Daily Journal - Jun 3, 2004
New Rule Gives Lawyers More Flexibility in Choosing Citations
        Focus Column
        Appellate Law
        By Aimee Mackay and Catherine Valerio Barrad
        In the impassioned debate that surrounded the U.S. Judicial Conference's consideration of a new rule allowing citation to "unpublished opinions," Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeal summed up the opposition to proposed Rule 32.1 of the Federal Rules of Appellate Procedure in this way: "When the people making the sausage tell you it's not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway."
        The U.S. Judicial Conference received 500 comments on the proposal, most of which urged rejection of the rule. As proposed, the rule would require that "no prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as 'unpublished' ... or the like."
        Judges and practicing attorneys alike argued that the new rule would only add to the Sisyphean burden imposed on an overworked, understaffed judiciary. Judges would be required to spend time personally on opinions they otherwise might simply have assigned to a clerk, and they would have to monitor every opinion issued by their own circuit with the same attention given to published opinions. Some also argued that the rule would encourage attorneys and law firms to bill their clients for endless research into opinions previously deemed unpublishable.
        Proponents of the rule argued that judges shouldn't be in the sausage business, anyway. In the words of the Trial Lawyers for Public Justice, "[u]npublished decisions undermine judicial legitimacy by sending the message to the public that certain cases do not receive adequate consideration."
        As most of the opponents admitted, unpublished opinions are so designated because they are cases that fall well within the bounds of existing law and the court has not taken the time to craft a detailed opinion discussing the application of the law to the facts presented by the case.
        Some interpret unpublished opinions as those for cases that the court has determined are not worthy of sufficient attention to create an opinion worthy of precedential value. Some proponents of the rule, therefore, argued that the judiciary ought not give short shrift to any case, no matter how simple the outcome.
        Notwithstanding the deluge of comments opposing it, on April 14, 2004, the conference's advisory committee voted 7-1 to endorse proposed Rule 32.1.
        In an interesting parallel, nearly two weeks later, state Sen. Sheila Kuehl, D-Santa Monica, dropped SB1655, a bill she had sponsored which would have made similar changes in the state courts. Kuehl's draft bill provided that "all opinions of the Supreme Court, a court of appeal, or an appellate department of a superior court may be cited by any court for any persuasive value they may have."
        Kuehl introduced the bill in February, apparently at the encouragement of two Emeryville attorneys, Kenneth and Michael Schmier.

        The Schmiers have dedicated a Web site, several lawsuits, and at least one bid for Congress to eradicating the state's practice of unpublished opinions. According to reports, Kuehl decided to drop the bill after meeting privately with state Chief Justice Ronald George.
        George is vehemently opposed to allowing citation to unpublished opinions, a view he expressed in a letter opposing Rule 32.1 to Peter McCabe, secretary of the conference's committee on rules of practice and procedure: "Elevating unpublished opinions to the status of precedent would increase the number of citable opinions from California's courts of appeal by more than a factor of 12. Although the availability of opinions on-line may make research easier for some, many individuals do not have informed access to this source. The increased body of cases requiring review would substantially increase the cost and time associated with researching and analyzing almost any issue."
        The U.S. Judicial Conference's response to the comments from George and the numerous other detractors is simple: Rule 32.1 does not require the circuits to give any precedential value to opinions they choose to designate as "unpublished"; rather, the rule simply provides that attorneys not be prohibited from citing such decisions. Whether the circuit judges rely on unpublished cases or disregard them is entirely outside the purview of the rule.
        The advisory committee's notes are careful to indicate that "[the rule] takes no position on whether refusing to treat an 'unpublished' opinion as binding precedent is constitutional."
        Famously, of course, one panel of the 8th Circuit, led by Judge Richard Arnold, declared that a circuit rule removing precedential value from unpublished opinions was unconstitutional, only to have the decision vacated as moot by an en banc panel of the court. Anastasoff v. United States, 235 F.3d 1054 (8th Cir. 2000) (en banc).
        So then, what's the point of the rule? As many a law clerk can attest, before the issue was taken up by the committee, lawyers sometimes cited to unpublished opinions in their briefs, despite rules against the practice. Such citation often involves calculating the risk of flouting the rule and angering the court against the value of citing to a case that, while unpublished, may have been directly on point.
        This strategy didn't appear to entail too much risk of formal discipline: There are no recorded cases of attorney discipline involving citation to unpublished opinions. But in at least two opinions, the 9th Circuit used a case as an opportunity to warn against such practices. See Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) and Sorchini v. City of Covina, 250 F.3d 706 (9th Cir. 2001).
        Most careful attorneys, therefore, respected the prohibitions of the 9th Circuit and California rules against such citation rather than risk their credibility with the courts.
        Following implementation of Rule 32.1, attorneys will have greater flexibility in choosing citations for their appellate briefs. The careful appellate practitioner will, as always, research the cases both supporting and questioning the position taken in the briefs.
        If an unpublished opinion is uniquely on point, then the appellate lawyer may cite the case as an example of the application of the law to the facts in the case before the court or discuss why the case does not apply.
        Rule 32.1 allows the appellate practitioner to do so without fearing discipline or risking his or her credibility with the court. The appellate lawyer will still file requests to publish (or, in the state appellate courts, requests to depublish) cases because of their precedential value (or lack of it), but the federal appellate courts may consider those requests unnecessary.
        But the courts are unlikely to, as a result of Rule 32.1, revise their determination of which opinions are precedential. Because the court will exercise its discretion on whether to consider the unpublished cases in reaching a decision in the case at hand - just as it does now - for the court, the new Rule 32.1 is a dog with a big bark but no bite. For the appellate practitioner, it is a tool that lends greater flexibility in establishing support for appellate arguments.
        Aimee Mackay is an associate and Catherine Valerio Barrad is a partner in Sidley Austin Brown & Wood's appellate practice group.