More than half of the Montana Supreme Court’s written opinions in 2022 carry no precedential value and cannot be cited as binding authority to a Montana court. The same is true for opinions issued in 2021, 2020, and 2019. Thousands of opinions—tens of thousands of pages, filled with the Court’s legal reasoning, factual applications, policy judgments, and practical advice—are unusable. Montana is not alone in this phenomenon as unpublished opinions constitute the majority of opinions in many other juris- dictions around the country. Consequentially, this outdated practice is impacting the law in Montana and throughout the country. Nonpublication was an innovation meant to deal with a uniquely judicial problem—every year it takes more than 100,000 pages of paper to record the decisions flowing out of courts across the United States. The non- precedential nature of most unpublished cases masks the effect such decisions have on a body of law. As a result, the consequences of such opinions are challenging to ascertain. This research tracks the rise of unpublished opinions in Montana through statistical data. Then, using illustrative examples, this comment argues that despite their nonprecedential moniker, unpublished cases can have significant unintended consequences. Part II of this comment discusses the history of unpublished opinions at the federal and state levels. Part III uses Montana Supreme Court data to illustrate the prevalence of unpublished opinions in Montana and highlight trends in the Court’s practices. Part IV examines the effect of unpublished opinions through two case studies and discusses potential unquantifiable issues. Part V concludes this comment and recommends further research on this topic in Montana.
Blake Koemans, Comment, The Big Sky Shadow Docket: Noncite Opinions and the Montana Supreme Court, 84 Mont. L. Rev. 2 (2023).