McCoy v. State
| Citation | 80 P.3d 757 |
| Decision Date | 22 November 2002 |
| Docket Number | No. A-7789.,A-7789. |
| Parties | Christopher J. McCOY, Sr., Appellant, v. STATE of Alaska, Appellee. |
| Court | Court of Appeals of Alaska |
Diane L. Foster and Darin B. Goff, Assistant Public Defenders, Kenai, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
OPINION ON STATE'S PETITION FOR REHEARING
The State asks us to reconsider one aspect of our decision in this case: our construction of Appellate Rule 214, which declares that unpublished decisions "may not be cited in the courts of this state".
In our original opinion, McCoy v. State, 80 P.3d 751 (2002), we concluded that Appellate Rule 214 forbids an attorney from arguing that an unpublished decision is "precedent" in the sense that it controls or restricts future judicial decision-making, but we also concluded that Rule 214 does not forbid an attorney from bringing an unpublished decision to a court's attention for whatever persuasive value it might have.1 The State contends that we misconstrued Appellate Rule 214—that when the rule declares that unpublished decisions "may not be cited", it means that attorneys and judges are strictly forbidden from mentioning unpublished decisions when they argue and decide matters in the courts of Alaska.
The basis of the State's request for rehearing
The State bases its argument primarily on two sources: (1) a memorandum written to the Alaska Supreme Court by a former Clerk of the Appellate Courts, Robert D. Bacon, and (2) a memorandum prepared by the court's staff attorney, Andrew M. Hemenway, analyzing the state of the law with respect to unpublished decisions. Both Mr. Bacon's memorandum and Mr. Hemenway's memorandum were written in October 1980, when the supreme court was revising the Alaska Rules of Appellate Procedure and was considering the merits of proposed Appellate Rule 214.
From the content of Mr. Bacon's memorandum, and from the existence of Mr. Hemenway's memorandum, it appears that the supreme court had questions about the practice of issuing unpublished opinions, even though unpublished decisions were allowed under the then-existing rule (former Appellate Rule 26). In his memorandum, Mr. Bacon assured the supreme court that proposed Appellate Rule 214 embodied "the national mainstream" answer to the question of "whether ... unpublished decisions may be cited". Mr. Bacon also sought to assure the supreme court that limiting the citation of unpublished decisions was good policy.
Mr. Bacon argued that a "no citation" rule would benefit the legal community because, if attorneys were allowed to cite unpublished opinions, this practice would favor "the specialist over the generalist, the large law firm over the small, the government agency over those challenging its action, and ... insurance carrier[s] over those seeking to recover from [them]". In other words, Mr. Bacon argued that it would be unfair to allow lawyers to cite unpublished decisions. Mr. Bacon's argument was premised on the assumption that only a relatively few litigators— institutional litigants, large law firms, and others who regularly litigated cases in the appellate courts—would know the contents of the courts' unpublished decisions.
Mr. Bacon also argued that if litigants were allowed to cite unpublished decisions, this would saddle the Appellate Court Clerk's Office with "the added burden of serving as a library and repository of ... unpublished decisions". That is, he assumed that no one (or only a few litigants) would have ready access to the text of unpublished opinions, thus forcing the Clerk's Office to assume the role of a reference source for all the litigants who wanted to obtain copies of unpublished opinions or who wished to search through the court's unpublished opinions in the hope of finding some pertinent material.
All of these assumptions proved to be wrong. As was pointed out in John v. State, 35 P.3d 53 (Alaska App.2001), "copies of [Court of Appeals] memorandum decisions have always [been distributed] to essentially every judge and lawyer who regularly practices criminal law in this state".2 Moreover, "our memorandum decisions are now readily available on the Internet", allowing any lawyer or other interested person to search these opinions and download them.3
Thus, our unpublished decisions have not become an arcane body of law known to only a select few, nor has the Appellate Court Clerk's Office become the depository of semisecret decisions. Rather, our unpublished decisions are distributed to almost all criminal practitioners within days after the decisions are issued, and these decisions are readily accessible to everyone else.
