Still More Ways to Mention Unpublished Appellate Opinions

Timothy Kowal, Esq.
  •  
January 26, 2021

After hitting publish on my recent piece suggesting some ways you might bring unpublished opinions to the court's attention, I remembered another example I blogged about in October:

 A recent (published) decision out of the First Appellate District [People v. Am. Surety Co. (Cal. Ct. App. - Oct. 1, 2020) D1d2 case no. A157154] upheld the validity of a bail bond even though it was for the wrong amount. The bond company, American Surety Co., had relied on a published 1919 Court of Appeal holding for its position. But the Court rejected that holding, stating: "In the course of our research we encountered—but cannot mention by name—a number of unpublished Court of Appeal decisions rejecting American’s argument and distinguishing [the 1919 Court of Appeal opinion]."

It occurs to me that if you are really anxious to get the court to notice a certain unpublished opinion, you might hazard something like:

“While Rule 8.1115 prohibits us from naming unpublished decisions, following the First Appellate District’s example in People v. Am. Sur. Co. (2020) 55 Cal.App.5th 265, 269, we simply note a recent opinion of the ____ District is responsive to this question.”

And then proceed to crib from the case, which will leave a breadcrumb trail the court can follow, if it is so inclined.

Take caution: This is still technically a violation of Rule 8.1115. But if you’re just following the Court of Appeal’s example it might give you some cover.

Also, appellate attorney Paul Alarcon recounted this creative way a court got around Rule 8.1115:

This probably falls under category one, but I recently read an opinion in which the court justified a discussion of an unpublished California appellate decision by explaining that it had been analyzed by a district court order and so the court was merely citing the district court discussion of the un-citable case.

I thought this ingenious, and wondered whether some public-spirited district court judge might do us all a favor sometime and incorporate by reference into a ruling all unpublished California opinions.

Attorney Cory Webster suggests the Judicial Council amend Rule 8.1115 to follow the Ninth Circuit model:

The rule leads to bizarre situations where an appellate panel cannot cite its own prior decision on a question of state law, yet it can cite a federal trial court decision on the same question of state law. The rule should be abandoned in favor of something like what the Ninth Circuit does with mem dispos—you can cite them, but they’re not precedent.

That rule would be an improvement, I think, but still shoots wide of the mark. My own view of the real problem with rule 8.1115 is that it permits the courts to operate in a separate, parallel juridical universe. The practice of deciding cases via uncitable cases is a simulacrum of a normal system of judicial lawmaking, not quite within the norms of the rule of law. Normal judicial lawmaking is still lawmaking, but only to the extent it operates within legal doctrines and reasoning that are binding on itself and lower courts. When a court of appeal's application of doctrine and reasoning is made not binding – either upon other courts or even upon itself – and is not reviewable (except under the state Supreme Court's extremely limited criteria), it is little different than private judging. It becomes part of a subterranean body of law that the bar and the public may not gainsay. The legitimacy of private judging is aided at least by the parties' agreement. I cannot think of any factor that mitigates this defect in a system of nonprecedential appellate decisions.

The practical effect of the current rule is to give cover to judicial mischief. As Howard Bashman recounted:

"The most sinister and inappropriate use of an unpublished opinion must also be considered. Sometimes, it must be admitted, applying existing law to the facts of an appeal would produce a result that it is difficult to describe as "justice" in the context of a given case. In such circumstances, it may be difficult for appellate judges, as human beings, to avoid the temptation of using an unpublished opinion as a method of arriving at a just resolution of the current case while being able to disregard that result in the future as a one-off outcome having no binding effect on future cases. I wish I were inventing this possible use of an unpublished opinion, but I have heard appellate judges admit to it themselves to explain why an appeal might result in an unpublished opinion instead of a published opinion."

Howard J. Bashman, The Recurring Problem of Unpublished Opinions and What to Do About It?, ABA Council of Appellate Lawyers, Appellate Issues, Fall 2017, at 23.

For these reasons, I respectfully dissent from the practice of issuing uncitable, unpublished decisions. Feel free to cite me on that.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.