MEMORANDUM

DATE: October 12, 2002

TO: Advisory Committee on Appellate Rules

FROM: Patrick J. Schiltz, Reporter

RE: Item No. 01-01

At its April 2002 meeting, the Committee decided to move forward on the Justice Department’s proposal that a new Rule 32.1 be added to the Appellate Rules to impose a uniform rule regarding the citation of non-precedential opinions. Although the Committee supported this proposal in principle, members raised a number of concerns about the specifics of the Department’s draft rule. I agreed to take a look at this issue and prepare a revised draft.

Attached please find three alternative drafts of a proposed Rule 32.1:

Alternative A is the most sweeping. It specifically authorizes courts to issue non-precedential opinions and permits their citation without qualification.

Alternative B is the second most sweeping. Unlike Alternative A, it addresses only the citation of non-precedential opinions. However, unlike Alternative C, it permits the citation of such opinions without qualification.

Alternative C is the least sweeping. It addresses only the citation of non-precedential opinions, and it permits such citation only in limited circumstances. (Alternative C is, in essence, the Justice Department’s original proposal.)

I have prepared these alternative drafts for a couple of reasons. First, the issue of non-precedential opinions has been a recurring one during the recent history of the Committee. It may be helpful to get all issues — and all alternatives — on the table, so that this issue might be put to rest for at least a few years. Second, the Committee may want to publish a broader proposal than it anticipates approving. This would allow for a full public airing of all of the issues, and it would give the Committee room to "compromise" down the road. Publishing Alternative A might also give comfort to those judges who could be persuaded to support a rule on citation (Alternative B or C), but for their fears that such a rule is a first step toward abolishing non-precedential opinions altogether.