10th Circuit: Unpublished Opinions O.K.

Most legal decisions made by state and federal appellate courts in Colorado are unpublished. 

Yesterday, the United States Court of Appeals for the 10th Circuit, upheld a challenge to the controversial practice in Colorado’s state and federal appellate courts, on procedural grounds, without addressing the merits of the claim that this distorts the law by depriving the public of knowledge of what the courts are doing, and by depriving litigants of the ability to use actual court decisions to guide future court decisions.What Are Unpublished Opinions?

While the parties are under no obligation to keep unpublished secret, they aren’t binding precedent.  At the federal level, unpublished opinions are still available briefly on the internet, but don’t have the status of binding law.  At the state level, unpublished opinions are available only on request in a particular case and are much harder for a non-party to obtain.

Unpublished opinions are particularly common in criminal cases, in cases involving prisoner’s petitions, and in cases where the primary argument is not the legal standard applied but that no facts in the record support the legal conclusions reached using that legal standard, although they are used in all kinds of cases.  Sometimes unpublished opinions are written by law clerks and staff attorneys and then reviewed by actual judges.  A staff written opinion might be given unpublished status because the judge may agree with the result, but view the draft as not particularly polished in writing quality.

Opinions are always supposed to be published when they make new law or give a novel interpretation to existing law, but this is a determination that is often in the eye of the beholder.

Why Are Unpublished Opinions Controversial?

Judges claims that using unpublished opinions saves time, both for people trying to stay abreast of the binding law and for judges who don’t feel pressure to relate the facts of a case in a way that would be clear to someone unfamiliar with the case.  For example, an unpublished opinion might simply say that the trial judge’s decision is affirmed for the reasons set forth in the trial judge’s opinion which is in accordance with settled law cited in that opinion and correctly applied, rather than spelling out an independent analysis of the facts and law.

Opponents of the practice say that it veils the judiciary in secrecy violating a right to have the public’s business done in public, and distorts the system of precedent upon which our legal system is based.

The Ruling

The 10th Circuit did not decide the case on the merits. 

It affirmed a dismissal of his state claims on the grounds that he lacked standing, because he was not injured by the fact that an opinion in his own case went unpublished.  It affirmed a dismissal of his claims regarding the 10th Circuit Court of Appeals for the same reason, further aggravated by his failure to use the ordinary appellate remedies in the case in question.

By implication, the 10th Circuit ruled that to have standing to challenge the practice of issuing non-precedential opinions, a litigant would need to show a harm such as an inability to use such opinions from prior cases in the litigant’s own case, changes or substantially prejudiced an outcome in the litigant’s case.  Of course, this means that the litigant needs some way of knowing about the case that they weren’t permitted to use through informal information sharing, or an in house collection of unpublished opinions.

An effort to indirectly influence the Colorado courts by forcing a state trial court to act was dismissed on the grounds that the federal courts do not have the jurisdiction to do so.


The unpublished opinions challenged in the litigation over the decision not to publish them, concerned Colorado’s refusal to admit Kenneth L. Smith, who represented himself in this case, to the practice of law in Colorado, largely because he refused to submit to a “mental status examination” as part of the character and fitness component of an application to be admitted to the bar.

The Underlying Issues

While Smith did not prevail in either of his litigations, both issues that he raised are controversial ones in the legal profession. 

Character and fitness questions about mental health require applicants to the legal profession to disclose information that would otherwise be subject to doctor-patient and related privileges designed to encourage people to seek mental health treatment without fear of collateral reprecussions from doing so.

The practice of issuing non-precedential opinions has likewise been controversial.  These opinions give repeat litigators in an area, like insurance companies, large law firms, and government agencies, access to insight on how appellate courts are likely to act, which is not available to the general public.  In part as a result of this controversy, the federal courts have recently promulgated new rules regarding these opinions that allow litigants to refer to them in court cases as persausive, although not as binding authority, in other cases.

Both practices are particularly difficult to challenge in court, because they are a product of decisions made by the U.S. Supreme Court and state supeme courts respectively, who are faced in litigation with a challenge to the legality of their own actions.  Federalism principles make challenging the rules of a state court in a federal court, or challenging the rules of a federal court in a state court, very difficult.  And, even legislative action to change these policies is a ticklish matter, as they go to the issue of judicial independence.

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