ihe.1976 reorganization of the Kentucky judicial sys

aikentucky Court of Appeals has effectively become the

Yl;jit resort for most appeals from the circuit courts of

_aie-fThis reorganization created the Kentucky Court of

_:ii7Court.7 In most cases the decision of the Court of

:~4_'the final step in the judicial process.' However, the

_~jjdblished 4 and under the rules of practice, such unpub

.v406ns may not be cited as authority in'any court in

this state.5 This author contends that the Court of Apr_extensive rendering of unpublished opinions, when coupled~___ the rule prohibiting the citation of unpublished opinionsduces undesirable results. Even though unpublished opinions are not cited as aut-h-.... they do influence trial judges, attorneys and perhaps thex~ of Appeals itself. Furthermore, there are instances of cleai-flict between published and unpublished decisions. Theseflicts create confusion within all branches of the legal profcs:;Moreover, they leave the Court of Appeals open to the -_ that it is not doing thorough work, or worse, that it knoWz, accomplishes through unpublished opinions that which it~ not do in published opinions. This Article first will trace the development of two-VeTrules in Kentucky: the rules governing the publication oil_a. ions and the rules prohibiting the citation of unpublished-i-_ sions. Further, this Article will summarize the Court of Ap_ case load and its practice in connection with the publicatit_opinions. This summary will be followed by an analysis of'of the problems created by unpublished Kentucky decisiorla solution to such problems, this Article advocates abolidivKentucky's "no-citation" rule.

I the publication of opinions was governed by the rulest-Supreme Court. Rule 1.310(b) stated:

,_~1.310(a) directed the court clerk to send copies of all

Aately to the West Publishing Company." The rule further

-0t to be published, the attorneys received a decision that

have read: "This case has been reviewed by a panel of circuit judges and by this court. All are of the opinion -1he judgment is correct and should be affirmed." 10 Thus,

4!wublished "decision" of the Supreme Court contained no

Sc-C.ourt's reasoning. Unpublished decisions reversing the

04~1;-because the decisions detailed neither the facts nor the

-7s_.reasoning process. Under the pre-1976 practice of Ken

-ehigh court, one point was clear: the law as interpreted :~F%highest court of this Commonwealth was found in the

__.~_Kentucky reports. When attorneys wanted to research

-vClhey "went to the books," the Kentucky Reports or the

149 KENTUCKY LAW JOURNAL [Vol

as follows: "Opinions of the Supreme Court shall be Publis~-.-,. unless the issues presented in a case do not involved [sic] -a,,-new or substantial point of law or any question of publiciy~ portance.1114 Rule 1.310(c) permitted the chief judge of the new-_ created Court of Appeals to recommend to the Supreme Colu. the publication of a Court of Appeals decision." The rev_is~, rules also contained the admonition that "ju]npublished OPinirshall not be cited or otherwise used in any other case in.A~_ court. ~~16 In 1978, the rules relating to publication of opinions byo---;Court of Appeals were modified. The Rules of Civil Procedu.contain the current rules governing the publication of opinjG_ and the citation of unpublished opinions. Rule 76.28(4)(a).P-,--, vides:

The present no-citation rule, found in Rule 76.28(4)(c) of M Rules of Civil Procedure, states: "Opinions that are not tozpublished shall not be cited or used as authority in any OTHF-case in any court of the state."" The rule further states-fij, "[p]arties to an appeal may not [by] agreement dismiss an ap-.and have an opinion withdrawn after it has been issued."19-t In many jurisdictions, court rules or statutes set forth sthl-ards for determining when publication is appropriate.20 Ea-ri--rules of the Kentucky high court suggested some reasons forv

Ky. R. App. P. 1.310(b), KRS (1976) [hereinafter cited as RAP].

See RAP 1.310(c), KRS (1976).

16 RAP 1.310(d), KRS (1976).

.7 CR 76.28(4)(a).

CR 76.28(4)(c).

CR 76.28(5).

