Section Review

Lawyers may now cite unpublished Appeals Court decisions for their persuasive value

While preparing an appellate brief, have you ever researched Massachusetts case law and found a decision that would support your position, only to realize that it is an unpublished opinion issued pursuant to Rule 1:28? Until recently, the long-standing policy of the Massachusetts Appeals Court prevented practitioners from citing unpublished decisions in their appellate briefs. However, in Chace v. Curran, 71 Mass. App. Ct. 258, appeal denied, 451 Mass. 1103 (2008), the Appeals Court modified its policy so that practitioners may now cite Rule 1:28 summary decisions issued after Feb. 25, 2008 (the date of the Chace opinion) for persuasive value, but not as binding precedent. The Appeals Court’s departure from its longstanding policy aligns Massachusetts with several states and the federal judiciary in allowing the citation of unpublished decisions in appellate briefs. The new policy will benefit appellate practitioners and parties by allowing them to draw the panel’s attention to an unpublished opinion which is analogous to their own situation.

The history of Rule 1:28

When the Appeals Court was created in 1972 as an intermediate appellate court, it consisted of six judges1 and every decision of the court was published. As the number of appeals increased (doubling from 439 appeals in the 1974 court year to 876 appeals in the 1975 session2), so too did the burden on the court and the pressure to decide appeals in a timely manner. To address this increasing number of appeals, the Appeals Court adopted Rule 1:28 in 1975. The Supreme Judicial Court approved Rule 1:28 pursuant to its authority under Mass. Gen. Laws ch. 211A, § 13, which allows the Appeals Court to adopt rules regulating its practices and procedures, subject to the approval of the SJC.

Rule 1:28 established a summary disposition procedure which permitted the Appeals Court to expeditiously dispose of civil appeals without oral argument and without filing a detailed written opinion, so long as the appeal presented no substantial question of law.3 In a 1976 decision, the SJC explained and affirmed the appropriateness of the Appeals Court’s summary disposition procedure in the face of objections from both the Massachusetts Bar Association and the Boston Bar Association concerning the propriety of affirming trial court decisions without oral argument. See Sabatinelli v. Travelers Ins. Co., 369 Mass. 674 (1976).

Since 1975, Rule 1:28 has been amended three times. The first amendment in 1978 authorized the use of Rule 1:28 to reverse or modify, rather than just affirm, trial court decisions in civil cases. The 1978 amendment also expanded the scope of cases appropriate for summary disposition by authorizing its use not only where there is no substantial question of law presented, but also where “some clear error of law has been committed which has injuriously affected the substantial rights of an appellant.”4 These changes increased the Appeals Court’s efficiency as a greater number of civil cases could be resolved through the Rule 1:28 summary disposition procedure.5

The next two amendments, in 1980 and 1998 respectively, broadened the reach of Rule 1:28 to include criminal appeals.6 The 1980 amendment authorized the court to dispose of criminal cases summarily in unpublished opinions, however not without first allowing oral argument. The 1998 amendment eliminated the need for oral argument in criminal cases, thus allowing the court to treat civil and criminal appeals equally.

In its present form, Mass. R. App. P. 1:28 provides:

At any time following the filing of the appendix (or the filing of the original record) and the briefs of the parties on any appeal in accordance with the applicable provisions of Rules 14(b), 18 and 19 of the Massachusetts Rules of Appellate Procedure, a panel of the justices of this court may determine that no substantial question of law is presented by the appeal or that some clear error of law has been committed which has injuriously affected the substantial rights of an appellant and may, by its written order, affirm, modify or reverse the action of the court below. The panel need not provide an opportunity for oral argument before disposing of cases under this rule. Any order entered under this rule shall be subject to the provisions of Rules 27 and 27.1 of the Massachusetts Rules of Appellate Procedure.

