Court OKs Citation of Unpublished Opinions

By Brent Kendall
Daily Journal Staff Writer

WASHINGTON - The U.S. Supreme Court has agreed to allow the citation
of so-called "unpublished" opinions in all federal courts, a policy
that will go into effect on Dec. 1 unless Congress steps in to block
     The high court approved the measure on Wednesday in a move that
was widely expected.
     The proposal cleared its final major hurdle last September when
it won approval from the Judicial Conference of the United States, the
policymaking body of the federal courts.
     The citation issue had generated intense debate in recent years
and sparked strong opposition from the 9th U.S. Circuit Court of
Appeals, which has barred attorneys from citing unpublished, or
nonprecedential, opinions.
     During a comment period in 2004, 38 judges from the 9th Circuit
wrote the Judicial Conference's Federal Advisory Committee on
Appellate Rules to object to the proposal, and 200 public defenders
and private practitioners from the circuit also filed letters of
     Nine of the 13 federal circuits already allow the citation of
unpublished opinions.
     In addition to the 9th Circuit, the 2nd, 7th and Federal
circuits have prohibited the practice.
     To ease opposition to the measure, the Judicial Conference
amended the proposal in September to apply only on a prospective
basis, meaning the rule change covers only those unpublished opinions
issued after the effective date.
     It's highly unlikely that Congress will take action to amend or
defeat the rule change. A spokesman for the Administrative Office of
the U.S. Courts said such congressional intervention was rare.

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