-"-On. Unpublished Opinions


precedent must be the rule rather than the

ts are to have faith in even-handed adminon of justice in the courts.""


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

--as an intermediate appellate court under the Kentucky

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

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

of the decisions of the Kentucky Court of Appeals

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

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

-%k-~rbr, University of Louisville School of Law. A.B. 1958,'Western Ky. _1962, Vanderbilt University, LL.M. 1970, Harvard University.


~Erv.',Rav. STAT. §§ 21A.010-.160 (Bobbs-Merrill 1980 & Cum. Supp. 1984)

1-a KRS].

1, 1976, Kentucky's only appellate court (excepting district court courts) was the Court of Appeals. The 1976 reorganization renamed

~Xni'supreme Court and created a new intermediate appellate court, the

`-YeAffice these name changes are often confusing, this Article will

16. Kentucky's high court, whether before or after 1976, as the Supreme

- Uniformly refer to Kentucky's intermediate appellate court as the Court

Jor example, there were 588 motions for discretionary review filed in Preine Court, ofwhich 76 were granted and 512 denied. KENTUCKY

~4SRTISTIM REPORT (1983). See also text accompanying note 44 infra.

-:;:=~, the Court of Appeals rendered 1,362 opinions; 181, or 13.2%, of ordered published. STAFF ATTORNEYS' OFFICE, KENTUCKY COURT OF S. During 1981, the court ordered 10.217o of its 1,358 opinions

-~STAPP ATTORNEYS' OFFICE, KENTUCKY COURT OF APPEALS, 1981 STAof the 1,429 opinions rendered in 1982 were ordered published by



,xtrt rendered 1,240 opinions, of which 12.3 % were ordered published.


146 KENTucKy LAw JouRNAL

this state.5 This author contends that the Court of Apr_extensive rendering of unpublished opinions, when coupled~___ the rule prohibiting the citation of unpublished opinionsduces undesirable results. Even though unpublished opinions are not cited as aut-h-....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 Furthermore, there are instances of cleai-flict between published and unpublished decisions.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.



Before Kentucky's judicial system was reorganized int

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

If-the issues presented in a case do not detail the facts-li-.will dispose of the law or any question of public importffr,-the Court may direct that the opinion not be reported offic P" or cited as authority, which direction will be stated irIVopinion and shall be noted by the Clerk on the docketV7opinions in such cases will not detail the facts and will distof the issues in a summary manner.7

See Ky. R. Crv. P. 76.28(4)(c) [hereinafter cited as CR].

See note 2 supra.

7 Ky. Ct. App. R. 1.310(b), KRS (1962) [hereinafter cited as RCA).


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

to the court reporter, who was to forward them im

Aately to the West Publishing Company." The rule further

_,,led that opinions were not to be published until the man

.-Of the Supreme Court had been issued and until any motion,

a motion for rehearing, had been resolved.9

When the Supreme Court decided a case and the opinion

-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

'of facts and did not summarize the parties' arguments

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

urt were equally terse. Under the applicable rules, such

-could not be cited." Indeed, citation would have been

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

wiifern Reporter. Unfortunately, this is no longer the case.


~Lucky's current judicial system was established on Janu

~M.12 The constitutional amendment providing for a

_--court structure in this state necessitated the revision of

,~OWe.Court Rules and the adoption of rules by the new

ppeals, including those relating to publication of

.;!Iand citation of unpublished decisions. The statutory

,the current rule is Kentucky Revised Statutes §

states that the "Supreme Court shall deter

-4F-h opinions of the Court of Appeals and lower courts

Published." 13 In 1976, Rule 1.3 1 0(b) was revised to read

'ON.1.310(a), KRS (1962).

v. Ashland Oil & Refining Co., No. F-20-72 (Ky. Sept. 27, 1974).

1.310(b), KRS (1962).

2 supra*

CMA.070(2) (1980).


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:

When a motion for discretionary review under Rule 76.20 is granted by the Supreme Court, the opinion of the Court of Appeals in the case under review shall not be published unless so ordered by the Supreme Court. All other opinions of the appellate courts will be published as directed by the court issuing the opinion. Every opinion shall show on its face whether it is 'To Be Published' or 'Not To Be Published.117 _~

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 -

is made by the court deciding the case, in accordance with standards set out in

rules or statutes. Ohio, for example, employs a comprehensive set of criteria for

cation. The Ohio rule states that a decision will be published if:


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


Publication is not recommended.

