Proposed Rule Regarding Unpublished Decisions

July 6, 2006

Given my earlier rants regarding the use of unpublished opinions, I thought it only fair to post the new proposed amendments to CR 76.28(4)(c). This rule previously prohibited unpublished opinions from being “cited or used as authority in any other case of any court of this state.” The proposed amendments to section (4)(c) still prohibits unpublished opinions from being “cited or used as binding precedent in any other case in any court of this state”; however, it allows unpublished opinions rendered after January 1, 2003, to be cited for “consideration by the Court.” These opinions must be set out as unpublished in the filed document and a copy of the entire decision attached.

I am not sure what relevance January 1, 2003, has except that by then most if not all unpublished opinions were being provided by electronic resources and the internet. The new rule still withholds authority from these decisions, rendering them useful only for their persuasive value. While the amendment is certainly an improvement over the current rule, there is nothing to prohibit the courts from ignoring unpublished decisions with the same legal or factual issues. I think that it is this inconsistency that will continue to fuel criticism of this rule.

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