When is an appellate decision not precedent?

When is an opinion of an appellate court not precedent? The answer to that question largely depends on the jurisdiction.

In a recent opinion, the North Carolina Supreme Court brought forth another related question: when can the highest appellate court of a jurisdiction decide that an intermediate appellate court's decision is not precedent? The answer to that question also varies from jurisdiction to jurisdiction.

For many years the issue of how to treat "unpublished" opinions--are they precedential or not?--has bounced around in various appellate courts. Before the internet age, unpublished opinions truly were unpublished. After all, the opinions did not appear in the printed reporters and were only available if one went to a clerk's office and asked for a copy. Back then, no one really was citing an unpublished opinion in a brief unless it was for some kind of res judicata purpose--mainly because no one even knew what the opinions said.

At some point, these so-called unpublished opinions began appearing on appellate court websites. And eventually they ended up on Westlaw and Lexis. You can hardly call them unpublished now--not many people reach for a reporter when searching for case law anymore. At most, they may--depending on the jurisdiction--still be considered non-precedential.

After much criticism and at least one opinion declaring unconstitutional the practice of considering opinions denominated unpublished as non-precedential, the Federal Rules of Appellate Procedure were amended in 2006 to provide that courts could not prohibit parties from citing unpublished opinions. See Fed. R. App. P. 32.1(a); Anastasoff v. United States, 223 F.3d 898, 901 (8th Cir.), vacated as moot, 235 F.3d 1054 (2000). Even so, the new rule does not tell the courts that unpublished opinions must be considered as precedent or otherwise how to utilize them. See Elizabeth Earle Beske, Rethinking the Nonprecedential Opinion, 65 UCLA L. Rev. 808, 810 (2018).

States also have various rules concerning unpublished opinions. In North Carolina, for instance, a rule provides that the North Carolina Court of Appeals need not publish an opinion if the panel deciding the case believes that "the appeal involves no new legal principles and that an opinion, if published, would have no value as a precedent[.]" N.C. R. App. P. 30(e). The rule further provides that an unpublished opinion "does not constitute controlling authority" and that citation to unpublished decisions is "disfavored." Id. Nevertheless, the rule does permit citation of an unpublished opinion "[i]f a party believes . . . an unpublished opinion has precedential value to a material issue in the case" and there are no published opinions "that would serve as well[.]" Id.

Additionally, some states provide that their supreme court gets the final word on what opinions of the state's intermediate appellate court are published. In California, the California Supreme Court can "depublish" a decision of the California Court of Appeals. Cal. Rules of Court, Rule 8.1125. In Kentucky, the Kentucky Supreme Court decides which opinions of the Kentucky Court of Appeals are published. Ky. Rev. Stat. § 21A.070.

In a recent decision of the North Carolina Supreme Court, the court decided per curiam that discretionary review of a published North Carolina Court of Appeals decision was "improvidently allowed." Mole' v. City of Durham, No. 394PA21, 2023 N.C. LEXIS 274 (Apr. 6, 2023). The court did not issue a merits opinion. That in and of itself is not unusual. But the court's decision also provided that the court of appeals decision, while "left undisturbed," would stand "without precedential value."

A two-justice concurrence in Mole' stated that "unpublishing" the court of appeals decision was nothing new. Indeed, the court had routinely ruled that decisions of the court of appeals were left undisturbed but without precedential value.

Two dissenting justices in Mole' contended that the high court had in the past left decisions of the court of appeals undisturbed but without precedential value only when at least one of the court's seven justices was recused and the vote of the remaining justices were either equally divided or consisted of a majority of justices not equal to at least four.

The average person, of course, will not find this the least bit interesting. But for those of us appellate types, it does lead to some interesting questions that eventually will have to be answered.

First, is this so-called unpublishing a good idea? Some of the criticism of California's rule allowing for "depublishing" is that it reduces transparency and accountability, permitting the higher court to do away with precedent it does not like without specifying its reasons in writing. See Philip L. Dubois, The Negative Side of Judicial Decisions Making: Depublication as a Tool of Judicial Power and Administration on State Courts of Last Resort, 33 Vill. L. Rev. 469, 476-78 (1988). The concurring justices in Mole', on the other hand, believed the result was better than having a fractured and confusing decision from their court.

Should there even be non-precedential opinions of an appellate court? Some of the original reasons for having unpublished opinions, still noted for example in the North Carolina rule, were the cost of publication and need to provide storage space. See N.C. R. App. P. 30(e). Whether those remain concerns or not, some courts and commentators believe there are constitutional problems related to not treating all appellate court decisions as precedent. See Johanna S. Schiavoni, Who's Afraid of Precedent?: The Debate Over the Precedential Value of Unpublished Opinions, 49 UCLA L. Rev. 1859 (2002).

The bottom line is that the days of unpublished opinions being unavailable for citation are long gone. More and more states eventually will have to come to terms with how to treat these opinions (or whether to even have them) and whether any published case should ever be stripped of its precedential value if not reversed by a higher court.