Tax Analysts Blog

The Pinnacle of Secret Law

Posted on Feb 25, 2015

On February 24 Tax Analysts did the unthinkable: It published an unpublished opinion from the Colorado Court of Appeals. This may seem uneventful. Unpublished opinions are routinely available from courts across the country, but not from the Colorado Court of Appeals. Although the court may issue 2,000 or more written opinions each year, 75 to 85 percent of them are issued as unpublished opinions and have historically been made available only to the parties in the case.

The term “unpublished opinion” is a bit of a misnomer. Opinions of the Colorado appellate court must have precedential value to be published. If the court designates an opinion that way, it is published and officially reported in the Colorado appellate reports and the Pacific Reporter, Pacific Reporter Second, or Pacific Reporter Third. If the opinion is not designed for publication (in other words, it is not considered precedential), it is nonetheless filed for purposes of the public record.

Federal and state courts both use unpublished opinions. For many years, deeming an opinion unpublished meant it was literally hidden from practitioners because it was not published in an official reporter. Now, however, unpublished opinions appear in Westlaw and Lexis databases and are readily available from other online sources (such as Tax Analysts). Except in Colorado.

While unpublished opinions are generally available to practitioners and the public, the Colorado Court of Appeals has a policy specifically prohibiting the citation and distribution of unpublished opinions. Unpublished opinions can be requested from the court, but they come with instructions that their citations are forbidden and that they are “provided for private use and are not to be included in an electronic database or otherwise published.”

Colorado’s justification for the prohibition against citing unpublished opinions is that (1) unpublished opinions are not binding precedent; (2) copies of unpublished opinions are not generally accessible by anyone other than counsel and parties to the case; (3) because some state officials (for example, the attorney general) are able to maintain a database of unpublished opinions, it would give them an unfair advantage over private practitioners; and (4) unpublished opinions may include fewer facts than published opinions, making them less universally applicable.

Practitioners should not be limited from citing to any opinion of the court, even if it is unpublished. Court of appeals judges are capable of distinguishing between those opinions that are precedential and those that merely have persuasive value. But courts should not be able to "ignore" opinions they issue by designating them as unpublished.

There should also be no prohibition against the publication of an unpublished opinion. Unpublished opinions are part of court records, and as such, are a matter of public concern. The free discussion of the operation of the judicial system goes to the very core of the First Amendment. That the Colorado Court of Appeals would seek to shield from public view most of the opinions it issues is appalling.

Read Comments (5)

david brunoriFeb 25, 2015

Cara, I am glad you wrote about this egregious practice in Colorado. I hope
this post leads to a change of policy.

wolsonjrFeb 25, 2015

Likewise, there are too many secrets in our government.

robert goulderFeb 25, 2015

Vladimir Putin just phoned, he fully endorses Colorado's lack of transparency.

Punjamin ButtonFeb 26, 2015

I agree with your opinion.

Guy NeversFeb 26, 2015

So what sanction will Tax Analyst receive for this unspeakable transgression?

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