Citing Unpublished Orders on Appeal

The last post covered a brief’s Table of Authorities and proper citation form. This one addresses whether one may cite unpublished opinions.

The South Carolina rule prohibits citing unpublished orders except in proceedings in which they are directly involved. Rule 268(d)(2), SCACR. The Supreme Court and Court of Appeals reminds readers of this prohibition by placing a prominent warning on their unpublished opinions against citing the opinion except as provided in the rule.

But the Supreme Court is free to modify its rules. In one case, the Court cited its unpublished opinion in an unrelated case for its persuasiveness. Toth v. Square D Co., 298 S.C. 6, 10, 377 S.E.2d 584, 586-587 (1989).

A different rule may also apply to unpublished trial court orders.

Years ago, the United State Supreme Court held that federal courts, sitting in diversity, need not abide by rulings from the South Carolina  Court of Common Pleas. King v. Order of United Commercial Travelers of America, 333 U.S. 153 (1948). The Supreme Court noted that the Chief Justice of the South Carolina Supreme Court certified that such trial court orders only bind the parties in the particular case and are not precedent in any other case in that Court or in any other court in South Carolina.

The South Carolina Court of Appeals has since stated in dicta that a party may present trial-court orders to a trial judge as if they were memoranda of law. The trial judge may not expressly rely on such orders as authority, but may give them whatever persuasive effect that they may have. Higgins v. Medical University of South Carolina, 326 S.C. 592, 600, 486 S.E.2d 269, 273 (Ct.App. 1997).

The South Carolina Supreme Court has also relied on unpublished state trial court orders from trial courts outside South Carolina. Cole v. Boy Scouts of America, 397 S.C. 247, 253 n. 2, 725 S.E.2d 476, 479 n. 2 (2012).

Federal courts addressed this by adopting Rule 32.1, FRAP. It provides that a court may not prohibit or restrict citing federal judicial opinions or other written dispositions — even if designated as “unpublished” or the like — if the disposition issued on or after January 1, 2007. The proposed rule was controversial, and the January 2007 cut-off date was an apparent compromise. See Anne Coyle, A Modest Reform:  The New Rule 32.1 Permitting Citation to Unpublished Opinions in the Federal Courts of Appeals, 72 Fordham L. Rev. 2471 (2004)(describing the competing policy arguments). The various federal circuits treat pre-2007 cases differently, with some continuing their blanket prohibition on citing pre-2007 unpublished opinions.

Cherry PickingRule 32.1, FRAP, makes sense for federal court orders which are equally available to all parties. If unpublished rulings are equally available, there is little harm for the Court to review the opinions and give the unpublished opinions whatever weight, if any, that the court believes that the opinion deserves.

But South Carolina trial court opinions are not equally avaialble to everyone, at least not yet. So frequent litigants, who face recurring legal issues, may cherry-pick which orders to cite.  The United States Suipreme Court echoed this practical problem, noting that for every unpublished South Carolina trial court opinion cited by counsel there may be a dozen adverse decisions outstanding but undiscovered.  King, 333 U.S. at 161-162.

Has anyone else been frustrated by being unable to cite unpublished orders? Or frustreated for having the face an unpublished order not knowing whether any other unpublished orders favor you?  Please let me hear from you. You may reach me at www.attorneyroberthill.com.

 

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