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McCoy v. State (11/22/2002) ap-1842
McCoy v. State (11/22/2002) ap-1842
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHRISTOPHER J. MCCOY, SR., )
) Court of Appeals No.
A-7789
Appellant, )
Trial Court No. 3KN-99-1844 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, ) ON REHEARING
)
Appellee. ) [No.
1842 November 22, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Harold M. Brown, Judge.
Appearances: 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.
MANNHEIMER, Judge.
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which declares that unpublished decisions may not be cited in the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, State v. McCoy, ___ P.3d ___,
Alaska App. Opinion No. 1822 (August 30, 2002), 2002 WL 1998080,
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arguing that an unpublished decision is precedent in the sense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from bringing an unpublished decision to a courts attention for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declares that unpublished decisions may not be cited, it means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unpublished decisions when they argue and decide matters in the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 States 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 courts staff attorney, Andrew M. Hemenway,
analyzing the state of the law with respect to
unpublished decisions. Both Mr. Bacons memorandum and
Mr. Hemenways 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. Bacons memorandum,
and from the existence of Mr. Hemenways 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. Bacons 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 Clerks 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
Clerks 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 courts 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 Clerks Office become
the depository of semi-secret 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. Bacons 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 Alaskas 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. Bacons 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 States
present contention that Appellate Rule 214 was intended
to prohibit attorneys and judges from mentioning
unpublished opinions. Even though Mr. Bacons 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. Hemenways
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. Hemenways memorandum, this
sentence is immediately followed by a footnote a
footnote that directs the readers 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 ABAs 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.
Hemenways 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, ___So.2d ___ (Ala. Crim.
App., Aug. 31, 2001), 2001 WL 996849, *7 n.2 (in which
the court expressly stated that it was relying on the
analysis contained in an earlier unpublished opinion);
Hammond v. State, 398 S.E.2d 168, 174 (Ga. 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 Court Rules for the Reporting of Opinions
declared that unpublished decisions of Ohios courts of
appeals were not controlling authority (except for
purposes of collateral estoppel, res judicata, or law
of the case), but could be cited as persuasive i.e.,
non-binding authority. But in May 2002, Rule 2(G) was
superseded by a revised Rule 4. Section (A) of this
rule declares, Notwithstanding the prior versions of
these rules, designations of, and distinctions between,
controlling and persuasive opinions of the courts of
appeals based merely upon whether they have been
published ... are abolished. Section (B) adds, All
court of appeals opinions issued after the effective
date of these rules [i.e., after May 1, 2002] may be
cited as legal authority and weighted [sic] as deemed
appropriate by the courts.
(In recognition of computer technology, Ohio
Rule 3(B) requires that all court of appeals opinions
(whether published or not) be posted to the Supreme
Court web site.)
The Utah Supreme Court achieved this same
result by striking down a no citation rule promulgated
by the Utah Judicial Council.10
In addition, several states have enacted
rules that explicitly allow parties and judges to
discuss and rely on unpublished decisions, not as
controlling precedent but rather for their persuasive
value.
For example, Iowa Appellate Rule 6.14(5)(b)
states that unpublished appellate decisions may be
cited in a brief, but they shall not constitute
controlling legal authority. The rule requires parties
to attach a copy of the unpublished opinion ... to
[their] brief[,] accompanied by a certification that
counsel has conducted a diligent search for, and fully
disclosed, any subsequent disposition of the
unpublished opinion. And, in recognition of the role
that on-line legal databases play in the modern
practice of law, the rule requires the party to
include, when available, an electronic citation
indicating where the opinion may be readily accessed on
line.
Oklahoma Criminal Appeal Rule 3.5(C)(3) is
similar: [A]n unpublished opinion is not binding on
this Court. However, parties may cite and bring to the
Courts attention the unpublished opinions of this Court
provided counsel states that no published case would
serve as well the purpose of which counsel cites it,
and provided further that counsel shall provide
opposing counsel and the Court with a copy of the
unpublished opinion.
In the same vein, Michigan Rule of Court
7.215(C)(1) states that an unpublished opinion is not
precedentially binding under the rule of stare decisis.