Rule 1:28 decisions are generally less detailed — ranging from one sentence to a few paragraphs or pages — because they are authored for the direct benefit of the parties rather than for public consumption. The purpose of Rule 1:28 continues to be the disposition of appeals that do not contain novel issues of law by way of a short memorandum or decision, thus allowing judges to devote greater time and energy to cases that pose more difficult legal questions.

Prior policy against citing unpublished decisions

In a 1985 decision, the Appeals Court established the policy that its unpublished decisions were not to be relied upon or cited as authority in unrelated cases. See Lyons v. Labor Relations Commn., 19 Mass. App. Ct. 562, 566 n.7 (1985). The court’s reasoning at the time included: (1) summary decisions may not fully disclose case facts or the panel’s rationale for the decision; (2) unlike published opinions, the entire court did not consider summary decisions;7 and (3) the practice of permitting the citation of unpublished decisions as precedent in unrelated cases had not been adopted by several federal circuit courts.8 See id. The Lyons decision effectively banned practitioners from citing unpublished opinions in their appellate arguments, even where an unpublished opinion was on point. Over the next two decades, on numerous occasions, the Appeals Court acknowledged this policy in discussing certain appellate arguments that cited an unpublished decision as the supporting authority.9

Citation of unpublished decisions permissible as of Feb. 25, 2008

The Appeals Court modified its longstanding prohibition against citing unpublished decisions in footnote 4 of Chace v. Curran, 71 Mass. App. Ct. 258, rev. denied, 451 Mass. 1103 (2008). In doing so, the Appeals Court noted that Rule 1:28 decisions “have become far more widely available and now routinely appear in the results of electronic research.” This fact provided “[the] opportunity to announce a modification of the prohibition set out in Lyons.” Id. at 260, n.4. Although the Appeals Court acknowledged the continued existence of many circumstances that supported the old policy, the court determined that any issues raised by these circumstances could be dealt with effectively by allowing citation of the decisions for their persuasive value only. Id. What does this mean? Binding precedent is “[a] precedent that the court must follow,” while persuasive precedent is “[a] precedent that a court may either follow or reject, but that is entitled to respect and careful consideration.” 10 The Appeals Court will now carefully consider such unpublished decisions issued on or after Feb. 25, 2008, but has discretion about whether to follow the analysis of those opinions. A practitioner citing Rule 1:28 decisions must include the full text of the decision in the addendum to his or her brief.

Differences between published and unpublished decisions

There are three differences between the Appeals Court’s published and unpublished opinions: the manner in which they are reviewed and edited by the court, their availability as a research tool to practitioners, and, until now, the court’s policy prohibiting the citation of its unpublished decisions in appellate briefs.

1. Review and edit procedures

After the filing of briefs, every appeal is screened for a determination as to whether the case requires oral argument and is assigned to a panel of three judges. Those cases that do not require oral argument are decided by the panel solely on the briefs and the record appendix. For both argument and non-argument cases, one judge of the panel is randomly assigned to write the decision for the appeal. After reviewing the submitted material (and hearing oral argument where one is scheduled), the panel will discuss the case and agree on the result, the reasoning and whether the decision should be published.

If, in their deliberations, the panel determines that the appeal presents no substantial question of law, then the panel may decide to issue an unpublished decision pursuant to Rule 1:28. The judge assigned to author the decision will prepare a draft 1:28 memorandum and circulate it to the other two panel members for comments and approval. The draft memorandum then continues through the court’s internal editing process, in which a law clerk, staff attorney, staff editor and secretary assist the authoring judge in polishing it. The final decision is entitled “Memorandum and Order pursuant to Rule 1:28,” and is not signed by the authoring judge. The decision is mailed to the parties, and the reporter of decisions publishes a daily list of cases decided under Rule 1:28; the list includes the name of each case, the Appeals Court docket number and the actual disposition (e.g., “judgment affirmed” or “judgment vacated”), but not the text of the decision.