In most states the decision whether to publish a decision of an appellate -

AW851 ON UNPUBLISHED OPINIONS 149

hing opinions. For example, cases that did not involve question of public importance" were not to be published.21 jjnder the present Court of Appeals rules, an opinion is not to

ge~pubfished if the Supreme Court grants discretionary review.22

iitherwise, the rules are silent as to when publication by the

t of Appeals is appropriate.23 The Court of Appeals has, wever, developed publication standards which are not conmAinedin its rules. The court utilizes a form, the substance of

Establishes a new rule of law, alters or modifies an ~-existing rule, or applies an established rule to a novel fact Mtuation;

150 KENTUCKY LAW JOURNAL [Vol_1_1__

The appellate panel makes the initial determination whether t...,

publish its decision .21 In most cases, the judge who writes it.

majority opinion decides whether to order publication .26 - -_

It is not unfair to say that present practice discoura~g-ipublication. If the judge who wrote an opinion does not Wan it published, for any reason, the judge simply checks the appi.-priate box. On the other hand, if the judge opts for publication-the decision should accomplish one of the five alternatives _1'rl~ dicated on the form. Clearly, the course of least resistance~:__ not to publish.

Notwithstanding promulgation of the no-citation rule ir-_ 1976,27 attorneys apparently continued to cite unpublished oplhions. In Yocum v. Justice,28 the Court of Appeals noted th.. there had been cases in which attorneys had cited unpublisMiopinions to various courts in the state.29The Justice court stati;that in future cases, it would strike the offending brief with4j,.leave to refile if the circumstances so warranted.10 Subsequ~-.l to the Justice decision, attorneys evidently have complied witthe rule, at least at the appellate level." However, the maj,difficulty with the rule prohibiting citation of unpublished onfirions does not arise in the Court of Appeals or even in i; Kentucky Supreme Court. The problem is a more serious rnntf. in the state's trial courts and in the daily practices of its att-,, neys.

A copy of this form was provided by the Staff Attorneys' Office of the Keni

See CR 72.28(4)(a).

See McDonald, Chance qfPub&hing?, 3 Louisv= LAw. 26, 27 (Winter

RAP 1.310(d).

569 S.W.2d 678 (Ky. Ct. App. 1977).

The author has found no published case in which an attorney's brief was bu~

without leave to refile for violating the "no-citation" rule.

~f I p

.e. opinion is published.12 Judge McDonald has stated that -olflhe easiest way to think of a nonpublished opinion is as a letter from the panel to the trial court judge and the -parties informing them of the decision and the rationale behind

ntial effect; it only prohibits citation of such opinions.35 As "Cn_

bir as appellate practice is concerned, the clear implication of _Wge McDonald's statement is that unpublished opinions have ~n prccedential value in this state.16 Judge McDonald may have uaderestimated the impact of unpublished opinions. It seems iii& attorneys who receive unpublished opinions in cases they ;oe handled tend to regard these opinions as more than per:&I letters. It is reasonable to assume that attorneys would

41fy.'on such unpublished opinions in their practice as a basis

"r. counseling clients in similar situations.

Numerous reasons have been advanced as to why appellat-L courts do not publish all of their decisions.37 An appellate court,,caseload may preclude wholesale publication .31 Recent caselo;f,statistics indicate that this consideration is directly applicable=~,the Kentucky Court of Appeals.

Since 1980, between 1,500 and 2,000 cases per year hav_~reached the Court of Appeals.19 During this same period, t.. Court of Appeals issued between 1,200 and 1,400 opinions an nually.40 This figure represents nearly 100 opinions per judge g4year. Nearly nine out of ten opinions of the Court of Appealsf~-since 1980 have gone unpublished.41

The volume of work produced at the Court of Appeals nic~_

likely affects its decision whether to publish opinions, and jul. -__

tifiably so. Given the number of opinions each judge writes,42 - -

would be unreasonable to expect every opinion to be refined st].

copy of the opinion is attached to the brief and made available to the other parties the litigation and to the court. See Omo S. CT. R. 2(G)(3); TENN. S. CT. R. 4(5).

Nor is the practice uniform in the federal system. The Tenth Circuit permits citaticof unpublished opinions. LOTH CiR. R. 17(c). in the Fifth Circuit, "[ulnpublished opinW~are precedent." 5TH CIR. R. 47.5.3 (unpublished opinion to be cited only when basis fres judicata, collateral estoppel or law of case). In the Seventh Circuit, unpublished ordE.can be cited "to support a claim of resjudicata, collateral estoppel or law of the ca;,a 7TH Cm. R. 35(b)(2)(iv) (emphasis in original). Citation of an unpublished opinion disfavored in the Fourth and Sixth Circuits. See 4TH Cut. R 36.5 18(d)(H) (exception I'establishing res judicata, collateral estoppel, law of case); 6TH CiR. R. 24(b). Citation flatly prohibited in the First, Second and Ninth Circuits. See IST CIR. R. 14; 2D CIR.~F § q.23; 9TH CIR. R. 21(c).

