H-3808.1          _______________________________________________

                             HOUSE JOINT MEMORIAL 4038

                  _______________________________________________

State of Washington              54th Legislature             1996 Regular Session

By Representative Buck

Read first time 01/24/96.  Referred to Committee on Law & Justice.

Memorializing to the Washington Supreme Court on unpublished opinions.

     TO THE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE WASHINGTON STATE SUPREME COURT:

     We, your Memorialists, the Senate and House of Representatives of the State of Washington, in legislative session assembled, respectfully represent and petition as follows:

     WHEREAS, The appellate courts of this state issue opinions which do not merit official publication because they have little if any precedential value to the development of the law in this state; and

     WHEREAS, A court's determination that certain opinions should not be published should be honored by not allowing subsequent litigants to use unpublished opinions in arguing for interpretations of the law; and

     WHEREAS, Law firms with large numbers of attorneys are more likely than small firms and individual citizens to have the resources and capacity to become aware of and to access particular unpublished court decisions; and

     WHEREAS, Lay people and attorneys in firms with  small numbers of attorneys are disadvantaged because of their inability to locate and use unpublished court opinions; and

     WHEREAS, Citizens have a fundamental right to have a reasonable opportunity to find the law applicable to them, including court decisions which will be used in interpreting the law; and

     WHEREAS, Other states have successfully dealt with the inequity inherent in allowing unpublished decisions to be used as precedent by limiting the use of such decisions;

     NOW, THEREFORE, Your Memorialists respectfully pray that the Supreme Court pursuant to General Rule 9 on Supreme Court Rulemaking Procedure proceed speedily with the adoption of a court rule applicable to all the courts in this state substantially similar to the following:

     (a) An opinion that is not ordered published shall not be cited or relied on by a court or a party in any other action or proceeding except as provided in subsection (b).

     (b) An opinion that is not ordered published may be cited or relied on when:

     (1) The opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or

     (2) The opinion is relevant to a criminal or disciplinary action or proceeding because it states reasons for a decision affecting the same defendant in another such action or proceeding.

     (c) A copy of any opinion which is cited under subsection (b) shall be furnished to the court and all parties by attaching it to the document in which it is cited, or, if the citation is to be made orally, within a reasonable time in advance of citation.

     BE IT RESOLVED, That certified copies of this Memorial be immediately transmitted by the Chief Clerk of the House of Representatives to the Chief Justice and Associate Justices of the Washington State Supreme Court.

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