I remember that the rationale for the adoption of Rule 23 was that law books were getting too expensive to publish with the great number of appellate opinions coming from the courts and that the lesser important opinions would be non-published to save the expense of including them in publications. However, since there is no official publication of the court opinions now and with all opinions equally accessible by internet whether they are "published" or "nonpublished," there is no clear reason not to make Rule 23 opinions available. When I try to explain it to other lawyers or to clients, I simply say that a published opinion is a good opinion and a Rule 23 opinion is an opinion the appellate court is not proud of and would prefer not to be used for precedent. I can think of no other reason why every opinion can't be cited.

I agree there should be no prohibition against citing Rule 23 cases. I have a clearly relevant decision that was declared a Rule 23 case. It seems to me to be a well written and logical extension of the prior precedents upon which it relied.

I am also curious, has anyone encountered any form of sanction when trying to direct a trial or an appelllate court to a Rule 23 case?

Judges see it as a way to bury lousy opinions from public scrutiny.

While I agree with Mr. Zumstein that too often "a published opinion is a good opinion and a Rule 23 opinion is an opinion the appellate court is not proud of and would prefer not to be used for precedent."

The justification for having two types of appellate opinions has long ago passed. If the case truly involves no new issue and is governed by clearly applicable precedent, the appellate court should be able to issue a one-line per curium order: "The trial court is affirmed [or reversed]; see Smith v. Jones, etc." It there is a written explanation of the case and the court's ruling, that decision should be fully public and usable precedent.

We can now cite the ruling of a federal trial court in Alaska or the decision of the Iowa Court of Appeals, but we can't cite a case decided by the Illinois Appellate Court if it's in the from of a Rule 23 Order. That is just wrong.

I would think it to be, technically, not violative of the Rules to say something like this:

The logic cannot be better expressed than it was by Judge John Smith in an unreported case Able v. Baker, [cite?] in which he stated: "Blah blah blah."

That does not seem to be a citation to authority, but merely a quotation of an argument.

What do others think?

I do not have the statistics handy, but what I heard was that a remarkable number of the PLA's that have been granted included Rule 23 Orders. This really speaks against the argument that they are used only for well settled law.
I would like to see the ISBA encourage the Supreme Court to repeal or substantially change Rule 23.