Panel OKs Plan to Cite Unpublished Decisions
The recommendation, approved 7-1, follows an experimental program initiated by
the 9th Circuit.
By Pamela A. MacLean
Daily Journal Staff Writer
SAN FRANCISCO - A federal rules
committee has overwhelmingly recommended a controversial rule that would permit
lawyers to cite unpublished decisions in appeals for their "persuasive
value."
The proposed new rule calls for the
creation of a uniform policy in federal circuits nationwide. The 7-1 vote, with
one abstention, came from an advisory committee on appellate rules meeting in
San Francisco.
"We are in the illumination
business," said U.S. District Judge Stanwood R. Duval Jr. of New Orleans
in expressing his support for the proposal.
The change, if adopted, is likely to
have significant ramifications for appellate practitioners. The 13 circuit
appeals courts together issue tens of thousands of non-precedential decisions
annually, according to the committee.
It is likely to be at least a year
before the rule would be in place. In the meantime, the 9th Circuit Court of
Appeals has proposed a 30-month extension on its existing experiment allowing
citation of unpublished decisions for limited purposes.
If the committee's proposal survives
public comment and review by another committee, it must then win approval of
the U.S. Judicial Conference, which draws half its members from chief judges of
various circuits.
John G. Roberts Jr., of Hogan &
Hartson in Washington, D.C. and a nominee for the D.C. Circuit Court of
Appeals, said he favors citation of unpublished decisions. "Courts ought
to be able to calibrate how much weight they may want to give unpublished
decision."
The lone dissenter, San Francisco
attorney Sandy Svetcov, of Milberg Weiss Bershad Hynes & Lerach, said there
are plenty of good reasons to avoid a national rule.
"Citation may prove too much by
suggesting [that] two judges on the panel agree with the rationale when they
may only have signed on to the result," he said.
Ironically, the abstaining vote came
from Douglas Letter, the representative of U.S. Solicitor General Theodore B.
Olson, even though the citation change was originally proposed by his office.
Letter said 9th Circuit Judge Alex
Kozinski, one of the most outspoken opponents of expanded citation, called
Olson to express concern about the "significant workload problems" it
would create for judges.
Emeryville attorney Ken Schmier, who
has lobbied and sued since 1996 to eliminate barriers to citation, said after
the vote, "I'm very pleased there is official recognition that the
judiciary has a problem and they are taking steps to resolve it."
Most circuits have moved to change
their policies over the last year. Citation based on "persuasive"
value is permitted in nine of the 13 circuits, according to Stephen R. Barnett,
of Boalt Hall School of Law.
It is still forbidden in the 2nd,
7th and Federal Circuits while the 9th allows it only under its experimental
program, according to Barnett.
The proposed rule states, in part,
that an opinion designated as non-precedential or not for publication may be
cited for its persuasive value. It also states that no restriction may be
imposed on a decision designated non-precedential that is not "generally
imposed upon the citation of other sources."