I See generally Andreani, Independent Panels to Choose Publishable Opinions-~ Solution to Caffornia's Selective Publication System, 12 PAc. L.J. 727 (1980-81--Douglas, Stare Decisis, 49 CoLum. L. REV. 735 (1949); Kanner, The UnpublishM Appellate Opinion: Friend or Foe?~ 48 CAL. ST. B.J. 386 (1973); Newbern & WilsonRule 21: Unprecedent and the Disappearing Court, 32 ARK. L. REV. 37 (1978-79--Silverman, The Unwritten Law-The Unpublished Opinion in California, 51 CAL. B.J. 33 (1976); Stern, The Enigma of Unpublished Opinions, 64 A.B.A.J. 1245 (1978-J.Note, Unreported Decisions in the United States Courts of Appeals, 63 CoRNEU i REV. 128 (1977-78).

11 See Andreani, supra note 37, at 728; Kanner, supra note 37, at 388; Silverina-', supra note 37, at 35, 38-39. See note 4 supra. See id. See id.

Notwithstanding its caseload, the decision of the Court of Appeals is, in most cases, the final step in the appellate process. 41though the losing party can make a motion for discretionary i.6-view in the Supreme Court, such a motion realistically affords little hope of revipw since the Supreme Court rarely grants these M otions. Indeed, the Court of Appeals makes the final decision I__U_ Inore than eighty-five percent of appealed cases.44 The fact t1jit. the Supreme Court does not review most cases greatly z~..Creases the importance of the Court of Appeals decisions. The i~ourt of Appeals' status as a de facto court of last resort should uvt.be ignored in determining whether and which of its decisions _7ajant publication.

_~It is often argued that cases lacking precedential importance ,,ould not be published.15 According to this argument, if a case ---Iy involves the application of settled rules of law, publication -A-d-5 nothing to the legal literature.46 However, there is at least problem with this reasoning. A case that does not seem .~Ucularly important today may become important in the future -ji - reasons that are entirely unknown to the court at the time ~decision is made. The "Precedential importance" of an _* n thus cannot be predetermined by its author. Rather, the

-6mey wishing to rely on the opinion in a subsequent matter _In-~.better position to decide whether the opinion is worth ung.

.s6me have argued that publication of all appellate court ~_Mons vastly increases )~rinting expense.47 Those advancing this

~--ftl & Wilson, supra note 37, at 38.

W4, .. -- -

and c freparing the length

154 KENTUCKY LAW JOURNAL [Volai~_

argument further contend that there is no commensurate beaefi-r,to offset the increased cost of publication.48 Most publicatir,,,_ costs, however, are borne by the members of the bar, not t~ state.49 Moreover, several states publish opinions of interrnediat~courts in large numbers.10 One would suppose that if there wcrrno market for these reports, the private publishing compan;_involved would soon find publication unprofitable and stop pqh~ lishing the decisions.

Another argument in favor of selective publication of iudicii.-_.-~ decisions is that courts issue opinions at such a rate that, if opinions were published, there would be an incredible mass,:O~

Since law firms and lawyers purchase the majority of volumes of reportopinions, the legal community and not the state pays most of the publication costs.