By contrast, if the panel determines after deliberation that there is a reason to publish the decision, then it goes through a full-court review process. After the authoring judge circulates the draft opinion to the panel members and it is approved by them, the authoring judge circulates the draft opinion to each member of the court for review and comment.11 The panel addresses the comments and suggestions of its colleagues before forwarding the draft through the court’s internal editing process, as described above. Published opinions identify the author and are sent to the Office of the Reporter of Decisions to be prepared for publication with head notes, tables of cases, and indexes. The final opinion is published in the official bound volumes of the Massachusetts Appeals Court Reports and online at Office of Reporter of Decisions, www.massreports.com. The Appeals Court does not send copies of the decision to the parties, but rather gives them telephonic notice on the morning that the decision issues. For a two-week period of time, slip opinions for all published opinions can be downloaded free of charge from Office of Reporter of Decisions, www.massreports.com.

2. Access to published and unpublished decisions

Published opinions may be found in various print and online search engines, including the official version of the Massachusetts Appeals Court Reports and the Northeastern Reporter, as well as the Web sites of the Reporter of Decisions, Lexis, Westlaw, Massachusetts Lawyer’s Weekly and the Massachusetts Bar Association. Unpublished opinions have historically not been as easy to locate. This has been changing, however. Now the public has access to many Rule 1:28 decisions through free online databases, Westlaw, Lexis and the official Reporter of Decisions. As of May 29, 2008, all of the Appeals Court’s Rule 1:28 decisions since Feb. 25, 2008, are posted at Office of Reporter of Decisions, www.massreports.com.

Survey of the national landscape

Appellate courts in numerous states, in addition to Massachusetts, have recently revisited their unpublished citation policies. While it is difficult to obtain data on the policies of individual states (as some states have relevant court rules, while others rely on statutes or case law on the subject), this author compiled data through a combination of Internet research, reviewing rules and statutes and placing telephone calls to the courts in certain states.12 There is no obvious trend. It appears that 30 states, plus the District of Columbia, forbid citation to unpublished opinions in unrelated cases.13 Twenty states, including Massachusetts, allow citation of unpublished opinions either as binding precedent14 or for their persuasive value.15 Five states have conflicting practices.16 Where the trend will go is difficult to predict. For example, in December, 2007, the Arkansas Supreme Court rejected a proposed amendment that would have allowed citation to unpublished opinions as precedent. However, in April, 2008, Hawaii amended its Rules of Appellate Procedure to permit citation for persuasive value (effective July 1, 2008).

While states vary in their approach to this issue, the federal courts clearly allow citation of unpublished decisions. In 2006, the U.S. Supreme Court adopted Rule 32.1 of the Federal Rules of Appellate Procedure, which permits citation of unpublished federal judicial opinions that were issued on or after Jan. 1, 2007. That rule provides, in relevant part, 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 . . .” if those decisions were issued after Jan. 1, 2007. Fed. R. App. P. 32.1. Unless the unpublished opinion is available in a publicly accessible electronic database, the party must file and serve a copy of that opinion on the court and all parties.17 Expanding upon the federal rule, the U.S. Court of Appeals for the First Circuit issued its own local rule, permitting citation to unpublished dispositions of its court regardless of the date of issuance. See 1st Cir. R. 32.1.0.

Conclusion

On the same day that the Appeals Court issued the Chace decision, it submitted a request to the SJC Rules Committee for an amendment to Rule 1:28 or to Appellate Rule 16 (g). The proposed amendment details the official steps to be followed when citing unpublished opinions and requires that copies of those opinions be appended to the addendum of appellate briefs. For now, unpublished decisions from the Appeals Court issued after Feb. 25, 2008, may be cited for persuasive value in appellate briefs filed in the Appeals Court. Whether unpublished decisions can be cited in briefs submitted to the SJC remains to be determined. Practitioners having an opinion on this issue or other appellate issues should express that opinion by contacting the MBA Appellate Court Bench-Bar Committee through the MBA’s Web site.

