Legal research can be done for free and easily through Google Scholar, but what does it mean when a PA superior court opinion is marked “non-precedential”?
Your spell checker — if it’s like mine — won’t recognize the word “precedential” and will suggest “presidential,” which is totally different.
A non-precedential opinion is one that has no binding effect on future cases.
Some Legal History
Our legal system relates back to merry ol’ England. The “common law” system started eons ago from medieval practices. English knights would roam the country side, collecting taxes from villages in the England and colonies abroad. The knights were the highest authority in the land, so when a dispute arose, the knight was tasked with solving it.
Knights would listen to both sides, make a decision, and keep scrolls of opinions, to resolve future disputes, as some disputes were common. The latin term for this is stare decisis, which means “to stand by things decided.”
This is the basis for modern day legal “precedence.”
Parenthetically, in additional to case law or “common law,” our law in the US also comes in the form of rules (or statutes) passed by our legislature, which include, for example, the Uniform Commercial Code (UCC), governing the sale of goods. The UCC originated in Germany and has since been adopted in various forms by countries throughout the world.
More details about the interesting origins of our various laws can be found here (Sir William Blackstone Commentaries on the Laws of England Oxford, 1765-1769).
But I digress.
Back to the common law and modern legal “precedence.”
Bad Cases Make For Bad Law
Some cases have facts that are so unusual such that any rule or decision based on those facts would have virtually no application in the future. This is why law professors tell law students: “bad cases make for bad law.”
Too Many Appellate Decisions
Our superior court in Pennsylvania is required to hear every appeal of every legal ruling by a lower court judge. So, for example, every time a judge rules on an objection during a trial, that’s a legal ruling. Each trial can have dozens — and even hundreds — of rulings. Each can be appealed to the superior court. Hearing every appeal is mandatory for superior court, unlike an appeal to next level up, the highest court in PA: the Pennsylvania Supreme Court, which is discretionary.
The 15 judge superior court is not so lucky, having a mandatory docket, but it does its best. It rarely sits with all judges listing (also called “en banc”). Rather, the superior court divides itself into “panels” of three superior court judges, sitting in Philadelphia, Harrisburg, or Pittsburgh.
These panels churn out a high volume of opinions.
With this volume of cases, it makes it nearly impossible for every decision to be consistent with every other. Hence, there is logic to making many superior decisions “non-precedential” or non-binding.
So Why Are “Non-Precedential” Opinions Published At All?
Some opinions are well-reasons and should be published and cited for the sound legal reasoning, even if the decision is not binding.
This happens often. For example, every time a trial court (the lowest level judge) render’s an opinion, it’s not binding on any appellate court, because the trial court sits lower than the appellate court. But it is fairly common for an appellate court to cite to the reasoning of a lower court opinion, as having persuasive value, even if the trial judge’s conclusions have no precedence over the appellate courts.
So what happens when the superior court tells us its opinion is non-precedential? Does the “non-precedential” superior court opinion have persuasive value, at least?
This depends on when the non-precedential opinion was handed down.
Timing is Everything
Our Pennsylvania Code tells us exactly how and when non-precedential superior court opinion may have application:
Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). An unpublished memorandum decision filed prior to May 2, 2019, shall not be relied upon or cited by a Court or a party in any other action or proceeding, except that such a memorandum decision may be relied upon or cited (1) when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel, and (2) when the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in a prior action or proceeding. When an unpublished memorandum filed prior to May 2, 2019, is relied upon pursuant to this rule, a copy of the memorandum must be furnished to the other party and to the Court.
210 Pa. Code § 65.37 (Emphasis added).
So there you have it.
The Key Date
May 1, 2019 is the magic date. All non-precedential opinions prior to that date are virtually non-existent, except at to the litigants in those cases. For everyone else, the non-precedential opinion “shall not be relied upon or cited by a Court or a party in any other action or proceeding.”
That said, a non-precedential opinion issued on May 1, 2019 or beyond may be referenced by other litigants in other cases for persuasive value, only. But you have to attach a copy of the opinion to your court papers citing it.
Taaaaa Daaaaa!
So now, as you peruse Google Scholar, and see opinions marked “non-precedential,” you’ll have a better idea of what that means, and how knights collected taxes.
And you thoughts the IRS was bad. Imagine your tax collector was also your judge for all disputes!
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