Daily Record (Baltimore, MD)
September 19, 2003
Commentary: Need to reform unpublished opinions in Maryland.
By Michael Wein 

Imagine this scenario. You are an attorney for a municipality that has been sued. You are able to successfully argue to the Federal District court that 11th Amendment sovereign immunity governs the case and that the case should be dismissed. A panel of appellate judges hears the case, and affirms the dismissal based on sovereign immunity. As counsel for the municipality, you feel confident in advising your client that in the future and under similar circumstances, your client will be immune from suit.

Unfortunately, if the appellate decision was unpublished and therefore not of precedential value, you would be wrong. The above scenario actual happened in the case of Williams v. Dallas Area Rapid Transit (DART), 256 F.3d 260 (5th Cir. 2001). Williams was heard less than two years after Anderson v. DART, 180 F.3d 265 (5th Cir. 1999) (per curiam) (unpublished) was decided, involving the identical issue of sovereign immunity. Yet, in an unusual dissent from a denial of petition for rehearing en banc, three 5th Circuit judges lambasted the notion that "the mere fortuity that the Anderson panel decided not to publish, our panel in Williams was free to disagree with Anderson and to deny to DART the same immunity that Anderson had conferred on it less than two years earlier." Williams, 256 F.3d at 260-261.

Outside of attorneys who practice appellate law, many, if not most attorneys, are unaware of the current debate involving the use of unpublished opinions, and that this debate has practical applications here in Maryland. The vast majority of cases in the Maryland Court of Special Appeals are unpublished.

During fiscal year 1999, of the 1,383 opinions issued by the Court of Special Appeals, 1,232 of these were unreported. With only 151 cases reported, therefore, 89 percent of the opinions in the Court of Special Appeals, are not of precedential value and do not contribute to the expanding Common Law of Maryland.

Furthermore, the opinions themselves, under Maryland Rule 8-114, cannot be cited in an appellate brief, except for very limited circumstances such as res judicata, collateral estoppel or law of the case.

It was the case of Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc), that has reinvigorated the debate on the wisdom of non-precedential opinions. In Anastasoff, the 8th Circuit Court of Appeals, in an opinion by Judge Richard S. Arnold, held that the Court's own citation rule, which required unpublished opinions to be without precedential value, was unconstitutional. Judge Arnold argued that the lack of precedential value was a violation of Article III of the United States Constitution as exceeding the "judicial power" granted the courts. Judge Arnold cited such luminaries as Alexander Hamilton, Lord Coke and Blackstone in support of the contention that when the framers gathered in Philadelphia, the notion of precedence was so prevalent and widely understood as being a lodestone upon which our judicial system was founded, that the issuance of opinions without precedential value would be unconstitutional.

Irrespective of the constitutionality of having non-precedential opinions, a more compelling argument against permitting these opinions is that they make poor public policy. It was not until 1964 that the Judicial Conference of the United States recommended that United States Court of Appeals choose to issue some less important' opinions that were without precedential value. Since then, most intermediate appellate courts, federal and state, have some form of non-citation rule for unpublished opinions. The stated reason is one of judicial efficiency. The argument goes, that with the increasingly larger number of appeals, that there is simply not enough time for judges to give a decent review for all cases, and for those cases that are not important or complicated enough to be published, that they should be without precedential value.

One problem with this argument is that if the appellate judges have a case before them that is simple,' then these cases would require far less work for the judicial branch. For example, every couple of years, the Maryland appellate courts have a case arguing that there should be an expansion of tort law that would permit bar owners to be liable to third parties for the actions of their drunken patrons, and that Maryland should become what is commonly known as a Dram Shop' state. However, since the case of Felder v. Butler, 292 Md. 174 (1981), the Maryland Court of Appeals has consistently stated that it is the province of the Maryland Legislature, and not the courts, to enact a Dram Shop law. Thus, any further challenges on this issue could be dealt with by a simple recitation of facts and a statement that pursuant to the case of Felder v. Butler, the lower court's dismissal of the case is affirmed.

The main objection to permitting precedence in all judicial opinions is one of necessity; that to permit each case to stand by itself as a precedent to other opinions, would grind the appellate judicial system to a halt. I would suggest that the best way to rectify this concern would be a legislative compromise that in return for providing for precedential value in all decision-making, that the state would provide for more judges to be appointed in the Court of Special Appeals. This would allow for each opinion to be considered as precedent, improving the overall quality of opinion-making.

With today's fiscal climate, it might be difficult to pass such a proposal. Nevertheless, the judiciary should examine the possibility of such reform today, so that when the state's fiscal fortunes improve in a few years, a considered debate and consensus has already been reached on the best way to achieve this reform.

While appointing more judges would be the best solution, technological advancements have already eliminated one major need for the issuance of non-precedential decisions. In 1964, when the Judicial Conference of the United States came out with its recommendations, there was also a concern that too many judicial opinions would dilute the Common Law to such a degree, that no attorney would be able to keep abreast of recent case law developments. Thus, proponents argued in favor of the need for non-precedential, unpublished opinions. However, in 1964, personal computers did not even exist. With the wide availability of Lexis and Westlaw today, it is easier for the conscientious attorney in Maryland to practice his/her fields of law, without being overwhelmed with extraneous legal materials.

Currently, the database services are reluctant to include unpublished opinions in their databases because of the limited utility of unpublished opinions outside the specific case. The problem lays in that 89 percent of the opinions in the Court of Special Appeals are not of precedential opinion, thus disconnected from the rest of Common Law, and just like the Williams case, subject to change based on whim.

To partly rectify this situation, the Maryland courts should consider permitting the introduction of unpublished opinions for persuasive value, instead of a blanket prohibition against the mention of these cases. This would at least give prospective value to unpublished opinions, so that they could be cited in similar cases, and would then presumably be included in the Lexis and Westlaw databases.

Michael Wein is an attorney in Greenbelt whose practice concentrates on appellate, civil, and criminal litigation. He can be reached at 301-441-1151, or wein2002@hotmail.com.