December 2000

The Uncertain Status
of Unpublished Opinions

by John Borger & Chad Oldfather

"one could argue that Judge Arnold's analysis . . . applies with equal force to the Minnesota courts."

In 1964 the Judicial Conference of the United States resolved: "That the judges of the courts of appeals and the district courts authorize the publication of only those opinions which are of general precedential value and that opinions authorized to be published be succinct."1 Thirty-six years later, the federal courts of appeals have arrived at the point where roughly three-quarters of their opinions are unpublished.2 In similar fashion, the Minnesota Court of Appeals issues unpublished opinions in roughly 70 percent of its civil cases, and 85 percent of its criminal cases.3 Most appellate courts have rules providing, to varying degrees, that unpublished opinions may not be cited as binding precedent.

Scholars and judges have debated the merits of courts' increasing reliance on the device.4 For the most part this discussion has concerned the relative practical advantages of unpublished opinions, primarily whether the resulting conservation of judicial resources outweighs the perceived negative effects on the legal system and litigants within it. Whatever their arguments, the participants in the debate generally have assumed that the courts have the authority to engage in the practice.

That assumption no longer can be an easy one. On August 22, a three-judge panel of the United States Court of Appeals for the 8th Circuit declared, in Anastasoff v. United States,5 that the practice of regarding unpublished opinions as nonprecedential violates Article III of the United States Constitution. In so doing the court invalidated its own Rule 28A(i), which established a general rule that "[u]npublished opinions are not precedent and parties generally should not cite them."
The case arose out of Faye Anastasoff's claim for a refund of overpaid federal income taxes. She had mailed her refund claim within the three-year limitation period, but it was received and filed a day after the period expired. She argued that a statutory "mailbox rule" applied to save her claim. In so doing, Ms. Anastasoff made no attempt to distinguish an earlier 8th Circuit decision to the contrary, asserting instead that because the prior decision was unpublished it was not binding precedent and simply could be disregarded.

Judge Richard Arnold, joined by senior judge Gerald Heaney and Minnesota district chief judge Paul Magnuson (sitting by designation), began the court's analysis by observing, "Inherent in every judicial decision is a declaration and interpretation of a general principle or rule of law. This declaration of law is authoritative to the extent necessary for the decision, and must be applied in subsequent cases to similarly situated parties."6 From there he embarked on an originalist journey, invoking authorities as venerable as Coke, Blackstone, and 6 The Federalist in support of the proposition that, to the Framers of the Constitution, "[t]he duty of courts to follow their prior decisions was understood to derive from the nature of the judicial power itself and to separate it from a dangerous union with the legislative power."7
Having reached this conclusion, the court held "that 8th Circuit Rule 28A(i), insofar as it would allow us to avoid the precedential effect of our prior decisions, purports to expand the judicial power beyond the bounds of Article III, and is therefore unconstitutional. That rule does not, therefore, free us from our duty to follow" the prior unpublished decision.

Judge Arnold is rumored to have been waiting many years for the right case in which to write this opinion, and it certainly reads as the product of considerable thought. Indeed, Anastasoff follows almost seamlessly from an earlier article in which Judge Arnold chronicled his uneasiness with courts' increasing reliance on unpublished opinions to deal with the demands of rapidly growing caseloads.8 With the time savings, he explained, come certain hazards. Among these are incomplete analysis and the temptation to use unpublished opinions to dispose of cases in which strict adherence to the law would lead to a result the judge would prefer to avoid.9

The final section of the Anastasoff opinion returns to the prudential concerns raised in Judge Arnold's article. The court emphasized that its ruling did not impact "whether opinions ought to be published, but whether they ought to have precedential effect, whether published or not." The court also emphatically rejected arguments that administrative burdens require courts to produce decisions that are meaningless except in the context of a single case. Judge Arnold wrote:

We do not have time to do a decent enough job, the argument runs, when put in plain language, to justify treating every opinion as a precedent. If this is true, the judicial system is indeed in serious trouble, but the remedy is not to create an underground body of law good for one place and time only. The remedy, instead, is to create enough judgeships to handle the volume, or, if that is not practical, for each judge to take enough time to do a competent job with each case. If this means that backlogs will grow, the price must still be paid. At bottom, rules like our Rule 28A(i) assert that courts have the following power: to choose for themselves, from among all the cases they decide, those that they will follow in the future, and those that they need not. … As we have tried to explain in this opinion, such a statement exceeds the judicial power, which is based on reason, not fiat.10

John P. Borger is a partner with the appellate practice group at Faegre & Benson LLP in Minneapolis. He is a graduate of Michigan State University and received his J.D. degree from Yale Law School.

Chad M. Oldfather practices in Faegre & Benson's general litigation group, concentrating in the area of appellate practice. He is a graduate of Harvard College and of the University of Virginia Law School.

