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SUPREME COURT OPENS DOOR FOR CITATION OF UNPUBLISHED OPINIONS – BUT DEBATE LIKELY TO CONTINUE

By Joseph A. Kuiper1


The long-standing controversy over the citation of unpublished opinions took a sudden turn in April when the Supreme Court adopted an amendment to the federal rules to permit the citation of such decisions. The rule was recommended to the Supreme Court by the Judicial Conference of the United States. At the time, now-Chief Justice John G. Roberts and Justice Samuel A. Alito were members of the Appellate Rules Committee that recommended the change. The new rule applies prospectively and will allow citation of unpublished decisions issued on or after January 1, 2007.

Unpublished opinions originated in the 1960s as a space- and time-saving device for the federal courts. Since that time, the use of such decisions has grown dramatically. Based on statistics collected by the Administrative Office of the U.S. Courts, in 2005 approximately 82% of the decisions issued by the federal circuit courts were unpublished.2 The rate of unpublished decisions varies by circuit, from a high of 92% in the Fourth Circuit to a low of 56% in the Seventh Circuit.3 The Sixth Circuit lies somewhere in the middle, with approximately 84% unpublished.4

Four circuit courts—the Second, Seventh, Ninth, and Federal Circuits—currently ban the citation of unpublished decisions, except in unusual cases. The remaining nine permit such citations, although some courts, including the Sixth Circuit, have rules discouraging it.5

The new rule will appear as Federal Rule of Appellate Procedure 32.1 and will take effect December 1, 2006 unless Congress decides to veto it. As adopted by the Supreme Court, it reads:

Rule 32.1. Citing Judicial Dispositions

(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:

(I) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and

(II) issued on or after January 1, 2007.

(b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.

The amendment is one of the most controversial ever made to the federal appellate rules. The Appellate Rules Committee received more than 500 comments on the proposal, the majority of which opposed it. Those in favor of the change argued that rules barring the citation of unpublished opinions reduce courts’ accountability by permitting the issuance of decisions that cannot be cited and are not precedential. They argued that such rules tell parties “we may have decided this issue today, but don’t try to tell us about it tomorrow.”

Those opposed to the amendment argued mainly from the standpoint of judicial efficiency. Some of the most vocal critics came from the Ninth Circuit, where heavy caseloads make the use of unpublished decisions widespread. In a 22-page letter to the Committee, Judge Alex Kozinski noted that unpublished opinions are often drafted entirely by law clerks or staff attorneys. He argued that if parties were allowed to cite unpublished opinions, judges would need to spend significantly more time drafting and editing them, which would take time away from the important cases that justify publication. “Given the press of our cases, especially screening cases, we simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent,” he wrote.

The new rule does not completely resolve the controversy surrounding unpublished decisions. For starters, some will surely question why the rule applies only to decisions issued on or after January 1, 2007. This limitation was reportedly added as a compromise to secure passage of the rule. However, there is no logical basis for distinguishing between opinions issued before January 1, 2007, and those issued after. Courts and attorneys will also likely find the limitation confusing in practice, since unpublished opinions issued before the cutoff will continue to be governed by the local rules of each circuit.6

Another area of continuing controversy relates to courts’ ability to designate unpublished opinions as non-precedential. Some argue that this practice violates Article III, and at least one federal court has so held. In Anastasoff v. United States, the Eighth Circuit held, in an opinion by the late Judge Richard Arnold, that federal courts have no constitutional authority to decide which of their decisions are precedential and which are not.7 As the court saw it, “Inherent in every judicial decision is a declaration and interpretation of a general principle or rule of law. This declaration of law is authoritative to the extent necessary for the decision, and must be applied in subsequent cases to similarly situated parties.”8 The court believed these principles were inconsistent with allowing courts to designate decisions as non-precedential: “At bottom, rules like our Rule 28A(i) assert that courts have the following power: to choose for themselves, from among all the cases they decide, those that they will follow in the future, and those that they need not. . . . [S]uch a statement exceeds the judicial power, which is based on reason, not fiat.”9

The source of the Eighth Circuit’s criticism in Anastasoff is not addressed by the amendment to Rule 32.1. As the Committee Notes explain, the Rule “addresses only the citation of federal judicial dispositions that have been designated as ‘unpublished’ or ‘non-precedential.’ . . . It says nothing about what effect a court must give to one of its unpublished opinions or to the unpublished opinions of another court.”10 Thus, while courts can no longer ban the citation of unpublished decisions, they can continue to treat them as non-precedential. It remains to be seen what course each of the circuits will take on this issue. Assuming some or all of the circuits continue to treat the decisions as non-precedential, this part of the debate will likely continue.

Finally, the change to the federal rules will likely reignite debate of no-citation rules at the state level. A number of states—Michigan excluded11—have rules banning the citation of unpublished decisions. As at the federal level, these rules are highly controversial, and have been frequently revisited by legislatures and rules committees agonizing over whether to change them. A change at the federal level could well be influential in finally bringing about change in these states.

Endnotes

1 Joe Kuiper is a partner at Warner Norcross & Judd LLP, where he focuses his practice on trial and appellate litigation.

2 See Statistics Div., Admin. Office of the U.S. Courts, 2005 Annual Report of the Director: Judicial Business of the United States Courts, 42 tbl. S-3 (2005).

3 See id.

4 See id.

5 See 6 Cir. R. 28(g) (“Citation of unpublished decisions in briefs and oral arguments in this Court and in the district courts within this Circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case. If a party believes, nevertheless, that an unpublished disposition has precedential value in relation to a material issue in a case, and that there is no published opinion that would serve as well, such decision may be cited if that party serves a copy thereof on all other parties in the case and on this Court.”).

6 See Judicial Conf. of the United States, Committee on Rules of Practice and Procedure, Committee Notes to Fed. R. App. P. 32.1.

7 See 223 F.3d 898, vacated as moot on other grounds 235 F.3d 1054 (8th Cir. 2000).

8 Id. at 899-900.

9 Id. at 904. The decision in Anastasoff was vacated as moot by the Eighth Circuit on other grounds, and is therefore no longer binding in that Circuit. See 235 F.3d 1054 (8th Cir. 2000). Additionally, at least two federal courts have declined to follow Anastasoff. See Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001); Symbol Technologies, Inc. v. Lemelson Medical, 277 F.3d 1361 (Fed. Cir. 2002).

10 Judicial Conf. of the United States, Committee on Rules of Practice and Procedure, Committee Notes to Fed. R. App. P. 32.1 (emphasis in original).

11 Michigan permits citation of unpublished decisions, but only for persuasive value. See Michigan Court Rule 7.215(C)(1) (“An unpublished opinion is not precedentially binding under the rule of stare decisis. A party who cites an unpublished opinion must provide a copy of the opinion to the court and to opposing parties . . . . ”).

[roybean]

This would be a good thing if it comes to be.