The rule then allows parties to cite unpublished
opinions for their persuasive value, but requires the
party to provide a copy of the [unpublished] opinion to
the court and to opposing parties with the brief or
other paper in which the citation appears.
And even in those states that forbid the
parties from mentioning unpublished opinions, judges
read unpublished opinions and pay attention to them.
See Wortel v. Somerset Industries, Inc., 770 N.E.2d
1211, 1220 n.5 (Ill. App. 2002), in which the court
admitted that it reviews unpublished opinions when it
researches a case. See also State v. Locklear, 20 P.3d
993, 997 n.11 (Wash. App. 2001), in which the court
acknowledged that unpublished opinions are not to be
cited as precedent, but then assured its readers that
the court was not aware of any unpublished opinion that
is [in]consistent with the analysis the court adopted.
Three other decisions of the Washington Court
of Appeals provide a striking illustration of this
judicial ambivalence. Washington Appellate Rule
10.4(h) states that [a] party may not cite as an
authority an unpublished opinion of the Court of
Appeals. In Mann v. Hobbick, 2002 WL 1402546 (Wash.
App., July 1, 2002), the court imposed monetary
sanctions on an attorney for citing an unpublished
opinion. In In re Marriage of Gilbert, 945 P.2d 238,
240-41 (Wash. App. 1997), the court of appeals stated
that even though it found the reasoning of an
unpublished opinion highly persuasive, it could not
rely on that unpublished opinion so, instead, the
court called for supplemental briefing on the issue of
whether it should adopt the analysis of the unpublished
opinion. And in Starypan v. Metropolitan Park Dist. of
Tacoma, unpublished, 2001 WL 285827 (Wash. App., Mar.
23, 2001), when one party asked the court to strike
references in the other partys brief to unpublished
decisions issued by other jurisdictions, the court
refused. The court ultimately declared that it had
decided not to rely on the unpublished decisions, but
only because the court [did] not find [them]
persuasive.11
We note that the Hawaii chapter of the
American Judicature Society recently submitted a report
to the Hawaii Supreme Court recommending that Hawaii
Appellate Rule 35 be amended to allow parties to rely
on unpublished opinions for their persuasive value.
The Judicature Society explained, There is a problem
perceived by the legal community with the continued use
of summary disposition orders and, particularly, the
inability to cite memorandum opinions despite the fact
that these opinions appear to be of substantial length
and content and often cite other case law as precedent
for the conclusions.12
We also note that many courts allow litigants
to rely on the unpublished decisions of other
jurisdictions for whatever persuasive power those
decisions might possess. See Byrd v. Bentley, ___
So.2d ___, 2002 WL 1941686, *7 (Ala., Aug. 23, 2002);
Waskel v. Guaranty National Corp., 23 P.3d 1214, 1220
(Colo. App. 2000); Staff of Idaho Real Estate Commn v.
Nordling, 22 P.3d 105, 109 (Idaho 2001); State v.
Gibbs, 769 N.E.2d 594, 598 n.4 (Ind. App. 2002);
Campbell v. Markel American Insurance Co., 822 So.2d
617, 625 n.4 (La. App. 2001); Palacios v. Louisiana and
Delta R.R., Inc., 775 So.2d 698, 702 (La. App. 2000);
State ex rel. Gendrich v. Litscher, 632 N.W.2d 878, 882
n.6 (Wis. App. 2001); State v. Allen, 539 S.E.2d 87,
103 (W.Va. 1999).
Turning to the federal system, half of the
federal circuits have rules that explicitly allow
parties and judges to rely on unpublished decisions for
their persuasive value. The Sixth Circuits Rule 28(g)
is typical of these provisions:
(g) Citation of Unpublished Decisions.
Citation of unpublished decisions in briefs
and oral arguments in this Court and in the
district courts within this Circuit is
disfavored, except for the purpose of
establishing res judicata, estoppel, or the
law of the case. If a party believes,
nevertheless, that an unpublished disposition
has precedential value in relation to a
material issue in a case, and that there is
no published opinion that would serve as
well, such decision may be cited if that
party serves a copy thereof on all other
parties in the case and on this Court. Such
service shall be accomplished by including a
copy of the decision in an addendum to the
brief.
