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only to realize that it is an unpublished opinion issued pursuant to Rule 1:28?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prevented practitioners from citing unpublished decisions in their appellate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federal judiciary in allowing the citation of unpublished decisions in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parties by allowing them to draw the panel’s attention to an unpublished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
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
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
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
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
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
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
2. Access to published and unpublished
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
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.
On the same day that the Appeals Court issued
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.
Gen. Laws ch. 211A, § 1 (as inserted by St. 1972, ch. 740, § 1).
v. Travelers Insurance Co., 369 Mass. 674, 681 (1976).
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
R. App. P. 1:28 (amended 1978).
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.
Mass. R. App. P. 1:28 (amended 1998).
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).
the court also identified other federal circuits that permitted citation of
unpublished decisions, even if disfavored or limited to certain circumstances.
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
Law Dictionary 1195 (7th ed. 1999).
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.
of Unpublished Opinions as Precedent in the State Courts, www.aallnet.org/sis/ripssis/TeachIn/2008/BredaStateCourtOpinions.pdf.
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.
expressly permitting citation as precedent: Delaware, Ohio and Utah.
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.
(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).
Fed. R. App. P. 32.1, Advisory Committee Notes.