50 Many states utilize private firms to publish intermediate court decisions.~-_---example, decisions of the California Court of Appeal are reported in the Calif6aa~__ Appellate Reports, the Pacific Reporter and West's California Reporter. The Caflfok--Appellate Departments of the Superior Court report decisions in the California Appelln-_Reports Supplement, West's California Reporter and the Pacific Reporter. In Flor.:.'-District Court of Appeal decisions are reported in the Southern Reporter. The C4L Court, County Court and other lower courts of record are published in the FILI~2~ Supplement. The Georgia Appeals Reports and the Southeastern Reporter contain Tm. decisions of the Georgia Court of Appeals. The Illinois Appellate Court decisions---reported in the Illinois Appellate Court Reports and the Northeastern Reporter. !*~~ decisions of the Indiana Court of Appeals are published in the Indiana Court of App~iReports (prior to 1972, Indiana Appellate Court Reports) and the Northeastern Repori_~_In Maryland, the decisions of the Court of Special Appeals are reported in the Mary'-Appellate Reports and the Atlantic Reporter. In New Jersey, the decisions of the Sup._n~_ Court are reported in the New Jersey Superior Court Reports and the Atlantic Repol-~~_ T~e County courts and other lower courts also report decisions in these reporters,av- New Mexico Reports and the Pacific Reporter contain the opinions of the New M--;L-- Court of Appeal. In New York, the Supreme Court, Appellate Division, decisions~reported in the Appellate Division Reports and West's New York Supplement. 0":-lower court decisions are published in the New York Miscellaneous Report, and Wi-___ New York Supplement. In North Carolina, decisions of the Court of Appeals reported in the Southeastern Reporter.

The Ohio Court of Appeals reports its decisions in the Ohio Appellate Reports the Northeastern Reporter. Decisions of the Oregon Court of Appeals are reported~:the Oregon Reports, Court of Appeals, and West's Pacific Reports. In Pennsylv~", the Superior Court publishes decisions in the Pennsylvania Superior Court Reports _ the Atlantic Reporter. The Atlantic Reporter also contains the Pennsylvania Comffwealth Court decisions. The Tennessee Court of Appeals, Court of Chancery App,-- and Court of Criminal Appeals opinions are printed in the Southwestern Reportcf~ Washington, the Court of Appeals decisions are found in the Washington APP41o;- Reports and the Pacific Reporter.

084-851 ON UNPUBLISHED OPINIONS 155

ecisions are significant, those who need them will devise ways -of storing and retrieving them. Recent developments in the technology of storage and retrieval such as LEXIS, WESTLAW and JURIS necessitate a reconsideration of the "lack of space"

A fundamental cause of concern for attorneys and trial iudges arises from differences between the law announced in published cases and the results reached in unpublished cases. The manner in which one recent unpublished case was resolved --dustrates several problems created by unpublished opinions.

v. Gilmore & Tatge Manufacturing Co." concerned whether damages in a wrongful death action should be reduced where one of the beneficiaries of the wrongful death recovery 0s, guilty of negligence which contributed to the decedent's Ainthe54 A brief summary of the substantive law prior to the C~rter decision is necessary for an understanding of the diffi--n-Ities generated by this case.

- 'In an earlier wrongful death action, Bays v. Cox'Adminis

zrator,51 the Supreme Court held that a negligent beneficiary

wuld not share in the estate's recovery. The Bays rule repre

No. 80-CA-1906-DR ( Ky. Ct. App. Aug. 12, 1981). Carter eventually was .!:shed at 28 Ky. L. Su34m. 10, at 5 (Ky. Ct. App. Aug. 12, 1981) [hereinafter cited -!.KLS], and the facts referred to in this Axticle are taken from that publication.

. - '. 28 KLS 10, at 5. See also notes 62-71 infra and accompanying text for a

- ~-_`--~~on of the facts which gave rise to this issue.

In Bays, the Supreme Court found as a matter of fact that the death of Nola was caused by the concurring negligence of her husband, Henry Cox, and Kenneth as drivers of two colliding automobiles. Id. at 739. The Court held that the trial i erred in awarding Mrs. Cox' administrator $4,000 against Mr. Cox and $8,000 __~i Bays. Id. at 739-40. In so holding, the Court quoted § 241 of the Kentucky -1-Pstitution, which provides that "[ulntil otherwise provided by law, the action to

156 [Volm

sented a minority view and its rationale had been questionedr,

cisely the same question that had been decided in Bays, and_1V__

made the same ruling.19 However, the Court stated in dictum. -

The foregoing statement by the Supreme Court helped crear-. the problem in the unpublished opinion in Carter. The plaimiim in Carter was the personal representative of her deceased gi,-. year-old child's estate.61 The decedent was killed when he f& into an uncovered conveyor which was being operated by.K

recover (damages for wrongful deathl shall in all cases be prosecuted by the pers~--

representative of the deceased person. The General Assembly may provide how iT

recovery shall go." Id. at 739. The Court reasoned that § 241, in conjunction with K W_