The Fourth Circuits Rule 36(c), the Eighth
Circuits Rule 28A(i), the Tenth Circuits Rule
36.3, and the Eleventh Circuits Rule 36-2
contain similar language.
The Fifth Circuits Rule 47.5
distinguishes between unpublished opinions
issued before January 1, 1996 and those
issued on or after that date. Subsection 3
of Rule 47.5 states that unpublished opinions
issued before 1996 have the force of binding
precedent although they normally [should] be
cited only when the doctrine of res judicata,
collateral estoppel or law of the case is
applicable. Subsection 4 then declares that
unpublished decisions issued on or after
January 1, 1996 are not binding precedent
but parties and judges may freely rely on
them for their persuasive value.13
And, in a striking departure from
its past practice, the District of Columbia
Circuit recently decided to give equal
precedential weight to published and
unpublished decisions alike. The D.C.
Circuits Rule 28(c)(1)(A) states that
unpublished decisions issued before 2002 are
governed by the Circuits old rule i.e., they
are not to be cited except for purposes of
establishing res judicata, collateral
estoppel, or law of the case. But the next
subsection, Circuit Rule 28(c)(1)(B),
declares that all of the Circuits unpublished
decisions issued on or after January 1, 2002
may be cited as precedent without limitation.
Even in the remaining federal
circuits the ones that do not allow citation
of unpublished decisions for persuasive value
it is obvious that the judges are aware of,
and read, unpublished opinions. For
instance, in Acequia, Inc. v. Prudential Ins.
Co. of America, the Seventh Circuit discussed
an unpublished opinion of the Ninth Circuit
(a circuit that does not allow citation of
unpublished opinions), but concluded that the
unpublished opinion was unpersuasive.14 The
First Circuit engaged in similar analysis of
an unpublished decision from the Ninth
Circuit in United States v. Mojica-Baez.15
In Sandvik AB v. Advent International Corp.,
the Third Circuit considered an unpublished
decision of the Fourth Circuit.16 And in
Patton v. Cox, the Ninth Circuit considered
an unpublished decision of the Third
Circuit.17
Moreover, when an unpublished
decision comes from a circuit that allows
citation of its unpublished decisions for
their persuasive value, the no citation
circuits do not hesitate to examine the
unpublished decisions of their sibling
circuits.18
It also appears that the no
citation circuits are becoming sensitive to
the criticism that their rules potentially
allow panels to issue inconsistent or even
irreconcilable decisions. The Ninth Circuit
amended its no citation rule to allow parties
to cite unpublished decisions to support a
request for publication or to support a
petition for rehearing (either by the panel
or en banc) if the unpublished decision
demonstrates the existence of conflicting
decisions within the circuit.19 And even
though the First Circuit has no analogous
rule, a panel of the First Circuit recently
went out of its way to assure readers that
its decision was fully consistent with prior
unpublished decisions from that circuit.20
Our construction of Alaska Appellate Rule 214
Many of the authorities we have just
discussed are tangential to the issue confronting us in
the present case. Our task is not to frame the best
possible rule regarding unpublished opinions. Rather,
our task is to construe the rule that we have Alaska
Appellate Rule 214. We must determine what the Alaska
Supreme Court intended to accomplish when it
promulgated Appellate Rule 214.
Current judicial treatment of unpublished
opinions may not provide a firm answer to this
question. But this Courts own Standing Order Number 3
provides a contemporaneous indicator of how Rule 214
was viewed when it was initially promulgated.
This Court adopted its Standing Orders in
March 1981, shortly after the supreme court promulgated
Appellate Rule 214 (and the rest of the revised Rules
of Appellate Procedure). Standing Order Number 3 sets
forth the Guidelines for Publication of Court of
Appeals Decisions.
Paragraph 6 of those Publication Guidelines
specifies that every unpublished decision of this Court
is to be distributed to all the judges of Alaska.
