The Ninth Circuit and the No-Cite Rule
Stephen R. Barnett
The Recorder
04-21-2006


The U.S. Supreme Court on April 12 approved a new federal rule of
appellate procedure Rule 32.1 requiring all federal courts to
allow citation of their unpublished opinions. The rule, prospective
only, takes effect Dec. 1, unless blocked by Congress. The court's
action turns up the heat on California. Here, the Supreme Court's
Werdegar Committee, on standards for publication of appellate
opinions, is expressly barred from considering citability; but the
committee itself has called for a new committee to take on that topic.

As California ponders which way to go, it has competing models to
follow. The new federal rule emerged from an immense rule making
proceeding that drew a near-record 513 public comments comments that
came overwhelmingly from lawyers and judges in the Ninth Circuit U.S.
Court of Appeals and were overwhelmingly opposed to the new rule.
Included were 62 comments from Ninth Circuit "FPDs" federal public
defenders, meaning lawyers employed in FPD offices, whatever their
rank or title. All 62 of the Ninth Circuit FPDs opposed the new rule.

Faced with this opposition landslide, the federal rule makers
nonetheless approved the rule. They relied in part on research showing
that lawyers and judges, nationwide, favored the rule.

One question for California is what to make of the opposition to
citability expressed remarkably by every one of the 62 FPDs from
the Ninth Circuit who commented on the rule. Those comments made
familiar arguments against citability, such as:

   * Unpublished opinions aren't good enough to cite; they "suffer
from shoddy analysis and missed issues" and "are often obviously
written by law clerks";
   * Citability would "exponentially increase the amount of time
spent on legal research";
   * Judges "would have to spend much more time ... because they
presumably would want to create a much better product if it is
something that could be cited";
   * Alternatively, judges would dispense with opinions and issue
one-line dispositions;
   * Citability will cause delay; will be unfair to poor litigants;
and will cause other harms.



These comments all come from FPDs in the Ninth Circuit, a circuit
which (with minor exceptions) bans citation of its unpublished
opinions. There are three other no-citation circuits (the Second,
Seventh and Federal), while nine circuits allow citation. Given this
9-4 split, one would like to hear from FPDs in the nine "citable"
circuits. To what extent, if any, do they share the monolithic views
of their colleagues in the Ninth Circuit?

One might look first to comments on Rule 32.1 filed by FPDs from the
citable circuits. But only three of those defenders filed comments, so
that won't do. Instead, I conducted a telephone survey of FPDs in each
of the nine citable circuits. I thus interviewed 36 randomly selected
defenders (see www.law.berkeley.edu/bark.html). This technique
produced views dramatically different from those expressed by the 62
Ninth Circuit FPDs.

Most striking were the results on the key question of additional
research burden due to citability of unpublished opinions. The FPDs
overwhelmingly reported "no impact" on their research time, "not a
problem," the burden was "not that great," it "doesn't ring true we
do research regardless," the use of computers makes any increased time
"minimal," it "doesn't add any burden at all," it's "not a burden for
us," "not a significant burden," "just part of the search," "would do
it anyway," "no crushing burden," "not a big burden," "no additional
research," "no worry," burden "doesn't bother" him, the asserted
burden is "not true," "doesn't bother me at all I always do
research, it's part of my job," "no one complains," "it's part of the
research we do."

One federal defender said the research-burden claim was "bullshit,"
adding that "the people complaining in the Ninth Circuit must be
scared of computer research."

Several FPDs did report an added research burden greater than
nonexistent. One estimated the burden, for example, as about 2.5
percent of his research time (though he would read the cases even if
they weren't citable). One saw "more work for both sides," but it
didn't "bother" him. One said it increased her work "a little bit,"
but she'd probably read the cases anyway. One did opine, without
explanation, that the added burden might be "fairly significant in the
Ninth Circuit."

A major theme running through the responses was the computer. "Legal
research isn't what it used to be," and research that used to be
onerous no longer is, many said. Several defenders observed that the
cases "just pop up" on Westlaw or Lexis.

No less striking were the differences in attitude between the Ninth
Circuit and citable-circuit defenders. Many of the latter, told of the
Ninth Circuit's 62-out-of-62 vote, expressed incredulity ("Really?").
Several asked, "Why have opinions if they can't be cited?" One
remarked, "I should think that public defenders would want to cite
these opinions. On balance, they help the defendants ... a little."
Another said caustically, "This is federal tax money do your job."

Does citability cause delay? None of the 36 defenders said so. Does
citability lead to one-line dispositions? No defender said so; one
called the claim "just an excuse."

On the bottom-line question of allowing or prohibiting citation, the
vote was 23 to allow, 4 to prohibit and 9 not producing a categorical
response (though leaning heavily toward "allow").

Told of the Ninth Circuit views so different from their own, a few of
the citable-circuit defenders responded separately with a
strategic explanation. "The Ninth Circuit is more defense-oriented,"
they said, and the defenders probably "fear that the judges won't have
the same nerve" if the opinions can be cited.



The facts thus show a striking difference between the federal
defenders in the Ninth Circuit where all 62 of those commenting
opposed citability and those in the nine citable circuits, where the
FPDs overwhelmingly supported citability. What can explain this
night-and-day divide? Is it plausible that not one of the 62 Ninth
Circuit defenders would support a rule allowing them to cite
unpublished opinions in their clients' behalf? That the
client-centered concerns expressed by so many of the citable-circuit
defenders would have no resonance in the Ninth Circuit? That not even
one of the 62 Ninth Circuit defenders the Ninth Circuit! would
dissent from the circuit consensus?

The explanation may lie in command and control. One of the
citable-circuit FPDs, told of the 62-out-of-62 vote by the Ninth
Circuit defenders, commented, "sounds like marching orders." Indeed it
does. Little else but an office directive can explain such a unanimous
view on the part of 62 lawyers who are used to making their own
judgments on their clients' behalf and to challenging authority on a
daily basis. Also noteworthy was the epistolary campaign: Of the 62
comments, 42 were written on official FPD letterheads (and 18 on blank
forms); only five of the 62 specified that the views expressed were
the writer's own and not those of the FPD office.

A public school teacher, the Supreme Court has held, may have
constitutional protection against being dismissed for writing a letter
to a newspaper criticizing school board policies in Pickering v. Bd.
of Education, 391 U.S. 563 (1968). And Congress cannot ban use of
Legal Services Corp. funds to challenge welfare laws, according to the
ruling in Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001). So
it's an interesting question whether a public defender's office can
dictate its attorneys' position on a rule making issue such as Rule
32.1. On the one hand, there may be legitimate claims of office
policy. On the other, the individual defender may feel that her duty
of zealously representing her client requires citing unpublished
cases.

Beyond that, the profession and public are losers when denied the
thoughtful views of 62 intelligent, knowledgeable and
otherwise-independent lawyers.

At the least, if comments filed in rule making proceedings by federal
public defenders do not represent the attorney's own position, but are
commanded by the FPD office, that fact, it would seem, should be
disclosed. Otherwise, the profession, the public, and the rule makers
cannot know whose judgment the comment represents.

Stephen R.Barnett is the Elizabeth J. Boalt Professor of Law Emeritus
at Boalt Hall School of Law. A longer version of this article appears
as "The Dog That Did Not Bark: No-Citation Rules, Judicial Conference
Rulemaking, and Federal Public Defenders," 62 Washington and Lee Law
Review 1491 (2005). This Web site identifies federal public defenders
quoted in the longer article.