GR 14.1 - Citation to Unpublished Opinions

• Proposed New Rule GR 14.1 - Citation to Unpublished Opinions (in Word Format)
• Comments Received for GR 14.1 - Citation to Unpublished Opinions

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This suggested new General Rule would, in all Washington Courts, (1) maintain the existing prohibition on citation to unpublished opinions of the Washington Court of Appeals (see RAP 10.4(h)); (2) allow citation to unpublished opinions issued by any court from a jurisdiction other than Washington State, but only if citation to that opinion is permitted under the law of the jurisdiction of the issuing court; and (3) require the party citing an unpublished opinion to file and serve a copy of it.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CRLJ 10 will implement the new rule by referring parties in all cases to GR 14.1 as the sole rule governing citation to unpublished decisions.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 First, although RAP 10.4(h) clearly prohibits citation of unpublished opinions of the Court of Appeals, there is no similar prohibition for unpublished opinions issued by a court from a jurisdiction other than Washington State.¹ In the absence of a clear rule, the Divisions of the Court of Appeals have taken differing approaches to the issue of whether parties may cite non-Washington unpublished decisions.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 App. 446, 472-73, 45 P.3d 594 (2002) (Division III) (citation to unpublished opinions of other jurisdictions is “inappropriate”); Lindsay v. Pacific Topsoils, Inc., 118 Wn. App. 1037, 2003 WL 22121055, at *19 (2003) (Division I) (“This division has not ruled on the matter of citing unpublished opinions from out of state, and we see no need to do so now.”); Starypan v. Metropolitan Park Dist.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 App. 1025, 2001 WL 285827, at *3 n.3 (2001) (Division II) (under Washington law unpublished opinions from other jurisdictions have no precedential value). Without resolving the issue of whether parties may cite to unpublished federal opinions, the Washington Supreme Court has both embraced and rejected such opinions.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 Co., 142 Wn.2d 654, 678, 15 P.3d 115 (2000) (citing unpublished federal district court decisions as persuasive) with Washington Banker’s Associations v. Washington Mutual Savings Bank, 92 Wn.2d 453, 462-63, 598 P.2d 719 (1979) (noting that unpublished federal decision cited by party had no precedential value).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,
including superior court cases, are therefore uncertain about what rules govern their ability to cite unpublished decision.

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:

1. The suggested rule will maintain the current prohibition on citation to unpublished opinions of the Washington Court of Appeals at present contained in RAP 10.4(h). Among the many reasons behind this long-standing rule is that, by definition, those opinions lack precedential value. See RCW 2.06.040 (“Decisions determined not to have precedential value shall not be published.”); see also RAP 12.3(d) (criteria to consider when determining whether to publish an opinion); State v. Fitzpatrick, 5 Wn. App. 661, 491 P.2d 262 (1971). The rule will continue to apply only to unpublished opinions of the Court of Appeals; it does not apply to citation to opinions or orders of other tribunals, such as orders issued by a superior court or court of limited jurisdiction.

2. This proposal recognizes that other jurisdictions may take a different approach to the issue of citation of unpublished opinions. The suggested rule therefore allows citation to an unpublished opinion of a non-Washington court only if citation to that opinion is permitted under the law of the jurisdiction of the issuing court. This proposal does not prescribe the weight a Washington court must give to an unpublished opinion. Although the proposal says that such an opinion may be cited “as an authority,” a Washington court is free to determine whether the authority is persuasive or not.

3. The suggested rule requires the party citing an unpublished opinion to file and serve a copy of it, even if that opinion might be available on an electronic database. Because different electronic databases employ different formats, this requirement ensures that the parties and the court will literally be able to work from the same page of any unpublished opinion. Furthermore, because many electronic databases charge access fees, the service requirement avoids unfairly prejudicing a party that is unable to afford independent access to a cited unpublished authority.

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.”