State v. Bare

The recent North Carolina Court of Appeals decision in *State v. Bare*, COA25-467, serves as a timely reminder of the nuanced role of unpublished opinions in North Carolina jurisprudence. Filed on July 15, 2026, this opinion, by its very designation as "unpublished," does not constitute controlling legal authority, as stipulated by Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. While citation of such opinions is generally disfavored, the rule carves out specific exceptions for establishing claim preclusion, issue preclusion, or the law of the case. Practitioners must navigate these rules carefully, understanding both the limitations and the narrow circumstances under which an unpublished opinion may be cited for its persuasive value, provided proper procedural steps are followed.

The North Carolina Court of Appeals recently issued its decision in *State v. Bare*, an opinion designated as "unpublished" and filed on July 15, 2026. This designation immediately flags the decision as distinct from published opinions, carrying significant implications for its precedential value and permissible citation by legal practitioners. While the specific facts of *State v. Bare* are not the focus here, its status as an unpublished opinion brings to the forefront critical aspects of North Carolina appellate practice, particularly concerning the application and interpretation of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

For attorneys practicing in North Carolina, understanding the precise legal weight of an unpublished opinion is paramount. Unlike published decisions, which serve as binding precedent, unpublished opinions occupy a more ambiguous space within the legal hierarchy. This article will delve into the regulatory framework governing unpublished opinions in North Carolina, using *State v. Bare* as a contemporary example to illuminate the practical considerations and strategic decisions attorneys must make when encountering such rulings.

The treatment of unpublished opinions in North Carolina has evolved significantly over time, reflecting a broader trend across U.S. jurisdictions to manage the burgeoning volume of appellate decisions. Historically, prior to 2002, North Carolina's Rule 30(e)(3) explicitly prohibited the citation of unpublished decisions "for any purpose" in any other case, rendering them authority only in the case in which they were rendered. This strict prohibition aimed to reduce the logistical burden of publishing and storing an ever-increasing inventory of cases and to help attorneys identify leading cases on a point of law.

The current iteration of Rule 30(e)(3) represents a more flexible, albeit still cautious, approach. The rule now states that an unpublished decision of the North Carolina Court of Appeals "does not constitute controlling legal authority." The rationale for designating opinions as unpublished typically rests on the appellate panel's determination that the appeal involves no new legal principles, or that an opinion, if published, would have no value as a precedent. These decisions are still made publicly available, often on the court's website, and are reported by listing the case and decision in advance sheets and bound volumes of the North Carolina Court of Appeals Reports, albeit without a full published opinion.

The core of understanding *State v. Bare*'s legal impact lies in the interpretation of North Carolina Rule of Appellate Procedure 30(e)(3). The rule unequivocally states that an unpublished opinion "does not constitute controlling legal authority." This means that such a decision cannot be cited as binding precedent that lower courts or future panels must follow. Consequently, attorneys cannot rely on *State v. Bare* to compel a specific outcome in a subsequent case based solely on its holding.

Despite lacking controlling authority, Rule 30(e)(3) does not impose an absolute ban on citation. Instead, it declares that "citation of unpublished opinions in briefs, memoranda, and oral arguments in the trial and appellate divisions is disfavored." This "disfavored" status is tempered by specific exceptions. An unpublished opinion, such as *State v. Bare*, may be cited "for the purpose of establishing claim preclusion, issue preclusion, or the law of the case." These exceptions acknowledge that even non-precedential decisions can have direct legal consequences for the parties involved in that specific litigation.

Beyond these specific exceptions, the rule provides a pathway for citing an unpublished opinion for its persuasive value. If a party "believes, nevertheless, that an unpublished opinion has precedential value to a material issue in the case and that there is no published opinion that would serve as well," they may cite it. This allowance comes with a crucial procedural requirement: the party must serve a copy of the unpublished opinion on all other parties in the case and on the court to which the citation is offered. This service can be accomplished by including the copy in an addendum to a brief or memorandum. Furthermore, when citing, a party must clearly indicate the opinion's unpublished status. While some judges have expressed strong disapproval of the increasing frequency of such citations, emphasizing their non-precedential nature, courts themselves have occasionally cited unpublished opinions when they are "particularly relevant" or serve to "illuminate" a point, explicitly noting their non-binding nature.

The designation of *State v. Bare* as an unpublished opinion underscores a critical aspect of North Carolina appellate practice: the careful distinction between controlling legal authority and persuasive guidance. For practitioners, the primary takeaway is that while *State v. Bare* and other unpublished decisions do not establish binding precedent, they are not entirely without utility. Attorneys should exercise caution and strategic judgment when considering their use.

When an unpublished opinion directly addresses claim preclusion, issue preclusion, or the law of the case relevant to current litigation, its citation is expressly permitted and appropriate. For all other purposes, particularly when seeking to leverage an unpublished opinion for its persuasive value on a novel or complex legal issue, attorneys must strictly adhere to the procedural requirements of Rule 30(e)(3). This includes serving copies on all parties and the court, and clearly identifying the opinion as unpublished. While disfavored, a well-reasoned argument supported by a particularly on-point unpublished decision, especially in the absence of controlling published authority, can still serve to inform the court's understanding and potentially influence its decision. Practitioners should remain vigilant in monitoring amendments to the Rules of Appellate Procedure and judicial commentary on the use of unpublished opinions to ensure compliance and effective advocacy.