Federal Rule Change May Allow Citation to Unpublished Opinions: Ninth Circuit Opposition Stymied

150 150 Karr Tuttle Campbell

Reprinted with permission of the King County Bar Association

By Gene Barton

The Judicial Conference — the policy-making body of the federal  judiciary — has endorsed a controversial rule change that would allow  citation to unpublished opinions in federal appeals courts nationwide beginning in 2007. The conference wrapped up its work on the issue in September.

If ratified by the Supreme Court and cleared through Congress, the rule change would reverse a practice that, according to some critics,  encourages a hidden and unaccountable system of justice. The Ninth Circuit — under Circuit Rule 36-3 — is one of four circuit courts, along with the second, seventh and federal circuits, that have rules against citing unpublished opinions. Six other circuits discourage the practice.

Fifth Circuit Chief Judge Carolyn Dineen King, chair of the  conference’s executive committee, said the resolution passed by voice  vote following “a great deal of debate.” While the rule change also has  its critics, Judge King said some of the criticism was softened by an  amendment that would make it prospective only. Under the  amendment, only unpublished opinions issued after the rule’s January  1, 2007 effective date could be cited. Judge King stressed that the  circuit courts also would be able to set their own rules about the  precedential value, if any, to be given to unpublished opinions.

There has been speculation that the vote was influenced by the nomination of new Chief Justice John Roberts Jr., who — as a private practitioner and then as a judge on the D.C. Circuit Court of Appeals — served on the advisory committee that recommended the new rule, which would become FRAP 32.1. “A lawyer ought to be able to tell a court what it has done,” then-Judge Roberts said at the April 2004 meeting at which the advisory committee first endorsed the rule.

The Judicial Conference is 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. Chief Justice Roberts was in line to chair the advisory committee, but now — as chief justice — he will chair the Judicial Conference. Following the death of former Chief JusticeWilliam Rehnquist, Justice John Paul Stevens chaired the Judicial Conference during its consideration of the new rule, which was  and procedure in June of this year.

Mark Levy, a member of the advisory committee along with Chief Justice Roberts and head of the appellate advocacy group in the Washington, D.C. office of Kilpatrick Stockton LLP, said Chief Justice Roberts “took a personal interest in [what] will be a terrific change that will make the process fairer and more transparent.”

Another supporter, 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.” He postulated that the  change could have a ripple effect in California and other states that  have their own non-citation rules.

In Washington state, RAP 10.4(h) precludes the citation of unpublished opinions of theWashington Court of Appeals. A possible rule change was discussed last year by the Court Rules and Procedures   Committee of theWashington State Bar Association, but was  overwhelmingly rejected. Division Two Chief Judge Christine J. Quinn- Brintnall, a member of the committee, opposed a change to the rule,  citing the approach taken by the court and its expectations when  issuing unpublished opinions.

As many as 80 percent of all federal appellate court opinions are designated “unpublished,” but many still are available on LEXIS and Westlaw databases or from the courts themselves. Many unpublished opinions are brief dispositions drafted by law clerks or staff attorneys  as part of a practice that developed over the past 30 years as a time  saving device for overburdened judges. The practice has been  criticized for producing a body of often-conflicting opinions that did not  need to be harmonized and could not be cited or reversed.

The opposition, led by Ninth Circuit Judge Alex Kozinski, asserts that the change would exponentially increase the courts’ workload by forcing judges to polish and beef up unpublished opinions. “I don’t have any comment,” Judge Kozinski said after the vote. “I think it’s a bad idea,  but that’s what it is. Maybe the Supreme Court will overrule it.”

It was Judge Kozinski who urged his colleagues on the Ninth Circuit  and practitioners to write letters opposing the rule change. Many did so.  The website with links to all the public comments submitted by  judges, attorneys and professors to the Advisory Committee is: http://www.secretjustice.org/public_comments_re_frap_32_1.htm.  In  his own 22-page letter, Judge Kozinski — evoking visions of Uptonto  sausage making:

The Advisory Committee Note, which provides the only public insight into the Committee’s thinking, gives surprisingly short shrift to the carefully considered policy judgment of the very judges whose names appear on the dispositions in question.When the people making the sausage tell you it’s not safe for human consumption, it seems strange indeed to have a committee in Washington tell people to go ahead and eat it anyway.

In the end, proponents — among them Stephen Barnett, emeritus professor of law at the University of California-Berkley — carried the  day. Barnett said the Judicial Conference deserved credit for “refusing  to be swayed by an elaborate letter-writing campaign from the Ninth  Circuit,” adding that the conference “has followed an extensive process  of deliberation, research and reason to a courageous and laudable  result.”

This article is largely based on a story appearing on Law.com and written by Tony Mauro of Legal Times