Publication is recommended because the opinion:

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

Involves an issue of continuing public interest;

(1) it establishes a new rule of law, which term as used in this rule

common law, statutory law, procedural rules and administrative


(2) It alters, or modifies, or overrules an existing rule of law;

r C~, ~ (3) It applies an established rule of law to facts significantly different -firm those in previously published applications;

(4) It explains, criticizes, or reviews the history of an existing rule of

(5) it creates or resolves a conflict of authority, or it reverses, over

;1~', or otherwise addresses a published opinion of a lower court or dimh Istrative agency;

_~V(6) It concerns or discusses one or more factual or legal issues of -'j!j4,ffcant public interest;

(7) It concerns a significant legal issue and is accompanied by a

ng or dissenting opinion;

(8) It concerns a significant legal issue upon the remand of a case

-LIM the United States Supreme Court or the Supreme Court of Ohio.

-x0r- R. REP. Ops. 2(E). See also CAL. CT. R. 976; CoLo. APP. R. 35(f); ILL.

R. 23; IowA Sup. CT. R. 10; MICH. CT. R. 7.215; OKLA. R. APP. P. 1.200;

ANN. § 809.23 (West Supp. 1984-85).

- RCA 1.310(b), KRS (1972).

-Zze CR '72.28(4)(a).

72.28(4)(a) provides:

lWhen a motion for discretionary review under Rule 76.20 is granted

4 - the Supreme Court, the opinion of the Court of Appeals in the case

review shall not be published unless so ordered by the Supreme

All other opinions of the appellate courts will be published as

--~4cd by the court issuing the opinion. Every opinion shall show on its

.7.1~hether it is 'To Be Published' or 'Not To Be Published'.


Involves an issue of continuing interest to the state

judiciary and the practicing bar;

Criticizes existing law;

Resolves an apparent conflict of authority.24

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

Court of Appeals.

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).

See id. at 679.

See id.

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.





. it has been said that the precedential. effect of the decisions

he resent Court of Appeals of Kentucky depends on whether

~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

1 1133 This statement is consistent with the no-citation rule.14 The does not state that an unpublished opinion is of no prece

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.

--See McDonald, supra note 26, at 26.



f. CR 76.28(4)(c).

See text accompanying note 18 supra.

-~~Judge McDonald's conclusion is the same as that of the Texas Supreme Court, recently held that an unpublished opinion "is of no precedential value and should

__*~ted." Berry v. Berry, 647 S.W.2d 945, 947 (Tex. 1983).

']fare is little uniformity among other jurisdictions as to the propriety of citing

__-46hed opinions or the precedential value thereof. Some states do not have court statutes on the subject. See, eg., VA. CODE § 17-116.01 (1984) (ist and brief ~~Tof unpublished opinions kept by court clerk and available upon request). Other

AWY Prohibit the citation of unpublished opinions. See, eg., LA. CT. App. R. 2

T-61&ido and Michigan have court rules which state that unpublished opinions are precedent, but their rules do not prohibit citation. See COLO. App. R. 35(f); R. 7.215(C). A number of states have rules which permit reference to

-24-ued oPinions only for certain purposes. See, e.g., CAL. CT. R. 977 Oaw of the

re-3-Judicata, collateral estoppel, criminal action involving same defendant or action involving same respondent); ILL. S. CT. R. 23 (double jeopardy, res

_!~..collateral estoppel, law of the case or similar doctrines); IOWA S. CT. R. 10(f)

WCalifornia rule); Wis. STAT. ANN. § 809.23(3) (res judicata, collateral estoppel 6f the case). Ohio and Tennessee permit citation of an unpublished opinion if a

KFNTucKy LAw JoURNAL [Voi:~~


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.

42 See text accompanying note 41 supra.


it is suitable for publication. Also, given its existing personaseload, if the court were to adopt the practice of all its opinions in a manner suitable for publication, of time cases remain in the Court of Appeals would increase dramatically. Indeed, the present court system was eszablished to alleviate increasing delays at the appellate level.41

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

0 See Reed, From the Desk of the ChiefJustice: Workload Matters, 39 Ky. BExCH 25 (April 1975); Whitmer, One More Word-Your Support Needed, 39 Ky. BENcH

B~-'20 (July 1975).

