What Is a “Not Selected for Publication” Case?
In our legal system, judicial decisions are an important source of law. And for that reason, one critical component of a case citation is where to find the case. For a long time, that meant the volume and page number of a case reporter, but in recent decades most of us find cases online, without actually pulling out the physical books.
However, courts often issue decision which are unpublished. Pursuant to C.A.R. 35(f), such cases must carry a notation on the title page stating: “Not published pursuant to C.A.R. 35(e)”. They lack the traditional citation for a very good reason – they are considered binding only on the parties to the specific case it just decided, instead of on future courts.
And since such a case is not binding precedent, the theory goes that there is no need for the rest of us to be able to find it, or to cite it in such a way that others can cite it. So the case does not have the traditional case citation telling us where it can be found. Given that most cases are not published, this article points out the craziness of being prohibited from telling an appellate court how the majority of similar issues have been decided.
Standard for Publishing a Case
The Colorado Appellate Rules, C.A.R. 35(e) provides the following guidance to determine whether the court will publish a case:
“No court of appeals opinion shall be designated for official publication unless it satisfies one or more of the following standards:
(1) the opinion establishes a new rule of law, or alters or modifies an existing rule, or applies an established rule to a novel fact situation;
(2) the opinion involves a legal issue of continuing public interest;
(3) the majority opinion, dissent, or special concurrence directs attention to the shortcomings of existing common law or inadequacies in statutes; or
(4) the opinion resolves an apparent conflict of authority.”
Citing an Unpublished Case
In a (published) decision, the Colorado Court of Appeals recognized that even unpublished cases have some value to lawyers and courts alike – at least to trial courts. Patterson.1Patterson v James, 2018 COA 173. The Patterson court considered a case where the trial court considered an unpublished case cited by one of the litigants. On appeal, the other party argued that was improper, and violated Court of Appeals policy.
While published cases are binding on lower courts, the Court recognized that the Colorado Supreme Court instructs that an unpublished case has “no value as precedent.” However, the Patterson court interpreted this to simply prohibit citing unpublished decisions in briefs to the appellate courts:
“C.A.R. 35(f) does not prohibit parties from citing an unpublished decision in a trial court, and the court of appeals’s policy merely addresses the use of unpublished opinions in briefs filed with, and in arguments presented to the court of appeals. Consequently, the trial court did not err when it considered the unpublished decision for whatever persuasive value it may have had.”Patterson.2Patterson v James, 2018 COA 173, ¶ 40.
While a trial court cannot treat published decision as binding precedent, an unpublished decision is not invisible. Instead, as with decisions from other states, or a law review article, the trial judge has discretion to treat the opinion as persuasive, or to ignore it completely:
“That being said, we do not mean to suggest that a trial court must consider such decisions at all. We simply acknowledge that unpublished does not mean confidential, and that our unpublished opinions are routinely shared among, for example, certain practice groups and specialty bars. As a result, it is not uncommon for trial courts to be asked to consider such an opinion. Because C.A.R. 35(e) does not endow unpublished opinions with precedential weight, however, a trial court remains free to disregard them entirely if it so chooses.”Patterson.3Patterson v James, 2018 COA 173, ¶ 41.
A lawyer is expected to know the law, and that means published cases, so lawyers have no obligation to seek out unpublished cases. ¶ 42. But if we do find these unpublished gems, we can use that advantage by citing them in our trial briefs.
How to Find Unpublished Cases
So cases not selected for publication are still useful, but the problem is they are not easy-to-find – after all, they are unpublished!. All published cases from the Colorado Court of Appeals are provided on the court’s web site, but unpublished cases are not, and must be requested manually.
Even for lawyers, it’s difficult – per Court of Appeals policy, unpublished decisions are not available in the legal databases we use for legal research. So when we receive a copy, it may feel like we’re swapping bootlegs – we get them from an attorney involved in the case, or we go through the hassle of requesting it from the court. (And special thanks to Denver appellate attorney Sharlene Aitken who takes the time to dig up unpublished family law cases and share them with the family law bar).
We store on this site copies of all cases referenced in this blog, in the Colorado Family Law Guide, and the Military Divorce Guide. So clicking on the hyperlink in the case name will pull up the PDF of the case, whether it is published or not.
PRACTICE TIP: Since an unpublished case cannot be easily found, if you cite one you should provide a copy fo the court and other party.
Why do Published Cases Matter?
Most of the United States, including Colorado, has inherited the common law system from England, where the way courts have interpreted cases is binding for future cases. It is even enshrined in our law. C.R.S. 2-4-211 provides:
“The common law of England so far as the same is applicable and of a general nature, and all acts and statutes of the British parliament, made in aid of or to supply the defects of the common law prior to the fourth year of James the First, excepting the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth, and the ninth chapter of thirty-seventh Henry the Eighth, and which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.”
So when the Colorado Supreme Court issues a decision, the “holding” is binding on trial courts and the Courts of Appeal. When the Colorado Court of Appeals issues a decision, it is binding on trial courts only. The Supreme Court, and other Court of Appeals panels may consider a decision persuasive, but they are not obligated to follow it (which means, on occasion, we end up with conflicting authority out of the Courts of Appeal).