Paragraph 6 further specifies that unpublished
decisions are to be made available upon request to all
members of the public. This clause quickly led to the
routine distribution of all of our unpublished
decisions to the Department of Law, the Public Defender
Agency, and other lawyers who submitted a standing
request to receive them.
In other words, within months of the supreme
courts enactment of Appellate Rule 214, this Court
issued a standing order that mandated distribution of
all our unpublished decisions to every Alaska judge and
to every other person who wanted a copy. The purpose
of Standing Order Number 3 was to make sure that all
the judges of this state and all other interested
attorneys and litigants were apprised of every one of
our unpublished decisions.
This purpose is inconsistent with the States
current suggested interpretation of Appellate Rule 214.
For if Appellate Rule 214 was intended to guarantee
that unpublished decisions were never referred to again
(aside from establishing collateral estoppel, res
judicata, or law of the case), why would this Court
require distribution of all its unpublished decisions
to every judge in Alaska and to every attorney or
litigant who expressed an interest? It makes no sense
to require all judges and all interested attorneys to
receive copies of our unpublished decisions unless we
believed that this information might benefit them by
providing them with a growing library of written
decisions that would give them insight into how this
Court was applying the law.21
Standing Order Number 3 in particular,
Paragraph 6s mandate of a wide and unrestricted
distribution of this Courts unpublished decisions is
fundamentally at odds with the States suggestion that
unpublished decisions are to be read only by the trial
judge and the parties, then never mentioned again.
Rather, our Standing Order Number 3 strongly suggests
that unpublished opinions were intended to be discussed
by judges and attorneys for whatever persuasive power
they might have.
As explained above, Standing Order Number 3
was issued in March 1981, shortly after the supreme
court promulgated Appellate Rule 214. There has never
been any suggestion that our Standing Order is
inconsistent with Appellate Rule 214.
Based on this history, we align ourselves
with Minnesota, New Mexico, Tennessee, Texas, and
Virginia states that have interpreted their
no citation rules to mean only that unpublished
opinions are not precedent for purposes of stare
decisis. We reaffirm our holding that, although
Appellate Rule 214 forbids citation of unpublished
decisions as precedent (i.e., as decisions that control
or restrict future judicial decision-making), the rule
does not forbid judges and lawyers from relying on
unpublished decisions for whatever persuasive power
those decisions might have.
_______________________________
1 See McCoy, Opinion No. 1822 at pages 4-5, 2002 WL 1998080
at *2.
2 John, 35 P.3d at 64 (Mannheimer, J., concurring).
3 Id.
4 Id. at 65.
5 Fairfax County School Board v. Rose, 509 S.E.2d 525,
528 n.3 (Va. App. 1999) (en banc).
6 See Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn.
App. 1993); State v. Rosillo, unpublished, 2001 WL 881279,
*2 (Minn. App., July 31, 2001).
7 See State v. Gonzales, 794 P.2d 361, 370-71 (N.M. App.
1990). The rule in question, New Mexico Appellate Rule 12-
405(C), states: An order, decision or memorandum opinion,
because it is unreported and not uniformly available to all
parties, shall not be published nor shall it be cited as
precedent in any court.
8 See State v. Tansil, 72 S.W.3d 665, 667 (Tenn. Crim. App.
2001); Brown v. Knox County, 39 S.W.3d 585, 589 (Tenn. App.
2000); State v. Kelley, unpublished, 2002 WL 927610, *24
(Tenn. Crim. App., May 7, 2002). But see Hickman v.
Tennessee Board of Paroles, 78 S.W.3d 285, 290 (Tenn. App.
2001) (declining to rely on unpublished decisions as
authority, even though the court declared that [the]
reasoning [of these decisions] is sound).