See note 3 supra.

see, eg., Andreani, supra note 37, at 728; Kanner, supra note 37, at 388;

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

&e, eg., authorities cited in note 45 supra.

W4, .. -- -

and c freparing the length

See ABA APPELLATE CoupT STANDARDs, Standard 3.37 commentary, quoted in supra note 37, at 1245.


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~

See, eg., id.

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.


~aterial to be reproduced." Law firms often have no place to -Store the volume of decisions that are presently published, let

one an additional thousand opinions of the Kentucky Court of Appeals every year. The response to this point is that if the

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

See, eg., Silverman, supra note 37, at 35, 38.

See id. at 38. See also Newbern & Wilson, supra note 37, at 58-59.

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.

229 S.W.2d 737 (Ky. 1950).

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,

various quarters."

In 1974, the Supreme Court in Cox V. Cooper,"' faced pie

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

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

As an original proposition, a good argument can be made to the effect that in such a case the recovery to the estate should not be diminished at all, because if it is, as in this very example, the wrongdoer gains back half of what he loses. A better policy would pass what would otherwise be his share of the recovery on to those who would take it if he were dead. . . . We might have given favorable consideration to adopting such a policy had the administratrix brought the question to us, but sadly she did not, so we must live for the time at least with the ruling in Bays v. Cox'Admr ... that the amount of the wrongdoer's beneficial interest is deducted from what he has to pay.60

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;~

assaulting and killing wife).

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

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

In Cox a young pregnant woman involved in a two-car collision brought

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.,

between the defendants. Id. The trial court entered judgment accordingly, "except

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.

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:




See notes 55-57 supra and accompanying text for a discussion of Bays. See notes

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

miled summary judgment motions against the plaintiff. See 28 KLS 10, at 5.

28 KLS 10, at 6.

See No. 80-CA-1906-MR (Ky. Ct. App. July 10, 1981).

See 28 KLS io, at 5 (Ky. Ct. App. Aug. 12, 1981).

See No. 81-SC-734-DG (Ky. Dec. 8, 1981).

The motion stated:

-The undersigned, being all of the parties to this appeal, do hereby jointly move that this Court not publish the opinion heretofore rendered by the Court of Appeals on July 10, 198 1, on the grounds that the parties have reached settlement of the case which cannot be consummated until this

--:motion is ruled upon and that, since this court has granted discretionary review and that opinion has not been issued, it can under C.R. 16.28(4)(a) order the opinion not published if it deems such action appropriate.

Motion Not To Publish and To Extend Time For Filing Brief, Carter v. Gilmore

~At.&e Mfg. Co., No. 81-SC-734-DG. See Order Dismissing Discretionary Review Proceeding, No. 81-SC-734-DG.


"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.

Finally, it is possible that part of the Carter settlement W

72 Id. See note 23 supra for the text of CR 72.28(4)(a).

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.

An unpublished opinion accomodates both of these, but the very danger

of this system lies in its fulfillment of the tribunal's desire to avoid critical

review by non parties, legal commentators and even other courts, who are

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

disease.' 171

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).

573 S.W.2d 645, 650 (Ky. 1978).

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

.!;aj in Loy was taken from KRS § 342.120(3), which at the time of the Court's read as follows:

If it is found that the employe (has a previous disability or a dormant non-disabling disease or condition brought into disabling reality by a later injury] ... and the employe is entitled to receive compensation on the basis of the combined disabilities, the employer shall be liable only for the

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

occupational disease had there been no pre-existing disability or dormant

but aroused disease or condition.

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

No. 82-CA-1539-MR (Ky. Ct. App. Mar. 4, 1983).


for worker's compensation benefits payable because of the

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.

See Order Granting Motion To Publish, No. 82-CA-1539-MR (May 6, 198Y

No. 82-CA-1602-MR (Ky. Ct. App. Mar. 25, 1983).

See id., slip op. at 3 (emphasis added).

See id., slip op. at 1.

