Rules on citing unpublished opinions

Author: LegalEase Solutions

RESEARCH FINDINGS

Diana S. v. Arizona Dep’t of Econ. Sec., 1 CA-JV 08-0124, 2009 WL 250941 (Ariz. Ct. App. Feb. 3, 2009)

This decision is a memorandum decision and it is stated in this case that, THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R.Crim. P. 31.24.

Arizona Rules on unpublished opinions and precedential authority

Pursuant to Ariz. R. Supreme Court 111(a) (2) and ARCAP 28(a)(2), a memorandum decision is a written disposition of a matter not intended for publication.  Ariz. R. Supreme Court 111 (c) and ARCAP 28(c) contain same language. These rules Dispositions as Precedent states that “Memorandum decisions shall not be regarded as precedent nor cited in any court except for (1) the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case or (2) informing the appellate court of other memorandum decisions so that the court can decide whether to issue a published opinion, grant a motion for reconsideration, or grant a petition for review. Any party citing a memorandum decision pursuant to this rule must attach a copy of it to the motion or petition in which such decision is cited.”

The United States Supreme Court had adopted a uniform rule applicable to all federal appellate courts.  See Fed. R. App. P. 32.1 (2007).  FRAP 32.1 gives unpublished decisions precedential effect.

FRAP 32.1 (a) permits citation of unpublished opinions.  It states that “a court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:

(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and

(ii) issued on or after January 1, 2007.

The adoption of this uniform federal rule was in affirmation of several circuits’ adoption of more permissive citation rules.  Most federal appellate courts and the few other state courts have lifted the general ban on citing unpublished decisions.  However, it seems that Arizona courts prohibit the citation of unpublished decisions under and citing unpublished opinions stands disfavored.  In Arizona, citation to unpublished or memorandum decisions has been generally prohibited pursuant to Arizona Supreme Court Rules 111 and ARCAP28 except permitted in limited circumstances.  Further the following case laws also point to the fact that unpublished opinions cannot be cited.

“[A]RCAP 28(c) makes it improper to cite unpublished decisions as authority. See First Interstate Bank v. State Dep’t of Revenue, 185 Ariz. 433, 437, 916 P.2d 1149, 1153 (App.1995) (“Because [the cited case] is an unpublished decision, it is improper to cite it as authority, and we decline to consider it.”), abrogated on other grounds by Rogers Corp. v. State Dep’t of Revenue, 187 Ariz. 157, 158 n. 1, 927 P.2d 817, 818 n. 1 (App.1996); Time, D.C. Freight Lines v. Industrial Comm’n, 148 Ariz. 117, 118 n. 1, 713 P.2d 318, 319 n. 1 (App.1985) (stating that although a memorandum decision the administrative law judge had relied on was directly on point, it was not to be regarded as precedent or cited); Asarco, Inc. v. Industrial Comm’n, 122 Ariz. 241, 244, 594 P.2d 107, 110 (App.1979) (citing State Bar of Arizona Ethics Opinion No. 78-4 (Jan. 30, 1978)), superseded by statute on other grounds as stated in Aguiar v. Industrial Comm’n, 165 Ariz. 172, 175, 797 P.2d 711, 714 (App.1990).  In Kriz v. Buckeye Petroleum Co., 145 Ariz. 374, 377 n. 3, 701 P.2d 1182, 1185 n. 3 (1985), the supreme court declined to consider a memorandum decision of the District Court of the District of Arizona. The court rejected the argument that the decision could be considered pursuant to both ARCAP 28(c) and Rule 201 of the Arizona Rules of Evidence (which allows “judicial notice of adjudicative facts”),Walden Books Co. v. Dep’t of Revenue, 198 Ariz. 584, 589, 12 P.3d 809, 814 (Ct. App. 2000).

Court of Appeals would not take judicial notice of unpublished decisions of the Court of Appeals and Supreme Court regarding statutory attorney fees awards to taxpayers, though the parties’ citations to the decisions informed the Court of Appeals of conflicts that arguably raised the need for a published opinion, where the parties were using the unpublished opinions mainly as support for the merits of their respective positions. Sw. Airlines Co. v. Arizona Dep’t of Revenue, 197 Ariz. 475, 4 P.3d 1018 (Ct. App. 2000).

Some attorneys and bar associations who supports citation of unpublished opinions argues that they could at least be permitted to be cited for persuasive value only, and thus could be treated similarly to any other non-precedential authority, such as a decision issued by a non-Arizona court or a law review article and may require a copy of the decision be produced with the brief.

Here in this case, pursuant to the rules this citation may not be used and in this case no such circumstances exist in which it is permitted for limited purposes. However, removing that citation would not in any way affect the sentence meaningless. It can be used without the citation as given below because it is referring to a statute and its substance.

“ Under ARS § 8–514(B) (2007), the legislature has clarified that placement with family, where possible, is preferred over placement with non-family “consistent with the needs of the child.”