Court Committee: Courts Should Allow Citing Unpublished Opinions
BY STEPHANIE FRANCIS CAHILL
California lawyer Kenneth Jay Schmier is a longtime activist in favor of citing unpublished opinions. He was even arrested in 1998 for asking a question about the issue at a "meet the judges" event held in Marin County. Audience members were asked to give written questions to the judges, but Schmier didn’t think his was adequately answered. So at the end of the evening, he stood up to ask it again. He was then charged with disturbing the peace and resisting arrest. Both charges were later dropped.
"I wanted to know how it was possible that in a country that values free speech and the right to petition the court, it could be illegal to bring to an appellate court a case that has already been decided," Schmier says.
A lot of lawyers, including some judges, are asking the same question. Some circuits freely allow the citation of unpublished opinions. Some circuits don’t. An advisory committee to the Administrative Office of the U.S. Courts says a uniform rule should be established.
"I think the committee has taken the first step in getting rid of a rule that is an extraordinarily bad idea," says Schmier, who attended a Nov. 18 meeting of the Committee on Appellate Rules in San Francisco. The committee decided all circuits should allow the citation of unpublished opinions. Judges should have discretion over a particular opinion’s weight.
Current discrepancies among the circuits are problematic, committee members say.
"Imposing a uniform rule cannot harm the administration of justice; to the contrary, it will expand the sources of insight and information that can be brought to the attention of judges and make the entire process more transparent to attorneys, parties, and the general public," the committee wrote. "At the same time, a uniform rule will relieve attorneys of several hardships. Attorneys will no longer have to pick through the conflicting no-citation rules of the circuits in which they practice, nor worry about being sanctioned or accused of unethical conduct for improperly citing a nonprecedential opinion."
The proposal, titled Rule 32.1, is in its early stages. If it survives various committees with little conflict, it could be before the U.S. Supreme Court by April 2005, predicts Patrick J. Schiltz, the committee’s reporter. If the court approved the proposal, it would go to Congress, which would have until December 2005 to veto it.
"It will be very controversial, and rules that are very controversial rarely take the quickest path," says Schiltz, an associate dean at Minnesota’s University of St. Thomas School of Law.
Historically, judges have opposed the citation of unpublished opinions. Typically, such opinions cover old ground and are shorter and less thorough than their published counterparts. Judges sometimes use them because they are less time-consuming to write than "citable" rulings.
"The ability to issue nonprecedential opinions is a matter of survival for many courts of appeals, who have seen their workload increase dramatically faster than the number of judges available to handle the workload," the committee report states. "Issuing nonprecedential opinions takes less time than issuing precedential opinions, because judges can spend less time explaining their conclusions."
However, Schiltz says the bench’s position on allowing citation to such opinions is changing. Four judges serve on the committee that issued this proposal.
"There’s been at least three surveys on judges on this issue, all of which have shown progressively more support," he says. He adds that most lawyers want a uniform rule that allows the citation of unpublished opinions.
"Attorneys tell us there’s a lot of game-playing," Schiltz says. "They will cite a law review article that discusses the unpublished opinion, rather than the opinion itself, or a published opinion that cites the unpublished opinion." No circuit completely bars the citation of unpublished opinions, but in circuits that are more restrictive, lawyers often try to find ways around the rule.
"They get frustrated by the idea that they can’t bring to the court’s attention the court’s own word," Schiltz says.
©2002 ABA Journal
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