See CR 76.28(4)(c), which is set out in full at text accompanying note 18 s~



what another panel has done in a similar case. If attorneys cite to the Court of Appeals its own theretofore unpublished opinions, inconsistent results produced by such cases as Collins and Dal Camp could be avoided. As the Fourth Circuit

-4ated, "any decision is by definition a precedent and . . . we h

.cannot deny litigants and the bar the rig t to urge upon us what


-we have previously done. "90

jericol Mining Co. v. Jones9l demonstrates how knowledge

-o-f an unpublished opinion could give an attorney potential ad

ges in counseling and planning, as well as in litigation. One


-of the issues in Jericol Mining was whether the company could be enjoined and fined for misconduct by a management repreqentative during a labor dispute where the representative's ac:;dons were allegedly beyond the scope of his employment.92 ~kddressing this issue in an unpublished opinion, the Court of Appeals adopted the following standard for liability:

[Ulnions may only be held responsible for the authorized or ratified actions of their officers and agents. The complaining parties must prove not only that irresponsible or violent acts

__ ..-.by individual workers (or by agents provocateur) occurred


~~7also that in some way the union acting through its officers or

-agents initiated or encouraged or aided and abetted or ratified

the prohibited conduct.93

~_Applying this standard, the Court of Appeals held that the

_Z_Ifiriany could not be held liable for the violent misconduct of

u e mployees unless it "initiated, encouraged, aided, abetted or

rafifled" its employees' actions.91 The standard used by the

of Appeals, insofar as the proof needed to establish

~_._:_,estingly, both Collins and Dal Camp were appealed from the Harlan Circuit Court, the same attorneys represented the employer and the workers' interest in both cases.

Wells v. Collins, No. 92-CA-1539-MR, slip op. at 1, 10 with Wells v. Dal

Inc., No. 82-CA-1602-MR, slip op. at 1, 3. Consequently, the attorneys in Dal

certainly knew about Collins.

' Jones v. Superintendent, Va. State Farm, 465 F.2d 1091, 1094 (4th Cir. 1972), denied 410 U.S. 944 (1973).

" No. 79-CA-328-MR (Ky. Ct. App. Aug. 22, 1980).

See id., slip op. at 2, 6-7.

Id., slip op. at 7 (quoting United Mine Workers of America v. Eastover Mining 551 S-W.2d 245, 246 (Ky. 1977)).

Id., slip op. at 7.


liability of the company is concerned, is not universally appn&t. in labor matters.91 For example, labor practitioners who ha dNLRB election cases would anticipate a finding of emplo-= liability under the purported facts of Jericol Mining.96

Even though an unpublished decision such as Jericol Minin,,,, may not be cited, attorneys may want to rely on such opinion~F in counseling clients. Am attorney who uses unpublished deu-.=sions in advising a client may be securing an advantage for th.- client should the matter proceed to litigation. In labor disputeg-for example, a company's good faith belief that it is actink~ lawfully can be important. Consequently, an employer withm knowledge of the standard of liability announced in Jeric6!Mining would be in a position to deal with its employees or;i~--union more flexibly than would employers who were unawapp~ of the court's holding. If such a dispute proceeded to litigation.an employer who had acted on the advice of counsel and patterned its conduct to meet the requirements of Jericol MinhzkT~ could argue that it relied in good faith on the court's statemeal Thus, the employer could avoid an injunction or damages whiel-I might otherwise be appropriate.

There are cases in which it appears absolutely essential for a party to be able to cite an unpublished decision to protect IL,H--own interests. Consider, for example, an unpublished decisiu-iiof the Court of Appeals which quiets title to land in A. If X subsequently sells the land, the buyer should be able to rely Or. the unpublished decision if sued for possession of the propertv-he bought from A. Similarly, an attorney searching the title ta fract of land should be able to treat an unpublished decision. which quiets title in someone within the chain of title, as moi~ than a letter to a pair of litigants. The attorney in this situatin4surely would include a reference to the unpublished decision IT

See R. GoRm", BAsic TEXT oN LABoR LAW, UNIONMATION AND COLLE(aa BARGAiNiNo 326 (1977); 1 ABA, THE DEVELopuia LABoR LAW 330-32 (C. Morris 2d 1983).

" See, eg., I THE DEVELMN(3 LA~BoR LAW, supra note 95, at 330. See Gabriel Co., 137 N.L.R.B. 1252, 1267 n.6, 50 L.R.R.M. (BNA) 1369 (1962) ("It is material that the fear and disorder ... cannot be attributed either to the employer to the unions. The important fact is that such conditions existed and that a free eled-was thereby rendered impossible.").


