Unpublished Washington Opinions are Washington legal case decisions that are not published in the Washington Appeals Reports. Most legal decisions in Washington go unpublished, making unpublished opinions a great source of persuasive authority. For many years, litigants and attorneys in Washington state have been confused about whether and when they can cite opinions from unpublished cases to state courts. This article seeks to resolve the confusion.
1. Source of confusion and anxiety. The confusion stems from a Washington rule at the appellate level that prohibits the subpoena of unpublished opinions at the appeal level to the Washington state courts at the appellate level. The Washington courts interpreted this appellate rule differently. Some courts held that the litigants Never cites unpublished Washington opinions in any Washington state proceeding, including trials; other courts held that litigants could cite unpublished Washington cases of all kinds in all non-appeal proceedings, such as trials. The divergence in holdings caused the litigants considerable uncertainty and anxiety.
In late 2007 and early 2008, anxiety rose to perhaps its highest point. In September 2007, General Rule 14.1 prohibited the subpoena of unpublished opinions at the appellate level to any court in the state, including trial courts. However, the 2008 Washington Supreme Court case Oltman v. Holland America, 163 Wn.2d 236 confirmed the subpoena of a litigant of unpublished opinions to a lower court. The rule of thumb and the Supreme Court tried to address the same problem, but gave seemingly contradictory guidance.
two. Current rules that resolve confusion and anxiety. Fortunately, the 2007 general rule and the 2008 Supreme Court decision are quite simple to harmonize. The 2008 Supreme Court upheld the law applied specifically from the period before the 2007 general rule. Therefore, the 2007 general rule is highly likely to govern places where there might otherwise be a conflict. The 2007 general rule and subsequent case law provide us with the following cohesive principles:
TO. No subpoena of unpublished opinions at the Washington appellate level. First, General Rule 14.1 (a) expressly prohibits parties from citing an unpublished opinion at the Washington appellate level in a Washington proceeding. The official editors’ comments confirm that this general rule prohibits the subpoenaing of appellate cases in Washington to any court in Washington, including trial courts.
B. It’s okay to cite unpublished opinions from other courts in Washington. There appears to be no prohibition in Washington against subpoenaing unpublished opinions from other courts in Washington, such as Washington State Superior Courts and District Courts. The drafters’ notes to General Rule 14.1 corroborate this assumption, as does the assertion of Oltman v. Holland America.
vs. You can cite unpublished foreign cases if you could cite them in the foreign jurisdiction. Unpublished opinions from jurisdictions outside of Washington may be cited in Washington courts to the same extent that they may be cited in the jurisdiction from which they originate. As stated in Washington General Rule 14.1 (b), a litigant citing an unpublished foreign case must file and serve copies of the foreign case so that the judge and other litigants can read the case in advance.
These three principles can be a bit tricky. But at least lawyers and litigants can ultimately determine with relative certainty what unpublished opinions the parties can and cannot subpoena to a trial judge.
