Judicial Conference Supports Citing Unpublished Opinions

Tony Mauro
Legal Times

The policy-making body of the federal judiciary on Tuesday endorsed a sweeping rule change that will allow lawyers to cite unpublished opinions in federal appeals courts nationwide beginning in 2007.

The Judicial Conference also voted not to take a position on the controversial question of whether the sprawling 9th U.S. Circuit Court of Appeals should be split in two. Members did, however, agree that they would oppose any circuit-splitting bill that does not provide adequate funding for the costs involved. The issue has been debated by Congress for years without resolution.

The citation rule change, if ratified by the Supreme Court and untouched by Congress, would end a practice that brought charges of a hidden, unaccountable system of justice against some of the nation's largest and most important appellate courts. The 2nd, 7th, 9th and federal circuits ban citation of unpublished opinions outright, while six other circuits discourage it.

Passage of the resolution by voice vote followed "a great deal of debate," said Judge Carolyn Dineen King, chair of the executive committee, at a post-meeting news conference.

She said passage was eased by an amendment introduced at the meeting that would make the change prospective only, meaning that lawyers will be able to cite only those unpublished opinions issued after Jan. 1, 2007. King also stressed that individual circuit courts will be able to set their own rules about the precedential value unpublished opinions can be given.

The conference vote is something of a bouquet tossed to its likely next chairman, chief justice nominee John Roberts Jr. As a private practitioner and then as a judge on the U.S. Court of Appeals for the D.C. Circuit, Roberts served on the advisory committee that recommended the new rule, 32.1. "A lawyer ought to be able to tell a court what it has done," Roberts said at the April 2004 meeting at which the advisory committee first endorsed the rule.

At his Senate Judiciary Committee confirmation hearings last week, Roberts said he was in line to chair the advisory committee in October -- now unlikely, since as chief justice he would chair the entire Judicial Conference. The conference's standing committee on rules of practice and procedure approved the citation rule in June of this year.

"This is one of the things John Roberts took a personal interest in," said Mark Levy, who heads the appellate advocacy group at Kilpatrick Stockton and was another member of the advisory committee along with Roberts. "It will be a terrific change that will make the process fairer and more transparent."

Michael Schmier of the California-based Committee for the Rule of Law said: "We have worked for 10 years to see this day. We are gratified that the mechanism by which the rule of law is imposed upon the judiciary is restored." Schmier said that the federal rule change could have a ripple effect on California and other states that have their own non-citation rules.

The meeting of the Judicial Conference was presided over by Justice John Paul Stevens in the wake of the death Sept. 3 of Chief Justice William Rehnquist.

Stevens "did a fine job," King said. "He has a great deal of charm." The conference -- composed of the chief judges of all 13 circuits as well as one district judge from each circuit and the chief judge of the Court of International Trade -- passed a resolution mourning the loss of Rehnquist, who presided over the conference for nearly two decades.

As many as 80 percent of all appeals court opinions are designated "unpublished," though most are available on electronic databases or from the courts themselves. The practice of issuing uncitable, unpublished opinions -- many of them brief dispositions drafted by law clerks or staff attorneys -- developed over the past 30 years as a time-saving device for overburdened appeals judges. Critics say the practice produced a body of often conflicting opinions that did not need to be harmonized and could not be cited or reversed.

A significant faction of appeals judges, led by 9th Circuit Judge Alex Kozinski, resisted the rule change, complaining that it would exponentially increase their workload by forcing them to polish and beef up the unpublished opinions.

After Tuesday's vote, Kozinski said, "I don't have any comment. I think it's a bad idea, but that's what it is. Maybe the Supreme Court will overrule it."

Kozinski, who encouraged other 9th Circuit judges and practitioners to write letters in opposition to the rule change, also asserted the change would increase litigation costs by expanding the universe of cases lawyers must search on behalf of clients. But a study by the Federal Judicial Center, issued in April, found that in circuits that had decided in recent years to allow unpublished opinions to be cited, neither problem had materialized to a significant degree.

But another leading opponent of the rule change said that survey was misleading because it takes a long time for lawyers and judges to change their practices. "In years to come, you are going to see briefs loaded up with this junk law," said Sanford Svetcov of Lerach Coughlin Stoia Geller Rudman & Robbins in San Francisco, who voted against the move in the advisory committee. But Svetcov acknowledged that the momentum was strongly in favor of the rule change. "There was a freight train running downhill, with only me and Judge Kozinski standing in the way."

Stephen Barnett, emeritus law professor at the University of California, Berkeley, a leading proponent of the citation rule change, said that the Judicial Conference deserved credit for "refusing to be swayed by an elaborate letter-writing campaign from the 9th Circuit." The conference, he added, "has followed an extensive process of deliberation, research, and reason to a courageous and laudable result."

Reporter Justin Scheck of The Recorder contributed to this report.