpublished rug. We’re not suggesting this has ever happened in our appellate court—particularly given the court of appeals’ practice of circulating unpublished decisions to a majority of the court. However, as Judge Arnold warned, “a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings.”
An Appeal to Logic
There is an inescapable tension between an incremental, common law system based on precedent and the practical demand for efficiency created by an exploding caseload. The logical accommodation of these competing interests is to adopt the federal model: allow the court to designate some opinions as non-precedential, but allow practitioners to cite to those opinions when they deem them helpful to their case. The Colorado Court of Appeals’ nocitation policy should be reversed.
Peter Krumholz is a partner, and Aaron Solomon is an Associate, in the Denver law firm of Hale Westfall, LLP. Krumholz is a civil litigator and a former assistant U.S. attorney. Solomon’s practice encompasses both commercial litigation, appellate, and public policy.