GR 14.1 - Citation to Unpublished OpinionsComments for GR 14.1 must be received no later than April 30, 2007.
Suggested Amendment to General Rules (GR) - New Rule 14.1
concerning Citation to Unpublished Opinions
Submitted by the Board of Governors of the Washington State Bar Association
Purpose: This suggested new General Rule would, in all Washington Courts, (1) maintain the existing prohibition on citation to unpublished opinions of the Washington Court of Appeals (see RAP 10.4(h)); (2) allow citation to unpublished opinions issued by any court from a jurisdiction other than Washington State, but only if citation to that opinion is permitted under the law of the jurisdiction of the issuing court; and (3) require the party citing an unpublished opinion to file and serve a copy of it.
Concurrent suggested amendments to RAP 10.4(h), CR 10, RALJ 7.3(c), and CRLJ 10 will implement the new rule by referring parties in all cases to GR 14.1 as the sole rule governing citation to unpublished decisions.
This amendment is intended to resolve confusion at two fundamental levels. First, although RAP 10.4(h) clearly prohibits citation of unpublished opinions of the Court of Appeals, there is no similar prohibition for unpublished opinions issued by a court from a jurisdiction other than Washington State.1 In the absence of a clear rule, the Divisions of the Court of Appeals have taken differing approaches to the issue of whether parties may cite non-Washington unpublished decisions. See Mendez v. Palm Harbor Homes, Inc., 111 Wn. App. 446, 472-73, 45 P.3d 594 (2002) (Division III) (citation to unpublished opinions of other jurisdictions is “inappropriate”); Lindsay v. Pacific Topsoils, Inc., 118 Wn. App. 1037, 2003 WL 22121055, at *19 (2003) (Division I) (“This division has not ruled on the matter of citing unpublished opinions from out of state, and we see no need to do so now.”); Starypan v. Metropolitan Park Dist. of Tacoma, 105 Wn. App. 1025, 2001 WL 285827, at *3 n.3 (2001) (Division II) (under Washington law unpublished opinions from other jurisdictions have no precedential value). Without resolving the issue of whether parties may cite to unpublished federal opinions, the Washington Supreme Court has both embraced and rejected such opinions. Compare Weyerhaeuser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 678, 15 P.3d 115 (2000) (citing unpublished federal district court decisions as persuasive) with Washington Banker’s Associations v. Washington Mutual Savings Bank, 92 Wn.2d 453, 462-63, 598 P.2d 719 (1979) (noting that unpublished federal decision cited by party had no precedential value). These inconsistencies highlight the importance of enacting a clarifying rule, because parties often seek sanctions for an opposing party’s citation to unpublished opinions. See, e.g., Mendez, 111 Wn. App. at 472-73.
Second, the rules addressing the citation to unpublished decisions currently apply only in appellate proceedings. RAP 10.4(h); RALJ 7.3(c). Parties in other types of proceedings,
This proposal resolves these issues by establishing a clear rule in a new GR 14.1, which will apply to all Washington State court proceedings. The proposal has three basic components:
The suggested rule both borrows and differs from new Federal Rule of Appellate Procedure 32.1, which was approved by the U.S. Supreme Court in April 2006 and will take effect on December 1, 2006 (unless Congress enacts legislation to reject, modify, or defer it). The new federal rule will allow parties to cite unpublished federal decisions issued after 2006, but the rule does not address the citation of unpublished decisions from non-federal courts. The Washington proposal uses the language from the federal rule to describe the various synonyms for “opinion” and “unpublished.” And, like the federal rule, the Washington proposal requires parties to file and serve a copy of each cited, unpublished opinion (though the suggested Washington rule requires filing and service even if the opinion is available in an electronic database). Unlike Fed. R. App. P. 32.1, which permits citation of federal unpublished opinions in the federal courts, the Washington rule would retain the longstanding prohibition on citation of unpublished opinions of the Washington Court of Appeals in Washington courts. Assuming the federal rule goes into effect, new GR 14.1 will allow litigants in Washington courts to cite post-2006 unpublished federal decisions.
1 Only RALJ 7.3(c), in effect since September 1, 2005, and applicable only to review of decisions of courts of limited jurisdiction, addresses this issue directly by barring citation to any opinion of “any other state or federal court that is not published.”
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