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Should Maryland adopt the new federal rule permitting unpublished cases to be cited as persuasive authority?

As I’ve written previously in this paper, unpublished opinions that are of non-precedential value make poor public policy and may be unconstitutional (“Need to Reform Unpublished Opinions in Maryland,” Michael Wein, The Daily Record¸ Sept. 19, 2003).

To follow up on the topic: On April 12, the Supreme Court of the United States forwarded to Congress various new federal rules, including Proposed Federal Rule of Appellate Procedure 32.1. The relevant portion of proposed Rule 32.1 reads:

“A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:

(i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and

(ii) issued on or after January 1, 2007.” Avail

Now, unless Congress were to surprisingly pass legislation blocking the recommendations of the Advisory Committee on Appellate Rules (previously headed by now-Supreme Court Justice Samuel Alito), the Judicial Conference of the United States and the Supreme Court, this rule would prevent a U.S. Circuit Court from prohibiting the citation of an unpublished decision beginning Jan. 1, 2007.

This would have the effect of overruling the citation rules in the 2nd, 7th, 9th, and Federal Circuits, which currently prohibit even the citation of an unpublished opinion. Rule 32.1 would apparently leave intact the existing rules of the other nine circuits that permit the citation of non-published opinions, not for precedential value, but for their ‘persuasive’ value. (The D.C. Circuit Rule permits an unpublished opinion entered after Jan. 1, 2002 to be cited as precedent.) Greater overall quality

The intended effect of Rule 32.1 is not only to provide inter-circuit uniformity, but to make all federal appellate decisions, at a minimum, to be of ‘persuasive’ value for other future cases. It is also the fervent hope of the those that support the end of “no-citation” rules that federal appellate decisions designated as “non-published” would have an overall greater quality of judicial decision-making involved, so that not only will a U.S. Circuit Court be unable to ignore prior on-point opinions by the court due to the classification of being “non-published,” but that future opinions by the court will be of greater overall quality, due to the need to ensure that opinions are in compliance with precedential case law from that circuit and the Supreme Court.

Similarly, here in Maryland under Maryland Rule 1-104, unreported opinions (i.e. unpublished opinions) cannot be cited except under the doctrines of law of the case, res judicata or collateral estoppel, and are “neither precedent within the rule of stare decisis nor persuasive authority.”

It should be noted that many of the unpublished decisions that do come out in the U.S. Circuit Courts tend to be much shorter and less detailed than their published counterparts, and are not generally written by judges, but by their law clerks or the circuit’s staff attorneys. The same is generally true in Maryland, though Maryland does have a fair number of longer and detailed opinions that are nevertheless still classified as unpublished.Follow the federal lead

While I have argued and continue to argue that Maryland should permit unpublished opinions to be of precedential value, there is little justification at the present time for Maryland to not follow the lead of the federal courts in making unpublished opinions to be of at least ‘persuasive’ value. Although there may not be enough time to enact a rule to compliment Federal Appellate Rule 32.1 by Jan. 1, 2007, such a rule should be enacted by Jan. 1, 2008.

Maryland’s present unreported opinion rule permits the Court of Special Appeals to come out with a well thought-out discussion on important issues covering 40 pages on a particular case, and but for the arbitrary decision to classify the case as ‘unreported,’ this case cannot be cited for use in other cases, even on almost identical circumstances. The non-citation rule in Maryland also explains why the legal database services of Lexis and Westlaw do not have these decisions available for use, making it difficult for a legal practitioner to know if a prior related unreported decision exists and to obtain a copy of this decision.

Unfortunately, quoting Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals to the Advisory Committee on Appellate Rules, in part because judges do not write these opinions, “unpublished opinions tend to be thin on the facts and written in loose, sloppy language” and take five to 10 minutes for the panel of judges to sign off on.

Judge Kozinski cites this as the primary reason for having a ‘no-citation’ rule. In fact, this disregard for unpublished decisions is why, policy-wise, the state of Maryland should at its earliest opportunity enact a change in Rule 1-104 to permit these opinions to be cited for their ‘persuasive’ value, so that these unreported decisions cannot be so casually discarded as being completely inconsequential outside of the particular case.

Precedent, even of a persuasive nature, acts as an internal safeguard to ensure that judicial decisions are decided, not in a vacuum cut off from the rest of common law, but based on a fair reading of prior precedent, and that the decision can be transparently cited to later as precedent in a similar case. Lexis and Westlaw would presumably include these unreported Maryland decisions in their databases, once they are of a persuasive value, leading to greater openness in the judicial process. This will permit a greater amount of intrinsic quality in our appellate courts, to ensure that litigants, even those who may be poor and unable to hire quality attorneys, see that their appeal is done in a professional and thorough manner.

Appellate courts must understand that it is not sufficient to have an appeal decided with a few-page opinion that probably was never even scrutinized by a judge. The federal courts, which started the trend towards unpublished opinions in the 1960s, have finally taken an important step towards reversing the worse aspects of these opinions, and Maryland should follow suit.

Michael Wein is an attorney in Greenbelt, Maryland, whose practice concentrates in appellate, civil and criminal litigation. He can be reached at 301-441-1151, or [email protected]