§ 411.130 (1983) usurped the administrator's right to sue when the beneficiary's r-m

gfnce contributed to the death of the deceased. See id. Cf. Robinson's Admr

Robinson, 220 S.W. 1074, 1075 (Ky. 1920) (hutiband denied right to recovery ai;~

57 See, e.g., W. PROSSER, HANDBOOK OF THE LAw or TORTS 910-11 (4th ed. 1971~

510 S.W.2d 530 (Ky. 1974). - -

against both drivers, one of whom was her husband. Id. at 532. The woman recciv~-

injurias which resulted in the death of her unborn child and required her to underg

hysterectomy. Id. A jury awarded her more than $90,000 ($53,660.10 for her penC-:-

injuries and S40,196 for the infant's wrongful death) and apportioned the dwe.,

from each award for the wrongful death the amount of $10,000, which otherwise W& -

have been the father's beneficial interest in the recovery, was deducted." Id. On apV

the Supreme Court, citing Bays, affirmed the judgment. See id. at 538.

28 KLS 10, at 5.

The father was not joined as a de

.1ther, a tenant farmer.62

-endant. instead, the complaint alleged negligence of the man4f:acturer and the retailer of the equipment, and of the landowner ior whom the deceased's father was working.61 The trial court ,,Jsiained motions for summary judgment against the plaintiff that both parents were guilty of contributory the theory'

,qUgence as a matter of law,64 thereby precluding recovery zmder Cox and Bays .61 On appeal, however, the Court of Ap4gs followed the above quoted dictum. The Court of Appeals ed that "should negligence in any manner be assigned against er

parent or both parents, such finding will not preclude a -;Wvery.... Rather, as suggested by Cox, the share(s) of the

___ gdoer(s) in the recovery will pass to those who would take

.rthe person(s) were dead."66 The Court of Appeals ordered the ,gcision published '67 and the decision appeared in the August -22. 1981, Kentucky Law Summary.68

_~.The defendants in Carter successfully moved for discretion

review in the Kentucky Supreme Court.69 However, before _*i -briefs were filed, all parties to the lawsuit made a joint -Notion not to publish the Court of Appeals' opinion.70 The -~jprueffle Court dismissed the appeal as settled.71 Its order stated:

to supra and accompanying text for a discussion of Cox. The Carter court did not i:;,~-whether the trial court had relied on these cases, only that the lower court had

158 KENTUCKY LAw JOURNAL [V0.1-

"Consistent with CR 76.28(4)(a) the opinion of the CourtA___ Appeals shall not be published. 1171

The Carter result obviously is undesirable in that it producr,_ a clear conflict between the published law and the decision saj~the Court of Appeals. Such a conflict creates confusion. y& example, any alert lawyer doing personal injury work wo~uf~ understand from reading the Kentucky Law Summary that-!, Carter decision significantly modified rules relative to damaLyp_~~ in wrongful death actions. Such an attorney should feel free4j~~ cite the case to a trial court or to the Court of Appeals sinc~ the case was published in the Kentucky Law Summary. Howevc the unpublished order of the Kentucky Supreme Court directM..;_ that the decision not be published makes any such citatiugn~ improper."

Additionally, the circumventing of publication, as in Carte-mcould create the impression of impropriety. Dissatisfied clierii~_ could easily jump to the conclusion that the court ordered nulr-_--.publication of the appellate opinion to conceal an inadeqTt.__ rationale for the decision .74 To the suspicious, unpublished A-,often suggest secret and corrupt. The Commonwealth's judicansystem and bar do not need this kind of ill-favored speculatuk~ about their activities.

73 Furthermore, in dismissing Carter on appeal, the Court apparently disrega, CR 76.28(5), which prohibits parties to an appeal from agreeing on its dismissal in to circumvent publication of an opinion that has already been issued. See CR 70281f"Parties to an appeal may not be [sic] agreement dismiss an appeal and have an withdrawn after it has been issued."). Had the Supreme Court followed this rule. -i_ confusion created by Carter might have been avoided. Further, the Carter court -followed dictum in an earlier case and made a reasoned change in the law. This Ah would seem to justify publication of the decision under the Court of Appeals' See text accompanying note 24 supra. such inferences. clients are not the only group which might make Judges are obviously caught in a squeeze between the need to give litigants the reasons for the disposition and the need to keep those reasons brief and informal, while preserving the reputation of the court for scholarship.

forbidden access by the no-publication rule. Stern, supra note 37, at 1246 (emphasis added).

lod on the condition that the other party agree to a request for 011publication. This is not a proper element of damages in a iirongful death case." The defense bar was undoubtedly unhippy with the decision of the Court of Appeals in Carter; f&ever, neither the defense bar nor the insurance industry ;;hould be allowed to silence an unfavorable change in the law -by conditioning settlement on stipulated nonpublication.