Another of Mr. Bacon's predictions also proved to be wrong—this time, with more unfortunate consequences. In his memorandum, Mr. Bacon argued that Alaska need not worry about one potential danger of restricting the citation of unpublished opinions: "the possibility of different panels of the same appellate court rendering inconsistent decisions because the later panel is not aware of the previous unpublished decision". Mr. Bacon assumed that Alaska's appellate courts would always be aware of their own prior unpublished decisions because both courts always sit en banc.
This assumption may be true in the short run, but it is not true over the long term. In John v. State, this Court was required to address (and reverse) a twelve-year-old unpublished opinion that we ourselves had forgotten about. John illustrated the pitfall of issuing unpublished decisions: the problem that, "given enough time and enough change of personnel, the court `forgets' that we issued those decisions."4
Thus, all of Mr. Bacon's arguments in favor of restricting the citation of unpublished opinions have proved to be based on incorrect assumptions. This fact, however, does not directly answer the State's present contention that Appellate Rule 214 was intended to prohibit attorneys and judges from mentioning unpublished opinions. Even though Mr. Bacon's arguments have proved wrong, the supreme court may have been persuaded by those arguments in 1980.
The real question is to identify what Mr. Bacon meant when he told the supreme court that proposed Appellate Rule 214 embodied the "mainstream" position with respect to the citation of unpublished opinions—or, more precisely, to identify what the supreme court thought when they promulgated the rule.
The state of the law with regard to unpublished opinions
The legal research that Mr. Bacon was relying on—i.e., the research contained in Mr. Hemenway's memorandum—indicated that "[m]ost of the courts which do not publish all [of] their reasoned opinions forbid citing [the unpublished opinions] except for such purposes as collateral estoppel, res judicata, or law of the case". In Mr. Hemenway's memorandum, this sentence is immediately followed by a footnote—a footnote that directs the reader's attention to law review articles which conclude that a strict interpretation of this rule had "caused problems" and had "prevented [discussion] of many useful cases". Returning to the main text of the memorandum, Mr. Hemenway then noted that the American Bar Association had recommended that litigants be allowed to cite unpublished decisions so long as copies of the pertinent decisions were provided to all parties—and that several jurisdictions had adopted the ABA's recommendation.
From all of this, it is not clear what "mainstream" position Mr. Bacon was advocating when he asked the supreme court to adopt Appellate Rule 214. Our own research reveals that many courts with "no-citation" rules similar to the one described in Mr. Hemenway's memorandum—rules that forbid citation of unpublished decisions "except for such purposes as collateral estoppel, res judicata, or law of the case"—nevertheless allow attorneys to refer to unpublished decisions for whatever persuasive power they might have, even though unpublished decisions are not "precedent" in the sense that they control or restrict future judicial decision-making.
For example, even though Virginia law declares that unpublished opinions "are not to be cited or relied upon as precedent except for the purpose of establishing res judicata, estoppel or the law of the case", the Virginia Court of Appeals recently held that "a court ... does not err by considering the rationale [of an unpublished opinion] and adopting it to the extent it is persuasive."5
Similarly, Minnesota Statute 480A.08, subdivision 3(c), declares that "[u]npublished opinions of the court of appeals are not precedential". Nevertheless, the Minnesota courts have interpreted this statute as allowing attorneys to rely on unpublished decisions for their persuasive value.6
New Mexico takes the same approach to its "no citation" rule.7 So does Tennessee.8 And so does Texas.9
We have also found several instances in which other courts have allowed parties to cite unpublished decisions, or have assessed the reasoning or applicability of unpublished decisions, without expressly saying that unpublished decisions can be considered for their persuasive value. See McBride v. Jones, 803 So.2d 1168, 1171 (Miss.2002) (McRae, J., dissenting)
; Whitt v. State, 827 So.2d 869, n. 2 (Ala.Crim.App. 2001) (); Hammond v. State, 260 Ga. 591, 398 S.E.2d 168, 174 (1990); State v. Gonzales, 63 S.W.3d 317, 319 (Mo.App.2001).
Two states, Ohio and Utah, have reached the conclusion that all decisions, published and unpublished, are equally valid as precedent. Ohio achieved this result by amending its court rules.
Until earlier this year, Rule 2(G) of the Ohio Supreme ...
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