A couple things in the state appeals court opinion on the Craig case do seem to underscore the idea that unpublished status means limited future use as precedent. The first words of the opinion, at the top of page one before even the name of the case or the court, are:

“This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).”

So even though the case is more or less as accessible online at the court’s website as a published case is, it comes with a strong warning at the outset. And in a footnote on page 6, Chief Judge Toussaint (who wrote the opinion) cites that same state statute to reject Craig’s claim that case law says the term “other” only applies when there are more than two in the room:

“Appellant cites unpublished opinions of this court disagreeing with the C.S.K. analysis. But unpublished opinions are not precedential. Minn. Stat. § 480A.08, subd. 3 (2006).”

Legal points aside (I’m not a law student or a lawyer, though I did consult one or two for this post), I mainly meant to point out the irony in the opinion on Craig’s case being unpublished, after all the concern in the public debate and the media that the senator would receive special treatment one way or the other. Unpublished puts this opinion in the quivers of those who would say the judges treated him differently than they intend to treat average people in similar circumstances in the future.

Which leads to my second point: in this modern age, the difference between published and unpublished status and their value is shrinking. Even unpublished cases are available online (as the provided link obviously illustrates), so if I, as an attorney, were to find an unpublished case that helped me in some way, I might at least borrow some of the reasoning or analysis from it. Some courts have specific rules against the use of unpublished cases, but other courts at least are open to hearing why an unpublished case should be used as a persuasive authority (certainly one would not present it as precedential authority). A practicing attorney here in the state could probably tell me I’m full of beans here, but in school we’re hearing that occasionally unpublished cases are being used in some places. Of course, being able to use it and that being a wise lawyering tactic are two different things.

Last point: Even if the court expressly tries to disclaim a case as being non-precedential, that’s not necessarily how it will be treated in the future. I think about Bush v. Gore as a great example of this, where the court tried to say the holding was limited to only the Bush-Gore dispute, but it has gone on to be used a lot by attorneys since it was handed down. (On the other hand, there is little doubt that designation of an appellate decision as unpublished IS more likely to result in it simply being ignored going forward.)

A little sunshine and good fellowship, away from his own vicious persona
and the people who feed into it just might be enough to mellow him out
long enough to relax, be himself, and turn into a better human being.

This is a waste of our courts’ time and our taxpayers money.

He should be required to pay the court costs, go back to Idaho, and stay there.