Anastasoff binds only courts within the 8th Circuit, but its reasoning calls into question every federal district or circuit rule that purports to relegate some decisions to nonprecedential status. Opposing viewpoints surfaced quickly. One observer remarked that Anastasoff "imposes a view of Article III quite unexampled in the law of any other circuit."11 In an article published three months before the decision, Judges Kozinski and Reinhardt of the 9th Circuit rejected the assertion that by its nature a judicial decision, without more, results in precedent. Instead, they argued, to say that an opinion sets precedent "suggests that the three judges on a panel subscribe not merely to the result but also to the phrasing of the disposition."12 Judge Boggs of the 6th Circuit suggests that Judges Arnold, Kozinski, and Reinhardt all misunderstand the nature of precedent, particularly the crucial distinction between typical common-law cases involving application of a general rule to a particular set of facts (as to which he believes Judge Arnold to be correct), and cases involving the higher-order problem of selecting the appropriate rule (where not merely the fact of the decision, but the intention of the judges in reaching it, is significant, such that an intent not to create precedent can be valid).13 Others have advanced the somewhat different position that stare decisis is a rule of policy rather than law, and as such could be abrogated by statute.14

The opinion leaves a number of practical questions, including its implications for the disposition of cases by summary order, a practice allowed in many circuits, including the 8th. If the nature of judicial power requires that prior decisions must be followed, it might be argued that any exercise of judicial power must be accompanied by a written justification. If that is so, opinions might generally become shorter and less detailed. If not, Anastasoff may lead to an increase in the use of summary dispositions. The result in either case would be decisions that, although technically precedential, would have little practical value as precedent. Such a result would be contrary to the stated aims of Anastasoff.

Similarly unclear are the implications of Anastasoff's reasoning for state courts. In Minnesota, the court of appeals is required, both by its own rules and by statute, to issue unpublished opinions in all but a limited subset of its cases.15 These same provisions state unequivocally that unpublished opinions are not binding precedent. However, they may be cited in briefs and can carry persuasive value.16

Yet Article 6, Section 1 of the Minnesota Constitution establishes the judicial power in terms remarkably similar to Article III of the United States Constitution, with the only differences suggesting a broader judicial power at the state level.17 Thus one could argue that Judge Arnold's analysis in Anastasoff applies with equal force to the Minnesota courts. The Minnesota Supreme Court has consistently held that the Legislature cannot encroach upon judicial territory,18 so the statutory provisions may create no barrier to reaching this conclusion. Further, because state courts are more often involved in the sort of general, common-law decision making identified by Judge Boggs, the argument against nonprecedential decisions may be more compelling as applied to the Minnesota courts.

Whatever the future of its holding,19 and whatever its practical effects, Judge Arnold's opinion stands as a challenge to all courts to accept accountability for every decision they make rather than to resign themselves to a pessimistic view that they are grinding out decisions like sausage, with no responsibility for the consistency or longevity of their reasoning.

1. Judicial Conference of the United States, Reports of the Proceedings of the Judicial Conference of the United States 11 (1964).
2. Administrative Office of the United States Courts, 1998 Judicial Business of the United States Courts Table S-3 (1999).
3. Based on statistics compiled by Professor Peter Knapp of the William Mitchell College of Law.
4. See, e.g., Hon. Boyce F. Martin, Jr., "In Defense of Unpublished Opinions," 60 Ohio St. L.J. 177 (1999); Martha J. Dragich, "Will the Federal Courts of Appeals Perish if They Publish? Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat?" 44 Am. U. L. Rev. 757 (1995); Robert J. Martineau, "Restrictions on Publication and Citation of Judicial Opinions: A Reassessment," 28 U. Mich. J.L. Reform 119 (1995).
5. 223 F.3d 898 (8th Cir. 2000).
6. Id. at 899-900 (citing Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 177-78, 2 L.Ed. 60 (1803)).
7. Id. at 903.
8. Richard S. Arnold, "Unpublished Opinions: A Comment," 1 J. App. Prac. & Process 219 (1999).
9. Id. at 223.
10. 223 F.3d at 904.
11. Jerome I. Braun, "Eighth Circuit Intensifies Debate Over Publication and Citation of Unpublished Opinions," 84 Judicature 90 (2000).
12. Alex Kozinski & Stephen Reinhardt, "Please Don't Cite This! Why We Don't Allow Citation to Unpublished Opinions," Cal. Lawyer, June 2000, at 43.
13. See generally Danny J. Boggs & Brian P. Brooks, "Unpublished Opinions & the Nature of Precedent," 4 Green Bag 2d 17 (2000). See also Charles J. Cooper, "Stare Decisis: Precedent and Principle in Constitutional Adjudication," 73 Cornell L. Rev. 401, 405 (1988) (noting that "much of the rationale underlying the operation of the doctrine of stare decisis in the common law context is simply inapplicable in the statutory or written law context" because in the common law the decisions of the court are the law, rather than interpretations of the law).
14. See Michael Stokes Paulsen, "Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?" 109 Yale L.J. 1535 (2000).
15. See Special Rules of Practice for the Minnesota Court of Appeals 4; Minn. Stat. ¤ 480A.08, Subd. 3.
16. See Dynamic Air, Inc. v. Block, 502 N.W.2d 796, 800 (Minn. App. 1993).
17. See In re Appeal of O'Rourke, 300 Minn. 158, 162 n.4, 220 N.W.2d 811, 814 n.4 (1974).
18. See id.; Lading v. City of Duluth, 153 Minn. 464, 190 N.W. 981 (1922). See also 3 Eric J. Magnuson & David F. Herr, Minnesota Practice ¤ 101.4 (1996) (suggesting that "the appellate courts alone have the power to determine when and how they will exercise their jurisdiction").
19. At the time of this writing, a petition for en banc review of Anastasoff was pending before the 8th Circuit. Review by the United States Supreme Court seems a distinct possibility after that. See Tony Mauro, "Unpublished Opinions May Gain New Impact Due to Landmark Federal Appeals Panel Decision," law.com, September 25, 2000 (quoting Harvard Professor Laurence Tribe).