Proposed
Federal Rule of Appellate Procedure
32.1, which would allow advocates
to cite unpublished and non-precedential
opinions in all federal appellate
courts, has turned out to be
the most controversial amendment
ever proposed to the federal
appellate rules.
The Appellate Rules Advisory
Committee of the United States
Courts has received more than
500 comments concerning this
proposed rule, and the bulk
of those comments oppose the
amendment. The committee is
scheduled to meet in Washington,
DC on Tuesday, April 13, 2004
to consider whether to press
ahead with the amendment, to
hold the matter in abeyance
for more study, or to scrap
the proposal altogether.
Seventh Circuit Judge Frank
H. Easterbrook submitted a written
comment supporting the proposed
new rule, and his letter to
the committee notes that, of
the thirteen U.S. Courts of
Appeals (eleven numbered regional
circuits plus the D.C. and Federal
Circuits), nine already allow
citation to their own unpublished
and non-precedential rulings.
In the words of Law Professor
Stephen R. Barnett of the Boalt
Hall School of Law at the University
of California, Berkeley, "The
citadel of no-citation rules
is falling."
The vast bulk of the proposed
rule's opposition comes from
within the geographical territory
of the U.S. Court of Appeals
for the Ninth Circuit. The proposed
rule's most vociferous opponent
appears to be Ninth Circuit
Judge Alex Kozinski. Judge Kozinski's
letter opposing the proposed
rule is twenty-three pages long,
and it provides the most exhaustive
recitation of the reasons offered
for why the proposed rule should
be rejected.
Although the proposed new rule
would not prevent any U.S. Court
of Appeals from continuing to
designate decisions as non-precedential,
the rule would allow all decisions,
whether precedential or not,
to be cited in briefs filed
with the court. Judge Kozinski's
opposition is principally based
on the supposition that by allowing
unpublished opinions to be cited,
non-precedential opinions would
be magically transformed into
binding precedent.
Building on that supposition,
Judge Kozinski proceeds to argue
that federal appellate judges
would need to spend significantly
more time writing and reviewing
unpublished opinions, to ensure
that they were of the same quality
as published opinions. As a
result, the quality of all decisions
would diminish, and appellate
judges would be more tempted
than ever to affirm easy cases
without any explanation. Judge
Kozinski further argues that
if citations to unpublished
opinions are allowed, lawyers
would face the daunting task
of having to review not only
published but also all unpublished
rulings to determine if they
contained anything helpful to
the client.
Judge Kozinski is one of the
shining stars of the federal
judiciary, and I usually find
his logic to be impeccable,
but in this instance his reasoning
fails to persuade. In none of
the nine federal appellate courts
that allow citation to their
own unpublished opinions has
even one of those courts been
forced, simply as a result of
allowing such citations, to
accord precedential status to
such rulings. Moreover, I have
seen no indication whatsoever
that unpublished and non-precedential
opinions issuing from those
federal appellate courts that
permit citation require or receive
more attention and time from
the judges serving on those
courts than such opinions received
before citation to them was
allowed.
Judge Kozinski's objections
to the proposed new rule, and
the similar objections voiced
by so many of the other individuals
who submitted comments in opposition,
unfortunately are based on a
mistaken premise. If the people
who submitted these comments
truly cannot conceive of how
citation to unpublished opinions
can be allowed without conferring
precedential status on unpublished
opinions, they need merely look
at the actual experiences of
the federal appellate courts
that already allow their own
unpublished decisions to be
cited.
One of the strongest reasons
in favor of the proposed new
rule is expressed in the comment
that Seventh Circuit Judge Kenneth
F. Ripple submitted. Judge Ripple,
based on his many years of experience
as a federal appellate judge,
acknowledges that court employees
assisting in the preparation
of appellate decisions regularly
rely on the Seventh Circuit's
unpublished dispositions. If
the decision-makers are going
to be relying on unpublished
and non-precedential opinions,
should not the parties have
the chance to provide their
perspectives on whether those
decisions suggest the proper
outcome in the currently-pending
case?
Stated simply, if a lawyer finds
a clearly-applicable non-published
ruling, one can be certain that
so will the appellate court.
And soon it will be easier than
ever to find unpublished federal
appellate court rulings. The
E-Government Act of 2002 will
require all federal appellate
courts to provide access over
the Internet to their own unpublished
opinions.
Because unpublished opinions
will not miraculously transform
into precedent simply by being
cited in a brief filed in a
federal appellate court, allowing
such citations will not meaningfully
increase any party's cost of
legal research. Lawyers are
under no obligation to conduct
research into authorities that
may be persuasive to, but are
not binding on, the court in
which an appeal is pending.
Because unpublished opinions
will remain non-precedential
even if the proposed new rule
is adopted, attorneys will be
free to conduct any amount (including
no amount) of legal research
into such rulings.
If one reads between the lines
of Judge Kozinski's lengthy
comment in opposition to the
proposed new rule, it seems
obvious that the Ninth Circuit
may have at least one legitimate
reason to oppose the new rule.
As a result of that court's
crushing caseload, the Ninth
Circuit has come to rely to
a greater extent than any other
federal appellate court on staff
attorneys in the process of
drafting non-precedential opinions.
Judge Kozinski's letter makes
clear that it is possible in
the Ninth Circuit for an unpublished
opinion to issue in a case in
which all three judges on a
panel agree on the result but
none of the judges agrees with
the unpublished opinion's reasoning.
Yet if that is so, one wonders
how the parties to the appeal
benefit from receiving an unpublished
opinion that is supposed to
serve as, but in fact is not,
an explanation of the basis
for the court's ruling.
Notwithstanding the fact that
the objections raised to proposed
Federal Rule of Appellate Procedure
32.1 are unconvincing and illogical,
there still may be good reason
why the Appellate Rules Advisory
Committee may decide not to
press forward with the new rule.
Opposition to the proposed rule,
while not widespread across
the vast majority of federal
appellate courts, does appear
to be deeply held in those four
federal appellate courts that
currently prohibit citations
to their own unpublished opinions.
The Appellate Rules Committee
reasonably could conclude that
rule changes of this nature,
which are desirable but not
critically urgent, should not
be enacted over the vociferous
objections of so many judges
and practitioners, even if such
objectors constitute only a
small minority of those to whom
the proposed rule would apply.
The reasons in favor of a nationwide
rule governing citation to unpublished
and non-precedential opinions
are as persuasive as they ever
were, and the Appellate Rules
Advisory Committee has previously
endorsed this proposed rule
by an overwhelmingly lopsided
vote. But even if those opposed
to proposed Rule 32.1 are allowed
to exercise what amounts to
a heckler's veto to derail the
proposal, it will not be a major
setback. The current trend clearly
favors abolition of no-citation
rules, lending confidence to
the hope that those who oppose
citation to unpublished and
non-precedential opinions will
eventually recognize the error
of their ways even in the absence
of a nationwide rule.
This
article is reprinted with permission
from the April 12, 2004, issue
of The Legal Intelligencer ©
2004 NLP IP Company.