End notes

1.    Mass. Gen. Laws ch. 211A, § 1 (as inserted by St. 1972, ch. 740, § 1).

2.    Sabatinelli v. Travelers Insurance Co., 369 Mass. 674, 681 (1976).

3.    See also Mass. Gen. Laws ch. 211A, § 9 (as inserted by St. 1972, ch. 740, § 1) which states: “In the determination of causes, all decisions of the appeals court shall be given in writing, except as otherwise provided herein, and the grounds for each decision shall be stated and filed in the cause in which rendered. The court may, in appropriate cases, enter a proper order, direction, judgment or decree for the further disposition of a case without stating the reasons therefore, or may cause a rescript containing a brief statement of the grounds and reasons for the decision, to be filed therein. Opinions and rescripts of the appeals court shall be published by the reporter of decisions.”

4.    Mass. R. App. P. 1:28 (amended 1978).

5.    This same year, in 1978, the Appeals Court expanded to 10 judges. See Mass. Gen. Laws ch. 211A, § 1, amended by St. 1978, ch. 478, § 104.

6.    See Mass. R. App. P. 1:28 (amended 1998).

7.    See Sciaba Constr. Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2, appeal denied, 416 Mass. 1106 (1993) (published
opinions reflect the view of a majority of the Justices).

8.    However, the court also identified other federal circuits that permitted citation of unpublished decisions, even if disfavored or limited to certain circumstances.

9.    See, e.g., Chhoeun Ny v. Metropolitan Property & Cas. Ins. Co., 51 Mass. App. Ct. 471, 475 n.7 (2001); Peabody v. Peabody Police Benev. Assn., 34 Mass. App. Ct. 113, 115 n.5 (1993); Purvis v. Comm’r of Correction, 29 Mass. App. Ct. 190, 192 n.5 (1990). But see Langton v. Comm’r of Correction, 34 Mass. App. Ct. 564, 574-75, appeal denied, 416 Mass. 1101 (1993) (suggesting that unpublished decisions, although not used for precedential value, may be considered for their persuasive value); Putignano v. Treasurer & Receiver Gen., 55 Mass. App. Ct. 828, 829-30 (2002) (courts take note “of their own dockets” and of decisions related “to a subsequent stage of the same controversy”).

10.  Black’s Law Dictionary 1195 (7th ed. 1999).

11.  Pursuant to Mass. Gen. Laws ch. 211A, § 1 and Mass. Gen. Laws ch. 211A, § 16 the court currently consists of twenty five statutory judges (a chief justice and twenty-four associate justices) and several retired appellate justices who have been “recalled” to serve as justices of the Appeals Court.

12.  Karen Breda, Citation of Unpublished Opinions as Precedent in the State Courts, www.aallnet.org/sis/ripssis/TeachIn/2008/BredaStateCourtOpinions.pdf.

13.  Alabama, Arizona, Arkansas, California, Colorado, District of Columbia, Florida, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maine, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Washington, West Virginia, Wisconsin and Wyoming.

14.  States expressly permitting citation as precedent: Delaware, Ohio and Utah.

15.  States with rules or case law that expressly or implicitly permit citation for persuasive value: Alaska, Connecticut, Georgia, Hawaii, Iowa, Kansas, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Tennessee, Texas, Vermont and Virginia.

16.  Florida (unwritten decision from another court may not be cited; party may cite unwritten decisions of the same court, although not precedent, and the court may consider it), Kentucky (unpublished opinions not to be used as binding precedent, but unpublished decisions of the appellate court may be cited for consideration if there is no published opinion on point), North Carolina (citation specifically disfavored, but permitted if no published opinion would serve as well), Oklahoma (may not be cited in unrelated civil cases, but may be cited in criminal cases when no published opinion would serve as well), Texas (may not be cited in criminal cases, but may be cited in civil cases although no precedential value).

17.  See Fed. R. App. P. 32.1, Advisory Committee Notes.

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