APRIL 25, 2005
Panel OKs Rule on Citing Unpublished Opinions
Committee Advances Rule on Citing Unpublished Opinions
By Linda Rapattoni
Daily Journal Staff Writer
        SACRAMENTO - An advisory committee on rules for the federal judiciary has again voted to recommend the federal courts allow lawyers to cite unpublished opinions in papers before the courts.
        One of two committee members who voted against the proposal, which was strongly opposed by judges of the 9th U.S. Circuit Court of Appeal, said the second vote suggests a momentum that may be unstoppable. However, adoption of the proposal would not take place before the end of 2006.
        "It's moving along," said Sanford Svetcov, a San Francisco partner in Lerach, Coughlin, Stoia, Geller, Rudman & Robbins. "The next level is significant. But they are all significant. Once the ball is rolling, it may not stop."
        The Appellate Rules Advisory Committee of the U.S. Judicial Conference voted 7-2 last week to recommend that the courts adopt the proposal, known as the Federal Rule of Appellate Procedure 32.1. It next goes to the Standing Committee on Rules of Practice and Procedure, which is scheduled to meet again in June.
        The advisory committee made a similar recommendation a year ago. But the standing committee sent the proposal back to the advisory panel, requesting that it research whether the citations would place time burdens on the courts and result in shorter and more frequent unpublished opinions.
        They would not, according to preliminary results of research by the Federal Judicial Center. The center surveyed all 257 sitting circuit court judges and 375 appellate lawyers and also reviewed 50 cases in each circuit.
        Judges in circuits that permit the citations did not believe there would be an increase in the number of unpublished opinions, nor a difference in their length or the time it took to draft them. Judges in circuits that recently permitted citation of unpublished opinions reported a small increase in citations, but they said it did not affect their workload.
        They also said the citations were seldom inconsistent with published authority and were only occasionally helpful.
        Lawyers surveyed were substantially in favor of being allowed to cite unpublished opinions, the study showed.
        Of the nine circuits where reviews of 650 cases had been completed, the study found 13 percent were resolved by published opinion, 33 percent were resolved by unpublished opinion and half were not resolved by opinion. Some 28 percent of the cases were published.
        Svetcov said the studies, although thorough, relied on too little data, much of it from circuits that only recently have allowed unrestricted citations of unpublished opinions. There have been so few citations of unpublished opinions, the studies may not be able to give a clear picture of what could happen if the federal court system adopts a new citation rule, he said.
        Three circuit courts - the 3rd, 5th and District of Columbia - allow citations of unpublished opinions without restriction. Four circuits - the 2nd, 7th, 9th and Federal - allow the citations only in very narrow circumstances.
        Six circuit courts discourage the citation of unpublished opinions and allow them only if there is no published opinion on the issue.
        There were 513 comments filed in the notice and comment period of the rule-making process. Of those, a margin of about 9-1 opposed the rule, most of them from the 9th Circuit.
        Kenneth Schmier, an Emeryville lawyer who with his attorney and brother Michael, has long advocated for citation of unpublished opinions, said he was encouraged by the results of the study and the vote. He said if the federal courts adopt the rule, it would put pressure on state courts in California to do likewise.
        California Chief Justice Ronald George opposes citation of unpublished opinions in California courts. He persuaded a lawmaker to drop a bill last year to allow citations by agreeing to study the criteria by which courts decide to publish cases.
        Stephen Barnett, professor emeritus at the UC Berkeley School of Law, advocates changing the rule to allow citation of unpublished opinions.
        "The basic question is whether lawyers and litigants can be prohibited from telling the court what the court has done in a previous case," Barnett said. "I just think considerations of due process, freedom of speech, the role of precedent and fairness require when a court has made a decision one way it cannot gag lawyers from citing that decision in their clients' behalf."
        A leading opponent of the proposed rule change, 9th Circuit Judge Alex Kozinski, has said it would create significant research costs that could restrict access to appellate review and devalue published opinions.
        He declined to comment on the advisory committee's vote, saying he hadn't had time to see the research or review what committee members said in the discussion before the vote. However, he said he would remain opposed to the proposed rule.
        Svetcov said the rule change could affect the 9th Circuit differently than the other circuits because the 9th Circuit has such a huge body of law that is potentially citeable.
        "I've characterized much of this as junk law," Svetcov said. "Some cases have not been published that should have been, but that's not the question. The large bulk isn't worthy of publication."
        If the 13-member Standing Committee on Rules of Practice and Procedure approves the rule, it would next go to the Judicial Conference for consideration in September, then to the Supreme Court and finally to Congress in May 2006. Unless vetoed by Congress, it would take effect Dec. 1, 2006.