9 See Hernandez v. State, 55 S.W.3d 701, 705 (Tex. App.
2001); Davenport v. Verner & Brumley, P.C., unpublished,
2001 WL 969249, *2 (Tex. App., Aug. 8, 2001) (both
discussing and considering unpublished opinions for their
persuasive value). But see State Farm Lloyds v. Borum, 53
S.W.3d 877, 889 n.7 (Tex. App. 2001) (A litigant brought an
unpublished decision to the attention of the court because
it was apparently the sole statement by a Texas court on the
pertinent question of law. The court declared, Unpublished
opinions have no precedential value and must not be cited as
authority by counsel[;] we are [therefore] constrained by
the appellate rules from considering [this unpublished
decision] as authority.).
(Texas Appellate Rule 47.7 states: Opinions not designated
for publication by the court of appeals have no precedential
value and must not be cited as authority by counsel or by a
court.)
10 See Grand County v. Rogers, 44 P.3d 734, 738 (Utah
2002):
[I]t is appropriately within the discretion of the
court of appeals to determine which matters require
oral argument, which decisions require a full opinion,
and which do not. It is not, however, within their
authority, or the authority of the Judicial Council, to
decide which of their decisions may be cited as
precedent. The work of judges, the ... decisions and
opinions issued to the parties, bar, and public, is the
very fabric of the common law. When judges speak on
issues of law, that expression becomes part of the law
until it is authoritatively revised. When the court of
appeals renders a decision on an issue, that decision
is automatically part of the law of this state, unless
and until contravened by this court, the legislature,
or the people through the processes authorized for the
making of new law. For this reason, decisions of the
court of appeals expressed in a memorandum decision, or
in an opinion, are equally binding upon lower courts of
this state, and may be cited to the degree that they
are useful, authoritatively and persuasively. Such
decisions are issued and distributed as are all other
opinions, except for the fact that they are not
published in the Utah Advance Reports or the West
reporter system. They are generally available to the
bar and public through the internet service provided by
the Administrative Office of the Courts, and although
not officially published, may be presented as
precedential authority to a lower court or as
persuasive authority to this court, so long as all
parties and the court are supplied with accurate copies
at the time the decision is first cited.
Obviously, if memorandum decisions are limited only
to those circumstances in which the legal reasoning and
the application of that reasoning to a case add nothing
to the body of the law, citation of a memorandum
decision will be unnecessary. Existing primary case
law is adequate and more appropriate because of its
more complete reasoning. But, in those rare instances
when some new legal rule is inadvertently announced by
way of a memorandum decision, authorizing citation to
that decision will assure consistency in the law.
11 Starypan, 2001 WL 285827 at *2 n.3.
12 Flores v. Barretto, 54 P.3d 441, 447 n.1 (Haw. 2002)
(Acoba, J., concurring) (quoting American Judicature
Society, Hawaii chapter, Report of the AJS Committee
Reviewing Unpublished Opinions (June 14, 2002), at p. 4).
13United States v. Rodriguez-Montelongo, 263 F.3d 429, 433
n.3 (5th Cir. 2001); Anderson v. Red River Waterway
Commn, 231 F.3d 211, 213 n.1 (5th Cir. 2000).
14226 F.3d 798, 805 (7th Cir. 2000).
15229 F.3d 292, 308 (1st Cir. 2000).
16220 F.3d 99, 103-04 (3rd Cir. 2000).
17276 F.3d 493, 498-99 (9th Cir. 2002).
18See McClendon v. City of Columbia, ___ F.3d ___, 2002 WL
2027329, *18 n.9 (5th Cir. 2002) (en banc) (Parker, J.,
dissenting); Acosta v. Artuz, 221 F.3d 117, 123 (2nd
Cir. 2000); United States v. Leon, 203 F.3d 162, 164
n.3 (2nd Cir. 2000); Barmes v. United States, 199 F.3d
386, 389 n.1 (7th Cir. 2000); Sutton v. Providence St.
Joseph Medical Center, 192 F.3d 826, 831 n.1 (9th Cir.
1999).
19Ninth Circuit Rule 36-3(b)(iii).
20See Utica Mutual Insurance Co. v. Weathermark
Investments, Inc., 292 F.3d 77, 84 n.4 (1st Cir. 2002).
21 See John v. State, 35 P.3d at 64-65 (Mannheimer, J.,
concurring).
