If the Court considers the language or legal analysis ... in [a] vacated ... opinion, regardless of how well reasoned that decision or language may be, any decision rendered is subject to challenge or criticism on the grounds that it was based in part on language, reasoning or analysis from an opinion that had been vacated. (1)
Like their counterparts in Georgia, (2) Idaho; Illinois, (4) Indiana, (5) Louisiana, (6) Michigan, (7) Nebraska, (8) Ohio, Oregon, (10) and Wisconsin, (11) the Arizona state courts hold that vacated judicial opinions have no precedential value. (12) Although this characterization seems overly broad, (13) and is arguably even somewhat misleading, (14) the same view has been expressed by a number of federal appellate courts. (15)
Nevertheless, the courts are not uniform in their treatment of vacated opinions. (16) For example, several courts have indicated that vacated opinions retain their precedential value in some circumstances. (17) Even in jurisdictions in which vacated opinions cannot be cited as precedent (18) (at least in the stronger, binding sense), (19) litigants presumably could cite them for some other purpose, (20) including their ability to persuade the court in a subsequent case. (21)
Under a procedural rule adopted by the Ohio Supreme Court, for example, vacated and therefore non-precedential Ohio appellate court opinions issued after May 1, 2002, can "be cited as legal authority and weighted as deemed appropriate" in subsequent Ohio state court cases. (22) However, there is no comparable rule addressing whether--or when--vacated appellate opinions can be cited in Arizona state court litigation, (23) and the analogous authority in other jurisdictions is conflicting. (24)
This article attempts to shed light on this important and unsettled issue. (25) Although the article focuses on the Arizona courts' treatment of vacated opinions, (26) the analysis should be useful in other states as well. (27) This is particularly true in states that, like Arizona, (28) have adopted appellate procedural rules analogous to the Federal Rules of Appellate Procedure, (29) one purpose of which is to promote uniformity of appellate procedure throughout the country. (30)
Part II of the article contains a discussion of the courts' general view of the precedential value of vacated opinions. In Part III, the author discusses the persuasive value of opinions vacated for reasons that do not cast doubt on the propositions for which they are cited. Part IV considers the propriety of citing vacated opinions for propositions that were repudiated by the vacating court. In Part V, the author discusses the "depublication" of appellate court opinions, (31) and the impact of this controversial practice on the citation of vacated opinions. The author ultimately concludes that a vacated Arizona appellate court opinion--indeed, a vacated opinion issued by any court (32)--should be citable for its persuasive value, (33) as long as the citing party advises the court of the fact that the opinion was vacated.
II. VACATED OPINIONS ARE NOT "PRECEDENT."
As Arizona's appellate court of last resort, (34) the Arizona Supreme Court can affirm, reverse, or modify a decision of the state's intermediate appellate court, (35) the Arizona Court of Appeals. (36) Like other state courts of last resort, (37) the Arizona Supreme Court also has the authority to vacate opinions issued by the state's intermediate appellate court, (38) which it often does when it disagrees with the lower court's reasoning. (39) When the supreme court exercises its authority to vacate an Arizona Court of Appeals opinion, (40) the vacated opinion is no longer considered precedential, (41) and courts in subsequent cases are unlikely to be persuaded by (or perhaps even willing to consider) (42) the court of appeals' repudiated reasoning. (43) In Stroud v. Dorr-Oliver, Inc., (44) for example, the appellant cited an Arizona Court of Appeals opinion, Santanello v. …