How to Cite Unpublished Opinions Without Being Woodsheded By Montana's State and Federal Courts

So what's up with unpublished opinions? I've got one right here, it's on paper, looks published to me. Unpublished opinions are also sometimes referred to as "non-citable" opinions, but this too, is problematic. Turns out some unpublished opinions -- even though they have been published -- are citable notwithstanding the traditional "non-citable" moniker. But only at certain times, and in certain courts. Does this make sense? Not particularly, no. Should we just follow the rule and let someone else carry the intellectual freight on this one? Probably, yes.

Montana doesn't really have a "rule" in the Rules (it's an internal operating rule). But the Court will promptly box your ears for citing its non-precedential opinions back to it, under any circumstances. State v. Oie, 2007 MT 328, ¶¶ 15-16, 340 Mont. 205, 174 P.3d 937. In Oie, both parties cited unpublished opinions on appeal. The Court observed:

Once again we take this opportunity to stress that unpublished orders and opinions from this Court are not to be cited as precedent. Indeed, unpublished opinions begin with an unambiguous and specific directive to counsel: 'the following decision shall not be cited as precedent.' These sorts of orders and opinions are unpublished for a reason. And, we admonish counsel not to cite or rely on such orders and opinions in the future. Moreover, when included in briefs, we give no regard to such citations. Our decision here disregards both Oie's and the State's improper citations.

Id. at ¶ 16. So the rule in Montana is: Don't do it, and expect a "la la la we can't hear you" just as soon as you do. The Ninth Circuit's more permissive take on the issue is codified at Rule 36-3, which states that you can cite unpublished dispositions decided after January 1, 2007, but that pre-2007 opinions may be cited only under limited circumstances. It all raises more questions than answers, but lacking the time and available brain space for a more thoughtful philosophical discussion, there you go.

Robert Timothy Reagan at the Federal Judicial Center has put together a fantastic schematic outlining the federal circuits' treatment of unpublished opinions. A similar state-level outline has been put together by Karen S. Brenda at the Boston College Law Library, and it is also quite good. And for all of you holdouts looking for an interesting and strikingly sane take on why unpublished opinions do more harm than good and are just bad news generally -- and who isn't? -- read Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000). A word of caution before you run out and try Anastastoff on the Ninth Circuit; it was already rejected in Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001).