February 15, 2011
There is No Constitutional Right to Cite Unpublished Opinions
The federal courts liberalized their rules several years ago by allowing citation to unpublished opinions released after January 1, 2007. Opinions prior to that date are still un-citable in the federal courts. The states, on the other hand, still have rules that bar citation when an opinion is designated as unpublished. California's rule to this effect is challenged from time to time. The latest failed attempt comes via an unpublished opinion from the Northern District of California issued at the end of January.
The case is Lifschitz v. George. Attorney Eric Lifschitz brought this suit on First Amendment and Due Process grounds, alleging that the rules bar him and other attorneys from petitioning the government by denying the use of unpublished opinions. The District Court ruled that the First Amendment allegations are sufficient enough to get past the standing requirement of alleging an injury. However, that is about the best Lifschitz gets from the Court.
The Judge rejected the prior restraint and right to petition the governments arguments as she notes that there is nothing in the rule preventing counsel from arguing the ideas and concepts contained in unpublished opinions. Counsel simply may not cite them as authority or precedent under the rule. Moreover, the California Supreme Court has the authority to organize its precedent in an orderly fashion by deciding which decisions are precedential and which are not.
The violation of due process was alleged by citing the rule allowing the petition to the California courts for a change in publication status as too burdensome. The rule requires a petitioner to ask the court to publish the opinion within 20 days after it is filed. That time frame, it is alleged, is too short a time to determine whether the case would be a valuable precedent in future litigation. California argued that there is no constitutional right to cite unpublished opinions. The Court agreed, stating further that even if the right existed, the 20 period for determining publication status was reasonable. The case was dismissed with prejudice. Download the Lifschitz Case (10-02107). [MG]