MASSACHUSETTS APPEALS COURT MODIFIES
RULE 1:28 CITATION POLICY
In an opinion released this morning, the Massachusetts Appeals Court modified its long-standing policy that "unpublished decisions of this court are not to be relied upon or cited as authority in unrelated cases." That policy was announced almost twenty-three years ago in the case of Lyons v. Labor Relations Comm., 19 Mass. App. Ct. 562, 566 n.7 (1985). In today’s decision, Chace v. Curran, -- Mass. App. Ct. -- (Docket No. 2006-P-1452) (2008), the Court said that unpublished decisions "issued after the date of this opinion, may be cited for [their] persuasive value but . . . not as binding precedent."
As it issued the decision in Chace, the Court simultaneously filed with the Rules Committee of the Supreme Judicial Court a request for an amendment to Appeals Court Rule 1:28 or Rule 16(g) of the Massachusetts Rules of Appellate Procedure to detail the steps that must be followed when appellate briefs refer to unpublished opinions. As noted in the opinion, "[u]ntil proceedings on that proposed rule are completed, litigants should include the full text of the [rule 1:28] decision as an addendum to the brief in which it is cited."
Explaining the reason for permitting limited use of unpublished opinions, the Court said in Chace that those decisions "are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, [unpublished] decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. In the nearly twenty-three years since we decided Lyons, however, our [unpublished] decisions have become far more widely available and now routinely appear in the results of electronic research. That widespread availability leads us to announce a modification of the prohibition set out in Lyons."
Appeals Court Chief Justice Phillip Rapoza, who authored the Chace decision, said, "We look forward to working with the bar on any issues that may arise from the modification of our policy. To that end, we anticipate meeting with the Appellate Bench Bar Committee of the Massachusetts Bar Association in the near future ."
Please direct further inquiries to Alex McNeil, Court Administrator, Massachusetts Appeals Court, 617-725-8098.