Unpublished Dispositions Citable as Persuasive Authority After July 1st

Editor’s Note. Legislation and rule changes are almost never reported at Hawaii Legal News. However, the recent amendment to Hawaii Rules of Appellate Procedure (HRAP) Rule 35 affects the way we conduct legal research. Hawaii Legal News believes it is newsworthy. Hawaii Legal News will not, however, regularly report unpublished dispositions.

HRAP Rule 35 and a new body of law. HRAP Rule 35 was amended. There are still three classes of appellate dispositions: the summary disposition order, the memorandum opinion, and the published opinion. HRAP Rule 35(a). A memorandum opinion carries no precedent like a published opinion, and a disposition order may only be published when the appellate court designates it for publication. HRAP Rule 35(b). Only a published opinion has precedential effect and “makes law.” Memorandum opinions and summary disposition orders filed before July 1, 2008 cannot be cited as the law in any other action or proceeding unless (i) it establishes the law of the pending case; (ii) has res judicata or collateral estoppels effect; or (iii) in a criminal action or proceeding involves the same respondent. HRAP Rule 35(c)(1). After July 1, however, “[a]ny disposition filed in this jurisdiction . . . may be cited in any proceeding.” HRAP Rule 35(c)(2). Memorandum opinions and summary disposition orders are still not precedent and no one has a duty to cite them. Id. The only difference is that a party may cite them as persuasive authority so long as the disposition is “appended to the brief or memorandum[.]” Id.

Just Appellate Courts? The language of HRAP Rule 35 does not confine this new body of persuasive authority to just the appellate courts. It appears that the rule extends to all proceedings. If there is a summary disposition that’s on point and filed after July 1, 2008, then perhaps it can be attached to a memorandum in support of a motion in any court. Then again, the word “proceeding” may be misleading. HRAP Rule 1 clearly states that “[t]hese rules govern all proceedings in Hawai‘i appellate courts[.]” Arguably, the new body of law is limited only to appellate courts. Does this mean that the rules themselves have no application outside of appellate proceedings? Is this sensible for the new HRAP Rule 35? Does this mean that a litigant who has found an unpublished gem has to wait for his or her case to go on appeal? This rule is too new to reveal an answer.

Justice Nakayama’s Dissent. Justice Nakayama disagreed with the amended rule. She believed that the new rule will only be an “undue burden and expense placed on those attorneys who actually practice appellate law[] by compelling them to spend additional hours in researching unpublished dispositions.” Justice Nakayama’s concern for appellate lawyers suggests that the new rule may be limited to courts of appeal. Justice Nakayama also was concerned that litigants with less resources will suffer because they will not have access to these unpublished dispositions.

Justice Acoba’s Dissent. Justice Acoba dissented from the amended rule for a completely different reason. He believed that all dispositions filed before and after July 1, 2008 should be cited. According to Justice Acoba, a starting point is arbitrary and inconsistent with the spirit of the new rule. Justice Acoba also addressed some of Justice Nakayama’s concerns. He noted that Hawaii’s appellate dispositions are available online.


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