Panel OKs Plan to Cite Unpublished Decisions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- A federal rules committee has overwhelmingly recommended a controversial rule that would permit lawyers to cite unpublished decisions in appeals for their "persuasive value."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 The 13 circuit appeals courts together issue tens of thousands of non-precedential decisions annually, according to the committee.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the 9th Circuit Court of Appeals has proposed a 30-month extension on its existing experiment allowing citation of unpublished decisions for limited purposes.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of Hogan & Hartson in Washington, D.C. and a nominee for the D.C. Circuit Court of Appeals, said he favors citation of unpublished decisions. "Courts ought to be able to calibrate how much weight they may want to give unpublished decision."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."