“Unpublished” or “Noncitable” Opinions

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Eugene Volokh |

This issue arose in the Adams v. Gulley thread (“California Judge Orders Removal of Reddit Criticism of Scientist/Consultant Who Publicly Criticized English Lucy Letby Murder Trial”), but I’ve also seen confusion about it in other places as well, so I thought I’d write briefly about it.

In federal appellate courts and many state appellate courts, many court opinions are labeled “unpublished” or “not for publication.” This essentially means that they are not binding precedent, and are not to be published in the official reporters where binding precedent is published. The opinions are often “published” in the lay sense of the term: They are made public on pay services like Westlaw and Lexis, and on many free sites, generally including the sites of the very courts that label them “unpublished.” Indeed, some are published in print volumes (such as the Federal Appendix, where federal appellate unpublished decisions are printed).

There is no legal prohibition on writing about them, quoting them, or reproducing them online or elsewhere. They are just not binding precedent.

Now some courts, such as the California Court of Appeal, go further and make the opinions noncitable even as persuasive precedent. California Rule of Court 8.1115(a), for instance, provides that

an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.

There are exceptions; for instance, “[a]n unpublished opinion may be cited or relied on” when it’s “relevant under the doctrines of law of the case, res judicata, or collateral estoppel.” Those doctrines have to do with factual or legal conclusions set forth in that case with regard to the particular details of the case—for instance, that a criminal defendant was found guilty (res judicata), that a plaintiff lost the case (also res judicata), that the court found a particular fact against a party (collateral estoppel), and so on.

Thus, generally speaking, future lawsuits involving one or both parties to the case can rely on those specific factual or legal conclusions from the unpublished opinion. But the legal reasoning in those opinions can’t be cited as precedent—either binding or persuasive—in cases involving third parties. (I oversimplify here.)

But this is limited to citation by courts and parties to actions—i.e., litigants in court. It doesn’t purport to bind people outside court. There is no legal prohibition on writing about the cases, quoting them, reproducing them, or discussing their reasoning or their factual or legal conclusions outside litigation in California courts.

Indeed, sometimes courts in other jurisdictions, such as federal courts, rely on unpublished California cases as persuasive precedent, or more broadly as evidence of how California law operates. The California Rules of Court don’t bind other courts, and certainly not people outside court.

Likewise, people who are quoting such unpublished cases continue to enjoy the fair report privilege in any libel lawsuits, invasion of privacy lawsuits, and other such lawsuits brought based on such quotation. Cal. Civ. Code § 47(d)(1), for instance, expressly makes privileged (with exceptions not relevant here) any “fair and true report in … a public journal, of … a judicial … proceeding, or … of anything said in the course thereof.” A judge’s statement in an unpublished opinion remains something “said in the course” of “a judicial … proceeding,” and quoting it is thus as protected as is quoting a published opinion.

So we all remain free to quote what is said in such “unpublished” opinions, and indeed to publish them in the lay sense of the word. And we all remain free to cite them in our publications, even when they are supposedly “noncitable.” The rules control only whether and when they can be cited in court as binding precedent (or, in California and some other jurisdictions, even as persuasive precedent).

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