Paffel v. Paffel , 48 Utah Adv. Rep. 12 ( 1986 )

ZIMMERMAN, Justice

(concurring):

I join the majority in affirming the trial court. However, I write separately to comment on one point.

In making its ruling, the Third District Court relied on Rost v. Rost, No. 15757 (Utah Jan. 23, 1979), an unpublished opinion of this Court. This highlights what I think is an inadvisable practice — issuing unpublished opinions. In my view, if a case deserves being disposed of by written opinion, that opinion should be published. If a decision truly adds nothing to the law, it should be disposed of from the bench or by a short written order that may be informative to the parties but to no one else. I can discern no sound policy that is being served by the use of unpublished opinions, but I can discern several that are being subverted.

For example, our decision in Rost v. Rost may have been sound; however, the unpublished opinion by which it was rendered became part of a secret body of law, available only to those who assiduously collect our slip opinions. Rost v. Rost and other opinions comprising this body of law can be brought to the attention of trial judges only by those aware of them. This gives special advantage to those who do more than keep up their subscription to our official reports.

There is an additional and more insidious problem presented by unpublished opinions: their use may encourage a lack of candor on the part of attorneys and lead to trial court rulings not consistent with our case law. The assumption is normally made by judges that if one party advocates a position and there is contrary authority, that authority will be cited by opposing counsel. This assumption is probably shared by all attorneys, a fact that compels them to be candid about the law, because they know that if they ignore adverse authority, their omission almost certainly will be revealed.

This whole set of operational assumptions is undermined by the use of unpublished opinions. When one lawyer is privy to our unpublished opinions and another is not, the first lawyer may properly conclude that he can use those unpublished opinions that support him and ignore those that do not, all with a minimal risk of exposure. I think it very unwise for us to engage in a practice that may serve to lessen the compulsion on lawyers to be candid with courts.

It is time we stopped the practice of using unpublished opinions.