~title opinion. Should the attorney's title opinion ever become subject of litigation, the case could not be disposed of

without reference to the unpublished opinion.

There are strong indications that the no-citation rule is difif not impossible to enforce. There are a number of ways,

inart from formal citation in a brief or memorandum, that

_U~published opinions are brought to a court's attention. First,

i judge may know about an unpublished opinion which resolves

411 appeal from his court .97 A trial judge is very likely to remem


Vr how the appeals court ruled on an issue he decided. The

judge is also very Akely to decide a subsequent case in accordance

with prior decisions of the appellate court. Indeed, the judge

~Ia y feel duty bound to do so, whether the decision is published,

v--ated or not. Trial judges can also learn about unpublished cases

trom fellow judges, especially in Kentucky's larger circuits.

-Whenever a judge has personal knowledge of and relies upon

111 unpublished appellate opinion, it makes no sense to require

A~_judge to be silent, especially when there is an arguable

ffiflict between the published and unpublished law.

. --Judges have related stories to this author about receiving

--~ublished decisions in the mail anonymously, or having them

"11--ed under their office doors. Policinc, this kind of conduct

Y t,

-virtually impossible. A system in which unpublished decisions

ited, analyzed and argued is preferable to such subterfuge.

In some situations, the no-citation rule may create an ethical

-t a 6-22 for attorneys. An attorney who cites an unpublished

----uuon to a court may be subject to professional discipline if

~.violation is intentional98 or results in injury to the client.99

-iff-the other hand, the attorney who knows about a line of

cases, but advises clients to act in accordance with

Published decisions, may not be giving these clients the best

~~Sible advice. 100 Similarly, the attorney who fails to learn about

V- Cf. note 89 supra and accompanying text.

See MODEL CODE OF PRoFEssioNAL RESPONsmmrry DR 7-106(C)(7) (1981) [here..ter cited as MODEL CODE] which provides, in part, that a lawyer shall not --tiOnally or habitually violate any established rule of procedure."

~ See MODEL CODE DR 7-101(A)(3) which provides, in part, that a lawyer shall

bitentionally "[Pirejudice or damage his client."

see MODEL CODE DR 7-101(A)(1) which provides, in part, that a lawyer shall


unpublished cases is open to a charge of incompetence and als-A.risks possible discipline.101 It would seem desirable to eliminat. these gray areas by making the unpublished decisions of the. Court of Appeals a body of binding precedent. This would allo -attorneys to rely openly on such opinions in their dealings Wit,J_ each other and with courts.


The modification of the rules of practice so as to permit tb-citation of unpublished opinions is a starting point for the eHip- ination of the problems extant in the present system. Abolitior, of the no-citation rule could help eliminate the idea that non,~ publication is a rug under which judges sweep whatever thev~ wish never to see the light of day. If lawyers could cite anuF_-;= argue unpublished opinions, case law conflicts could be recoi7n~ ciled and bad decisions could be overruled. Attorneys would ntu longer have to devise questionable methods for bringing such~ opinions to the attention of the courts. Similarly, judges witi.personal knowledge of relevant unpublished opinions would n.longer have to suppress the instinct to rely on such opinons in rendering decisions.

The abolition of the no-citation rule might create some dit ficulties. There would be more decisions to read. Furthermore there would be pressure on law firms to purchase copies of 21Court of Appeals decisions. On balance, however, the judicial~ system of the Commonwealth would benefit from the abolitioof the no-citation rule.

not intentionally "Iflail to seek the lawful objectives of his client through reasonaCul, available means permitted by law."

~. "' MODEL CODE DR 6-101(A)(1) provides, in part, that a lawyer shall not 1'[hJ1-flc a legal matter which he ... should know that he is not competent to handle." MCODE bR 6-101(A)(2) prohibits an attorney from handling a legal matter "withopreparation adequate in the circumstances." According to MODEL CODE EC 6-2, "[.. lawyer is aided in attaining and maintaining his competence by keeping abreast Ju. current legal ... developments ... and by utilizing other available means." As 0commentator noted, "the client does have the right to expect that the lawyer Will 1147 devoted his time and energies to maintaining and improving his competence to kavw where to look for the answers ... and to know how to advise to the best of his le.1-l' talents and abilities." Levy & Sprague, Accounting and Law- Is Dual Practice in Public Interest?, 52 A.B.A.J. 1110, 1112 (1966).