In the published opinion of State v. Hensley, a concurring opinion was devoted to a somewhat surprising issue: a disagreement regarding the majority opinion’s citation to a single unpublished opinion. I suddenly have the attention of only the appellate nerds reading this blog.
Under Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure, unpublished decisions of the Court of Appeals are not controlling legal authority. While Appellate Rule 30(e)(3) states that citations to unpublished opinions in “briefs, memorandums, and oral arguments” are disfavored, it does not speak to whether the courts may cite to unpublished opinions.
Interestingly, a prior version of Rule 30(e)(3) provided that unpublished opinions “should not be cited in any other case in any court for any purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered.” See N.C. R. App. P. 30(e)(3), reprinted at 356 N.C. 701, 708 (2002) (emphasis added). Could it be argued that the 2002 change to Rule 30(e)(3) authorizes the appellate courts to cite to and rely on unpublished opinion for their persuasive value?
Judge Stroud would likely disagree. While her concurring opinion in Hensley acknowledges that Rule 30(e)(3) does not currently address the issue, she feels that courts should avoid citations to unpublished opinions like the plague. For more insight on her thoughts, read the law review article she wrote on this topic several years ago. Donna S. Stroud, The Bottom of the Iceberg: Unpublished Opinions, 37 Campbell L. Rev. 333 (2015).
Judge Bryant, on the other hand, apparently concluded that this particular unpublished opinion was important. A footnote in her majority opinion addressed Judge Stroud’s concurrence. While noting “with approval the concurring opinion setting forth the possible perils in courts citing to unpublished opinions,” she elected to “retain” the cite to the “unpublished opinion as an example of the importance of the role that such opinions play,” and “also the possibility of unintended consequences that may arise if non-precedential case law ‘bleeds over’ in precedential case law.”
Perhaps in a nod to Switzerland, Judge Davis concurred only in the result.