Suit Challenges Judicial Prohibition of Citing Unpublished Precedents
Howard Bashman wrote at Law.com last week about a federal case challenging, on federal Due Process grounds, a California state appellate court rule prohibiting citation to unpublished judicial opinions.
In the federal suit, the plaintiff alleges harm on two theories: first, that unpublished opinions are less likely than published opinions to attract the interest of higher courts wielding discretion over which cases they hear, and second, that the rule against citing unpublished decisions precluded him from citing favorable unpublished precedents.
The lawsuit arose from a tort suit in which the state appellate court rejected a master-servant liability theory in an unpublished opinion, reversing a $700,000 judgment for a plaintiff who lost his eyesight to a paintball fired by an on-duty utility company employee.
The appellate court ruled that the accident was "a prank or joke with children near [the employee's] work site . . . . [that] had nothing to do with her job duties," and that the company was therefore not liable.
Bashman notes that "California state courts presumably allow citation to judicial decisions from other states . . . other countries, and even to literary works . . . . A rule that prevents citing to the issuing jurisdiction's own opinions in relevant earlier cases merely because those decisions have been designated as unpublished could be viewed not only as a First Amendment violation, but also as . . . violative of due process." About one-third of federal appellate-court decisions issued in 2002 were unpublished.