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APPELLATE PRACTICE • Sep. 21, 2005
Panel OKs Cites To Unpublished U.S. Opinions
Vote of Support by Judicial Conference Counters 9th Circuit

By Brent Kendall and Linda Rapattoni Daily Journal Staff Writers         WASHINGTON - A proposal to allow the citation of so-called "unpublished" opinions in all federal courts took a big step Tuesday toward final approval, as the Judicial Conference of the United States, the policymaking body of the federal courts, voted in favor of the rule change.
        The proposal, known as Rule 32.1 of the federal Rules of Appellate Procedure, must be approved by the Supreme Court and Congress.
        Chief Judge Carolyn Dineen King of the 5th U.S. Circuit Court of Appeals, who chairs the conference's executive committee, said she expected that approval to be forthcoming.
        King said the proposal "occasioned a great deal of debate, but in the end, it was soundly approved."
        The conference amended the proposal so that it would apply only to future opinions, effective with decisions issued on or after Jan. 1, 2007.
        King said that applying the rule prospectively was helpful in easing opposition to the measure.
        Nine of the 13 federal circuits allow the citation of unpublished opinions. However, much of the opposition to the rule has come from the 9th Circuit, which prohibits the citations.
        The other circuits that prohibit the practice are the 2nd, 7th and Federal.
        During a comment period last year, 38 judges from the 9th Circuit wrote the Judicial Conference's Federal Advisory Committee on Appellate Rules to oppose the proposal, and 200 public defenders and private practitioners from the circuit also filed letters of opposition.
        Judge Alex Kozinski of the 9th Circuit has been among the leading opponents of the rule.
        In a letter to the advisory committee, Kozinski argued that unpublished dispositions tended to be thin on the facts and written in "loose, sloppy language."
        He said that, "because there's about a zillion of them out there, ... they will create a veritable amusement park for lawyers fond of playing games."
        He could not be reached comment on the conference action Tuesday.
        Sanford Svetcov of Lerach Coughlin in San Francisco, an opponent of the rule change who served on the advisory committee, said the conference's vote "opens the door to a can of worms whose impact we can't know in the short term."
        "How [the citations] will be used or misused is anybody's guess," Svetcov said.
        "I felt from the beginning that it should be a circuit-by-circuit decision and not a national rule," he said. He added, however, that amending the proposal to apply only to future decisions was an improvement.
        Ken Schmier, an Emeryville lawyer, who, with his brother, Michael Schmier, has lobbied for the rule change, characterized Tuesday's vote as a big victory.
        "The issue that really concerns us is that judges are going to feel a responsibility when they write a decision; they are writing decisions for the future," Schmier said. "It's everything we wanted. The important thing is to fix the problem for posterity."
        Boalt Hall emeritus professor Stephen Barnett, another proponent of the rule change, said technology won out in the end.
        "With court decisions available online, it becomes harder and harder to call them 'unpublished' and prohibit citing them," Barnett said. "The Judicial Conference simply recognized reality."
        "The battle will now move to California, the last big holdout, which also will have to face up to reality," he said.
        California Chief Justice Ronald George, who opposes the citing of unpublished opinions and has fought attempts to change the state's judicial rules to allow the practice, has appointed a committee of lawyers and judges to study the criteria by which California judges' decisions are published.
        The committee's report is scheduled to be released this fall.
        In other news Tuesday, the U.S. Judicial Conference discussed proposals in Congress to split up the 9th Circuit, but decided to take no position on the various pieces of legislation.
        The conference did, however, say that any proposal to split the 9th Circuit should be considered separately from legislation that would provide the federal courts with additional judgeships.
        Last October, the House of Representatives voted to divide the circuit three ways, doing so in an amendment to a judgeship bill.

        Daily Journal Staff Writer Linda Rapattoni reported from Sacramento.