Jon_call's List: Target - Motion to Reconsider

• 9 Contrary to EBF's assertion, the doctrine of stare decisis has no application here. We are, of course, not bound by Gillmor or Pitt because they are court of appeals decisions.^[13] And while Elias was decided by this court, it is an unpublished opinion from 1978 that has not since been cited.^[14] Although we have not squarely addressed whether unpublished opinions from this court constitute binding precedent, we have previously identified the "evils" of unpublished opinions and expressed our reluctance to rely upon such opinions.^[15] Likewise, Utah Rule of Appellate Procedure 30(f) indicates that while unpublished decisions from this court may be cited for their persuasive value, they may not be cited as precedent.^[16] Accordingly, we hold today that while unpublished opinions from this court may be cited for their persuasive value, they are not binding on this court. We are not, therefore, shackled by our decision in Elias, and the burden of proof in boundary by acquiescence cases is an issue of first impression.^[17]

• However, by its own terms, the rule is not appropriate for use where there are "substantial constitutional issues, issues of significant public interest, issues of law of first impression, or complicated issues of fact or law." Utah R.App.P. 31.
• The evils of unpublished opinions have been commented upon by many. Given the paucity of precedent in Utah, there seems little justification for their use here. "[I]f a case deserves being disposed of by written opinion, that opinion should be published. If a decision truly adds nothing to the law, it should be disposed of from the bench or by a short written order that may be informative to the parties but to no one else." Paffel v. Paffel, 732 P.2d 96, 104 (Utah 1986) (Zimmerman, J., concurring). For a discussion of the potential problems associated with unpublished opinions see Reuben, Published in Part, Buried in Part, 16 Litig. 4 (Summer 1990), and Paffel v. Paffel, 732 P.2d 96, 104 (Utah 1986).

• This highlights what I think is an inadvisable practice — issuing unpublished opinions. In my view, if a case deserves being disposed of by written opinion, that opinion should be published.
• This gives special advantage to those who do more than keep up their subscription to our official reports.
• their use may encourage a lack of candor on the part of attorneys and lead to trial court rulings not consistent with our case law. T
• This whole set of operational assumptions is undermined by the use of unpublished opinions. When one lawyer is privy to our unpublished opinions and another is not, the first lawyer may properly conclude that he can use those unpublished opinions that support him and ignore those that do not, all with a minimal risk of exposure.

2 more annotations...

• In the determination of causes all decisions of the court shall be given in writing and the grounds of the decisions shall be stated. All decisions of the court having precedential value shall be published as opinions of the court. Each panel shall determine whether a decision of the court has sufficient precedential value to be published as an opinion of the court. Decisions determined not to have precedential value shall not be published.