Issuing unpublished opinions under the no-citation rule can niake it difficult, if not impossible, to reconcile inconsistent ~ases. A series of recent worker's compensation cases illustrates :ws difficulty. These cases focused on the proper apportionment nf death benefit damages between the Special Fund76 and em

ers where the deceased employee had suffered from a preploy

emsting disease.

Prior to 1983, the issue of proper apportionment of damages ~Ppeared to be settled. In 1978, the Kentucky Supreme Court beld in Yocum v. LOY77 that the employer was liable only "for ,be degree of disability which would have resulted from the rObsequent injury had there been no pre-existing disability or

In a subsequent case, Wells v. Collins,79 the trial court apAed the Loy standard in holding the Special Fund wholly liable

See KRS § 411.130 (1983) ("[D]amages may be recovered for the death added). See also Louisville & N. Ry. Co. v. Simrall's Adm'r., 104 S.W. 1011, zzio (Ky. 1907) (recovery is for death).

The Special Fund is a division of the Department of Labor which, in certain __-Ufi'mtar1ces, supplements employee compensation. See KRS § 342.120 (1983).

Id. at 650. The employee in Loy had suffered a fatal heart attack and the vQkmen's Compensation Board assessed 95% of the liability against the Special Fund --a-attributable to the employee's pre-existing heart condition. Id. at 647. The standard

`4 degree of disability which would have resulted from the latter injury or

id. at 650 n.3 (quoting KRS § 342.120(3) (1983)) (emphasis added).

160 KENTucKY LAW JOURNAL I V 0

ployee's death.10 The Court of Appeals, however, applied---different standard and reversed the trial court.81 The Court-Appeals held that "[flf a work connection exists in an incide-11-which brings about or contributes to the causation of a heawfattack, then the employer is liable --,)r a proportionate part~

the award, even if the same exertion or stress would have causeano injury to a healthy individual.1182 This test for measuring

employer's liability is quite different from the Loy standair-11-which holds employers liable only for "the disability whi~ would have resulted from the [fatal] injury . . . had there beeff_~ no pre-existing ... disease.1183 The Court of Appeals originali-j= ordered its opinion not to be published,84 but it subsequent!~E granted the Special Fund's motion for publication.85

Three weeks after the decision in Collins, but prior to the~ Court of Appeals publication order, a different panel decidu-u

Wells v. Dal Camp, InC.16 The Dal Camp panel, however, relie-n_!a on Loy and held that "the employer is only liable for the degr~~ of liability which would have resulted from the subsequent injt4~L~ to [the employee] had his coronary vessels been normal.1117 ui~~ Court of Appeals ordered this decision to be published." -

Under the no-citation rule, it would have been improper t,.;- - anyone to have cited the Collins case to the Court of Appe§..--in Dal Camp prior to the entry of the order to publish Colfix,

There is no reason why counsel should not tell one appelNr___

The trial court in Collins relied on KRS § 342.120(3), which was the basis7i!-f!iie Supreme Court's holding in Loy. Compare Wells v. Collins, No. 82-CA-1539-m~_

slip op. at 2-3 with Yocum v. Loy, 573 S.W.2d at 650.

See No. 82-CA-1539-iMR, slip op. at 8, 9.

Id., slip op. at 8. The court relied to a significant extent upon Moore v. Sqim~ D Co.; 518 S.W.2d 781 (Ky. 1974), for the proposition that "heart-attack cases fall

a special class of their own, to which, historically and necessarily, special rules Lbeen applied." Wells v. Collins, No. 82-CA-1539-MR, slip op. at 5 (quoting Moorcr

Square D Co., 518 S.W.2d at 784).

See 573 S.W.2d at 650.

See No. 82-CA-1539-MR, slip op. at 1.