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Rule Allows Citing Of Unpublished Opinions as of 2007

Tony Mauro
Legal Times

04-13-2006

WASHINGTON, D.C. ó The U.S. Supreme Court yesterday adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The new rule takes effect unless Congress countermands it before Dec. 1.

The justices’ vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts nationwide. In some circuits these dispositions have no precedential value and cannot be cited.

“Unpublished” is a misnomer, since most of these opinions are available now on legal databases. But some federal judges have argued that if this category of opinions can be cited and used as precedent, they will take more time to decide and write, sharply increasing the backlog of cases. Many sentencing appeals, for example, are resolved by unpublished opinions.

The U.S. Courts of Appeals for the Second, Seventh, Ninth, and Federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it.

The change had been opposed by Second Circuit Chief Judge John M. Walker Jr., who considered unpublished opinions a valuable time-saving device for judges wading through heaving caseloads. Approximately 80 percent of the cases decided by the Second Circuit result in the issuance of unpublished opinions. (See NYLJ, Sept. 22, 2005.)

Judge Walker argued before the Judicial Conference in 2004 that judges should be able to devote their time to crafting opinions where the law is less than settled and where the bar and the district courts need enlightenment.

He also told the conference that the reaction of judges to the change would not be uniform. Some judges, he said, would choose to write longer unpublished opinions while others would reduce them to a bare minimum.

However, some Eastern and Southern District judges have expressed support for the rule change.

Under the new rule, circuits will still be able to give varying precedential weight to unpublished opinions, but they can no longer keep lawyers from citing them in the same way they cite rulings from other circuits or other authorities, such as law review articles.

“This change will facilitate lawyers’ representation of their clients, and it will facilitate the courts’ informed decision of future cases,” said Mark Levy, counsel at Kilpatrick Stockton in Washington and a member of an advisory committee that recommended the change. “It will also bring national uniformity to the process.”

At one point in the debate, Ninth Circuit Judge Alex Kozinski, the leading opponent of the rule change, said unpublished opinions were so designated for a reason: They are drafted “entirely” by law clerks and staff attorneys. He added, “When the people making the sausage tell you it’s not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway.”

The committee Judge Kozinski was referring to, the Advisory Committee on the Federal Rules of Appellate Procedure, was chaired at the time by then-Third Circuit Judge Samuel Alito Jr., and one of its members was then-D.C. Circuit Judge John Roberts Jr. Both supported the change while on the committee, and now that both serve on the Supreme Court, yesterday’s vote may have been unsurprising.

There was no indication in the Court’s order whether any justices dissented or did not participate.

The advisory committee’s original recommendation was to allow the citation of all unpublished opinions, past and future, but the Judicial Conference last September added an amendment to make the rule prospective, allowing the citation only of those rulings issued on or after next Jan. 1. The Court adopted that amendment in the rule change it promulgated yesterday.

Unpublished opinions first came into vogue in the 1960s as a time-saving device for appellate judges.

Though the propriety of an essentially secret judicial process has been debated for years, the catalyst for change came in 2000, when the late Eighth Circuit Judge Richard Arnold ruled in a routine case that stripping unpublished opinions of precedential value was unconstitutional because it gave judges a power not authorized by Article III of the Constitution.

ó Tony Mauro covers the U.S. Supreme Court for Legal Times, an ALM affiliate of the Law Journal. He can be reached at tmauro@alm.com. Mark Hamblett, mhamblett@alm.com, contributed to this article.