Howard J. Bashman's appellate columns, etc.

The Law That Dare Not Speak Its Name

By Howard J. Bashman
Monday, April 12, 2004
Proposed Federal Rule of Appellate Procedure 32.1, which would allow advocates to cite unpublished and non–precedential opinions in all federal appellate courts, has turned out to be the most controversial amendment ever proposed to the federal appellate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(eleven numbered regional circuits plus the D.C. and Federal Circuits), nine already allow citation to their own unpublished and non–precedential rulings.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 Judge Kozinski's opposition is principally based on the supposition that by allowing unpublished opinions to be cited, non–precedential opinions would be magically transformed into binding precedent.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proceeds to argue that federal appellate judges would need to spend significantly more time writing and reviewing unpublished opinions, to ensure that they were of the same quality as published opinions.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.