WSR 15-15-131

RULES OF COURT

[July 16, 2015]

The Rules Committee, having recommended the Proposed Amendments to GR 14.1—Citation to Unpublished Opinions, Proposed Amendment to RAP 13.4(b)—Considerations Governing Acceptance of Review, and the Court having considered the amendments and comments submitted thereto;

Now, therefore, it is hereby

(a) That pursuant to the provision of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the court's websites in January 2016.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2016. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 16th day of July, 2015.

(A) Name of Proponent: Washington Supreme Court and Washington Court of Appeals.

(B) Spokesperson: Honorable Michael S. Spearman, Chief Judge, Washington Court of Appeals, Division I.

(C) Purpose: The Washington Supreme Court and the Washington Court of Appeals propose amendments to two court rules, GR 14.1 and RAP 13.4. The proponents suggest amending GR 14.1(a) to allow parties to cite unpublished opinions of the Court of Appeals as non-binding authority, to add new subsection GR 14.1(c) stating that Washington appellate courts should not cite or discuss unpublished opinions unless necessary for a reasoned decision, and to add new subsection GR 14.1(d) requiring that a party citing an unpublished opinion include a copy of the opinion as an appendix to the pleading in which the opinion is cited.

The proponents also suggest amending RAP 13.4 (b)(2), to state that a conflict with an opinion of the Court of Appeals is grounds for acceptance of a discretionary petition for review by the Supreme Court only if the conflict is with a published opinion of the Court of Appeals.

1) GR 14.1. A workgroup of the Court of Appeals researched and studied this issue for four years before these suggested rule changes were filed. The workgroup gathered information from Washington attorneys, trial court judges, and judges of the Court of Appeals on the use being made of unpublished opinions by the legal community, sought comment from these stakeholders on whether or not a change in the rules regarding citation should be proposed, and solicited information on what effect such a rule change would have on work processes. The workgroup found there to be significant support in the state's legal community for a rule change. These suggested amendments are the result of that workgroup's efforts.

When RCW 2.06.040 was enacted in 1969, it stated that all opinions of the Court of Appeals were to be published. The statute was amended in 1971 to allow the Court of Appeals to designate opinions as either published or unpublished. In 1971, unpublished opinions were available only in paper, and were not easily researched or available, unlike published opinions. However, the internet and electronic databases have now made all opinions, whether published or unpublished, widely available, both on the court's website and on legal research sites. While some legal research websites are available only by paid subscription, other websites are publicly accessible.

Because of this widespread and easy availability, lawyers, trial court judges, and appellate judges read and make use of the reasoning in unpublished opinions, even though the cases themselves cannot be cited. Allowing these cases to be cited by the parties will bring greater transparency to the legal process, by clearly stating the source of the legal reasoning that is being considered by the parties and the courts, even if that case is only relied upon for its persuasive value.

This change in the rule will also bring greater consistency to the use of unpublished opinions by parties and trial courts. Parties will no longer need to guess whether or not a court is familiar with, and according some weight to, the decision in a relevant unpublished opinion.

Several other jurisdictions allow parties to cite unpublished opinions for precedential or persuasive purposes. For example, Utah allows parties to cite unpublished decisions of its Court of Appeals issued on or after October 1, 1998, for precedential value. Utah R. App. P. 30(f). Wisconsin allows citation of unpublished "authored" opinions issued on or after July 1, 2009, for persuasive value. Wis. Stat. § 809.23 (3)(b) (2015). Virginia permits citation of unpublished opinion as informative, but not as binding authority. VA Sup. Ct. Rules, Rule 5:1(f) and Rule 5A:1(f).

In federal court, parties are permitted to cite to unpublished federal opinions issued after January 1, 2007. There is no restriction on how the opinions may be used as authority. Fed.R.App.P. 32.1. The federal rule change permitting citation to unpublished federal opinions in the federal courts was effective December 1, 2006, and has not been revised since it was adopted.

The suggested rule change states that unpublished opinions may be cited as non-binding authority, only. An opinion is unpublished because a panel of the Court of Appeals has decided that the opinion does not have value as precedent. Treating unpublished opinions as non-binding authority is consistent with the determination of the panel authoring the opinion that it is not precedential.

The suggested new subsection, GR 14(c), is meant to minimize the risk for unpublished opinions to attain precedential status by means of citation in appellate court opinions. The new rule would provide that appellate courts should not cite or discuss unpublished opinions in their opinions, unless necessary for a reasoned decision.

Suggested new GR 14.1(d) requires parties citing to an unpublished opinion to include a copy of the opinion as an appendix to the pleading. This change ensures that all parties and the courts will have immediate access to the opinion.

2) RAP 13.4(b). This rule sets out the circumstances under which a petition for review will be accepted by the Supreme Court. The suggested change to subsection (b)(2) makes clear that acceptance of review is only mandatory when the decision of the Court of Appeals is in conflict with a published decision of the Court of Appeals.

(D) Hearing: None recommended.

(E) Expedited Consideration: Expedited consideration is not requested.

(a) Washington Court of Appeals. A party may not cite as an authority an unpublished opinion of the Court of Appeals. Unpublished opinions of the Court of Appeals are those opinions not published in the Washington Appellate Reports. Unpublished opinions of the Court of Appeals have no precedential value and are not binding upon any court. However, unpublished opinions of the Court of Appeals may be cited as non-binding authorities, if identified as such by the citing party, and may be accorded such persuasive value as the court deems appropriate.

(b) Other Jurisdictions. A party may cite as an authority an opinion designated "unpublished," "not for publication," "non-precedential," "not precedent," or the like that has been issued by any court from a jurisdiction other than Washington state, only if citation to that opinion is permitted under the law of the jurisdiction of the issuing court. The party citing the opinion shall file and serve a copy of the opinion with the brief or other paper in which the opinion is cited.

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(2) If the decision of the Court of Appeals is in conflict with another a published decision of the Court of Appeals; or

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