By Stephen R. Barnett



Stephen R. Barnett is a professor at UC Berkeley's Boalt Hall.  He is the author of From Anastasoff ­­to Hart to West's Federal Appendix: The Ground Shifts Under No-Citation Rules, 4 J. App. Prac. & Process 1 (2002).


     The issue of "unpublished" judicial opinions does not go away.  A federal rules Advisory Committee meets Monday (Nov. 18)  in San Francisco (8:30 a.m. at the Park Hyatt; open to the public) to consider a uniform policy for the federal circuits.  The circuits are not waiting.  Two have changed their policies this year -- the D.C. Circuit last Jan. 1, the First Circuit effective next Jan. 1 -- to allow citation of unpublished opinions at least for their "persuasive" value.  Such citation is now legal in nine of the 13 circuits, a clear majority; it's still verboten -- except, of course, for related-case uses such as res judicata -- in the Second, Seventh, Ninth, and Federal Circuits.

        There's movement at the state level as well.  Texas is changing its rule January 1 to allow citation of all newly-issued opinions from its civil (but not criminal) court of appeals.  This move could -- and should -- put pressure on California, whose court of appeal comfortably issues 94 percent of its opinions "unpublished" and bans citing them.  See Cal. Rule Ct. 977 (a)).

       Meanwhile, the meaning of "unpublished" has been transmogrified, thanks largely to West Group's launch last year of its impudent Federal Appendix.  This is a published reporter of the "unpublished" opinions -- some 12,000 per year -- from all but two of the federal circuits.  (The Fifth and Eleventh Circuits refuse to cooperate, though letting their opinions be cited once found.)   The Federal Appendix is requiring, if nothing else, that definitions of "publication" be radically revised.  For example, the First Circuit now defines a "published" opinion as "one that appears in the ordinary West Federal Reporter series (not including West's Federal Appendix)" (emphasis in original).

     "Unpublished" opinions thus are now widely available, both in old-fashioned print and in LEXIS, WESTLAW, and online sites such as the California courts' own archive of unpublished court of appeal opinions  (www.courtinfo.ca.gov/opinions/.nonpub.htm).   So it makes little sense any more to debate whether all appellate opinions must be traditionally "published."  There's little objection in principle to letting courts pick and choose, as they now do, which of their opinions are "important" enough to be printed on paper or bound in books.  Thanks to the Internet, all the "unpublished" opinions will be available anyway.   The crucial question is whether they may be cited.   

          Principle says they must be citable.   Otherwise, as Judge Richard Arnold has written, courts are saying to the bar:  "'We may have decided this question the opposite way yesterday, but this does not bind us today, and, what's more, you cannot even tell us what we did yesterday.'"  Anastasoff v. United States, 223 F.3d 898, 904, vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc).  Precedent is vital to Anglo-American law.  Judicial power obtains its legitimacy from deciding cases, and the law is what the courts have decided.  If a litigant cannot tell the court about a prior decision rendered on similar facts, she may be denied the equal protection of the laws, and possibly due process and freedom of speech as well.

      Even Judge Alex Kozinski, perhaps the staunchest backer of no-citation rules, calls it "bad form to ignore contrary authority by failing even to acknowledge its existence."   Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001).  If you can't cite it, you can't acknowledge its existence. 

     Against those arguments stand the forceful fears of Judge Kozinski and others.  Judges have only so much time.  If their unpublished opinions become citable, they will have to spend more time on those opinions, it is said, and that time can only come from published opinions.  Although these fears give pause, they appear to face growing rejection from those who know best.  With a clear majority of the federal circuits now allowing citation of their unpublished opinions, the burden of proof lies with those who say citability cannot be acceptably managed.

     The question then is what the unpublished opinions can be cited for.    The circuits permitting citation employ one of two formulas (1) the opinions may be cited as "precedent" (the Fourth, Sixth, and D.C. circuits),  or (2) they are "not precedent" but may be cited for their "persuasive" value (the First, Fifth, Eighth, Tenth, and Eleventh circuits).  The Third Circuit uses no formula but allows citation.

      The Advisory Committee that meets Monday offers three proposed rules, styled as "alternatives" but differing only slightly and all taking the "persuasive" approach.  Further, the committee would drop the term "unpublished" and speak only of "non-precedential opinions."  The latter move seems questionable.  At least in a factual sense, every common law decision is a precedent.  And judges trained in the common law can't easily separate an opinion's "persuasive" from its "precedential" force. 

       But the Advisory Committee is on the right track, as are the nine federal circuits and the courts of Texas, in moving against no-citation rules.  The vice of those rules could hardly be better demonstrated than by two recent unpublished opinions of the California court of appeal, both featured in this newspaper.   Both cases involved premises liability.  In one, the court of appeal affirmed summary judgment for the Catholic Church against a parishioner who was beaten during Mass by a weapon-wielding homeless man to whom the church had given shelter -- notwithstanding warnings to the pastor by the church's maintenance manager that the homeless man "was big trouble and that something terrible was going to happen" if he wasn't kept out of the church.    O'Neill v. Roman Catholic Bishop of Orange, 4th Dist., Div. 3, 2002 WL 31421290 (Oct. 28, 2002); see Peter Blumberg, "No Guarantees Upon Entering the House of the Lord," S.F. D.J., Oct. 30, 2002, p. 1.     

    The other case, decided nine weeks earlier, was Weisman v. Plutsky, 2002 WL 1924028 (2d Dist., Aug. 20, 2002); see Michael Paul Thomas, "Unpublished Case Sheds Light on Liability for Assault," S.F.D.J., Oct. 3, 2002, p. 5.  In a suit against a landlord for a criminal's assault on a woman in the parking area of her apartment complex, the court of appeal reversed summary judgment for the landlord.  Along the way it rejected a published court of appeal decision, Hassoon v. Shamieh, 89 Cal. App. 4th 1191, 1195 (2001),  that it found too broad in its interpretation of the governing Supreme Court decisions.  An extended analysis in this newspaper concluded that "[a]lbeit unpublished, Weisman is important reading for anyone dealing with premises liability law as it relates to third-party criminal conduct"  (Thomas, supra).   

           Even if these opinions  can be reconciled, one can wonder why they were not published, and why the plaintiff in O'Neill was not allowed to tell the court about Weisman, decided nine weeks before.  More specifically, he could not  tell the court about the Weisman's court's disagreement with Hassoon, a case relied on by the court in O'Neill. Is this equal protection of the law?  Due process?  Freedom of speech?  One wonders how the plaintiff in O' Neill, barred from telling his court about a decision in his favor on arguably similar facts nine weeks before, can be assured that he was treated equally by the law.  One wonder how O'Neill's lawyer could explain to him that his court couldn't be told about Weisman's narrowing of the Supreme Court decisions standing in his way.  One also wonders at the fact that both these decisions were deemed important enough for extended coverage in a legal newspaper, but yet they could not be cited in court.        

     The Advisory Committee meeting k in San Francisco next week, that Committee will be recommending that unpublished decisions like O'Neill and Weisman, if decided in the federal courts of appeals, at least be citable.  In the California courts, however, these decisions by the court of appeal may not be cited (unless the Supreme Court intervenes).  While the federal courts now appear to be moving toward resolution of the "unpublished opinion" issue, and as Texas has taken the lead among state courts, it is time for California's court of appeal to get started.


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