October 07, 2004
Daily Journal
By Stephen R. Barnett
        The battle over no-citation rules for unpublished judicial opinions has moved from the federal to the state courts. The major news comes from Illinois, and California ought to tune in.
        The proposed federal rule requiring that all federal appellate opinions be citable - approved by the Appellate Rules Advisory Committee of the U.S. Judicial Conference - was put on hold in June by the conference's Standing Committee on Rules. Faced with a barrage of organized opposition from judges and lawyers in the 9th U.S. Circuit, the standing committee sent the proposed rule back to the advisory committee for further study - a study aimed at learning, in particular, what's happening in the nine of 13 federal circuits that allow citation of their unpublished opinions.
        A report is expected by mid-2005. The advisory committee then will decide whether to forward the proposal to the standing committee once more.
        Meanwhile, there is Illinois.
        For lawyers there, a famous bugaboo is Rule 23 of the Illinois Supreme Court. Rule 23 says "written orders" of the Illinois appellate court - "Rule 23 orders" - shall not be published and may not be cited.
        This is comparable to California's ban on citing unpublished opinions (California Rules of Court 977(a)), except that, in Illinois, "unpublished" has really meant unpublished; the opinions have been available neither online, as they are in California, nor (in most cases) anywhere else.
        With the bar increasingly chafing under these restrictions, the Illinois Supreme Court last year appointed a Special Committee on Rule 23. The committee has proposed amending Rule 23 "prospectively," with regard to orders issued after the amendment's effective date. Those orders would be made available electronically to the bar and public, and while they would not be "precedential," they could be cited as "persuasive authority."
        A hearing on this proposal was held in September by the Rules Committee of the Illinois Supreme Court. A half-dozen speakers, including representatives of the Illinois State Bar Association and the Chicago Bar Association, all favored the proposal. No one opposed it.
        One Illinois lawyer, Michael T. Reagan, told me, "No significant segment of the Illinois bar opposes these changes."
        J. Timothy Eaton, co-chair of the special committee, agreed that support among lawyers is "overwhelming."
        The rules committee meets Oct. 15, and it is expected to approve the proposal and send it to the Supreme Court, possibly in time for implementation by the start of 2005.
        In California, in contrast, although unpublished opinions are online, many judges and some lawyers vehemently oppose making them citable. The lawyers claim citability would saddle them with an enormous burden of additional research, increasing the costs of litigation for their clients. The judges claim they would have to spend more time on their unpublished opinions to make them presentable for citation - time that would have to be taken from their published opinions or other judicial work.
        Some in California also fear that the burdens of the added research would favor well-heeled or institutional litigants over poor ones.
        Puzzled by this apparent conflict between the views of Illinois and California lawyers, I interviewed by telephone seven lawyers and a judge in Illinois, all involved in the Rule 23 proceeding. I related the fears of citability voiced in California and asked the Illinois lawyers how they would respond.
        Even when asked about the costs of citability, Illinois lawyers tended to speak first about the benefits of citability, particularly the value of transparency.
        As Reagan put it, "permitting citation helps to preserve public trust in the integrity of the decision-making process; public integrity outweighs any inconvenience."
        Joy V. Cunningham, president of the Chicago Bar Association, said, "The law is there for citizens to use. Should we sacrifice the rule of law for convenience? If it takes more research - and how much is too much? - so be it."
        Joseph G. Bisceglia of the Illinois bar association said, "We live in a common-law system; lawyers shouldn't be handicapped in doing their homework.
        "If there's a case out there, an opinion right in point on its facts, then it's important not only for the client but for the court that the court know about it. Otherwise, the development of the common law is repressed."
        More than one lawyer called it absurd that "you can cite just about anything in a brief, and here we're talking about a court decision of a similar case, which you can't cite."
        Several lawyers reported their frequent frustration at hearing about unpublished Rule 23 orders in important cases, "cases that are leading-edge, on very important issues," that had facts similar to a case of theirs and that should have been published but that weren't published and couldn't be cited.
        "That's wrong," Bisceglia said.
        More than one lawyer also made the point (anonymously) that there are "errant judges" who "get a tough issue and don't want to decide it in the light of day."
        With regard to costs, the Illinois lawyers did not fear that citability would impose a significant burden of additional research.
        "If we were back in the paper age, I'd have that fear, but not in the electronic age," said Martin J. Healy Jr., chair of the Supreme Court's rules committee.
        Bisceglia agreed: "In the computer age, it's not a hardship. No one reads all the cases; you go through them quickly, on LEXIS or WESTLAW. It's hard to say there will be no additional work, but there probably won't be much more."
        Reagan said, "I'm not scared. The work is done by computer, which narrows the search down, and you only have to read the unpublished cases when you've got a difficult issue and cases right in point."
        More than one lawyer considered it important that the new rule would apply only prospectively.
        No one to whom I spoke expressed concern that citability would cause judges to spend so much more time on Rule 23 orders as to slight their published opinions and other work. Several lawyers complained that only 18 percent of appellate dispositions in Illinois are published, anyway. (They were amazed to learn the corresponding figure in California is 7 percent.)
        One lawyer said he would accept a diminished quality of judicial writing in unpublished opinions - "it's OK with me if they're not that great" - in order to "preserve citation as the guarantor of integrity in the process."
        The judge I spoke to (who preferred to remain anonymous) said he thought his court would write citable Rule 23 orders the same way it now writes uncitable ones and would not lower the quality.
        Told that some judges in California claim otherwise, the judge replied, "I'd be embarrassed to say that; it's their job."
        A few lawyers brought up the question of favoring rich litigants over poor ones. They all said they initially had been concerned but had concluded - in part because large firms and government offices now keep files of Rule 23 opinions - that the change would work the other way.
        In Healy's words, "the computer levels the playing field for the little guy."
        To be fair, California produces many more unpublished opinions than does Illinois, 11,600 per year against 4,300 in Illinois. This is not surprising, because California is by far the largest state.
        New York, however, matches California with 12,000 appellate dispositions per year and decides them all with published, citable opinions. New York lawyers report - in line with what Illinois lawyers expect - that the research is not a problem because computers do the searching.
        Given computers, the number of cases added to the data base annually appears to make little difference. This is partly because so many cases are easily excluded from a given search: Well over half of California's unpublished cases, for example, are criminal or juvenile proceedings.
        California also may have more judicial resources available than does Illinois. The average Illinois justice produces 18 published majority opinions per year, double California's figure of nine per justice. In all, the reasons given by Illinois lawyers for deep-sixing their no-citation rule appear to apply to California's rule, as well.
        What may the news from Illinois mean for California?
        As a major state, Illinois could be a tipping point, accelerating a trend under way. In June 2002, 9th Circuit Judge Alex Kozinski, testifying before a House of Representatives subcommittee, claimed that 35 states had strict no-citation rules. Since then, at least seven states have switched from banning citation to allowing it. Illinois would be the eighth. The overall score would be 24 states banning citability, 23 allowing it and the rest on the fence - essentially, a tie.
        With citability established in major states such as New York, Texas, Michigan, Ohio and now Illinois, even California might have to consider whether the time has come to stop stonewalling change.
        California's judges and lawyers might have to explain why the trend apparent in other states, and the reasons voiced in Illinois, should not be considered and accepted in California.
Stephen R. Barnett is the Elizabeth J. Boalt professor of law emeritus at Boalt Hall.