Generally, attorneys may not cite to, and courts may not rely upon unpublished opinions. (See for example Cal. Rules of Court §8.1115) Although I can't use them, I read many unpublished opinions because they often cite to useful published opinions that I can use. I've always wondered how it gets decided whether an opinion will be published or not. Obviously, all Supreme Court cases get published, but I'm talking about the intermediate appellate court opinions, which sometimes do or do not get published. In the back of my mind, I've always wondered if perhaps some opinions don't get published because the Court really wanted to reach a particular result but didn't want to create a precedent in the process. There's something a little unnerving about that, though, and I wonder if someone might be able to shed some light on the process behind deciding whether to certify or not certify an opinion for publication.
In Colorado, which is fairly typical, this is governed by Colorado Rule of Appellate Procedure 35(e) which states:
(e) Published Opinions of Court of Appeals. A majority of all of the judges of the court of appeals shall determine which opinions of that court will be designated for official publication. They opinions shall be published in the official publication designated by the supreme court. Opinions designated for official publication must be followed as precedent by all lower court judges in the state of Colorado.
No court of appeals opinion shall be designated for official publication unless it satisfies one or more of the following standards:
(1) the opinion establishes a new rule of law, or alters or modifies an existing rule, or applies an established rule to a novel fact situation;
(2) the opinion involves a legal issue of continuing public interest;
(3) the majority opinion, dissent, or special concurrence directs attention to the shortcomings of existing common law or inadequacies in statutes; or
(4) the opinion resolves an apparent conflict of authority.
In federal practice, each appellate court circuit establishes criteria for publication of appellate opinions as well as criteria indicating whether unpublished decisions may be cited and what precedential value should be accorded them. Generally, publication criteria are found in each circuit’s rules of court. Approximately 35% of Court of Appeals decisions and 20% of U.S. District Court decisions are published. Unpublished cases can sometimes be located on LexisNexis, Westlaw, West’s Federal Appendix or in topical loose-leaf services.
Local Rule 36 of the United States Court of Appeal for the 10th Circuit is typical. It states:
10th Cir. R. 36
36.1 Orders and judgments.
The court does not write opinions in every case. The court may dispose of an appeal or petition without written opinion. Disposition without opinion does not mean that the case is unimportant. It means that the case does not require application of new points of law that would make the decision a valuable precedent.
When the opinion of the district court, an administrative agency, or the Tax Court has been published, this court ordinarily designates its disposition for publication.
Also in federal practice, citation to unpublished opinions is generally allowed pursuant to Federal Rule of Appellate Procedure 32.1 which states:
Rule 32.1 Citing Judicial Dispositions
(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:
(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and
(ii) issued on or after January 1, 2007.
(b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.
The practice of not publishing all court decisions is controversial, although only mildly so in federal practice, after FAP 32.1 was adopted.