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Editorial Advisory Board: Let unpublished opinions be seen, cited

Seven in eight decisions issued by the Court of Special Appeals (“COSA”) are “unpublished.” That means that the opinion cannot be cited (except for preclusion purposes), and that it lacks precedential value. Moreover, the opinions are not only unpublished, but are unavailable to the general public.

In other words, the unpublished opinions of the COSA, although available to a few on-line subscribers, cannot be accessed electronically by the general public. They are not available at either of the state’s law schools. If you want to read an unpublished opinion, and you are not part of the favored few with access, you must purchase a copy from a third-party vendor (such as The Daily Record) or go to Annapolis and read the opinion in the court’s library or in the State Bar Library.

This makes no sense. All of the court’s opinions should be readily available online. That availability fosters accountability; without ready access to the court’s work-product, it is impossible for the public and scholars to know whether the judges have done their jobs properly. In other words, easy access to opinions makes it possible for outsiders to determine the fairness and accuracy of the court’s decision-making.; transparency in the form of on-line opinions is needed to ensure that judges have done their jobs properly.

Our system gives great power to judges; it is important that that power be subject to external checks. Moreover, the court’s decisions often have an impact broader than on the parties themselves. Consider litigants whose family law dispute involves third parties—they need to know how a case has been resolved; under the current practice, they have to go to Annapolis to find out the result. That is wrong.

We have only heard of one reason why unpublished opinions should not be readily available: A fear among some judges, at least, that if available, the opinion will be cited. We do not understand why the court does not want its opinions to be cited; after all, until forty years or so ago all opinions (and pretty much anything else) could be cited. In any event, the federal experience with citation of unpublished opinions reveals that COSA should not be worried about citation of unpublished opinions.

In 2006, after a long and bitter fight, the federal judiciary adopted F.R. A.P. 32.1, which permits full citation of unpublished opinions. Rule 32.1 was adopted following studies conducted by the Federal Judicial Center of the impact of changing from a system of no-citation to citation of unpublished opinions. The study found that both lawyers and judges in circuits which permitted citation of unpublished opinions had no trouble with their citation.

Although that study has been around for more than a decade, and Rule 32.1 has been in place for six years with no apparent problems, the COSA still refuses to permit citation of its unpublished opinions. Moreover, the COSA has not explained — ever — why it prohibits citation of unpublished opinions and does not make those opinions available online.

We call upon the Judiciary and the Rules Committee to make all of the decisions of the COSA available online and available for citation where appropriate.

Editorial Advisory Board member Frederic Smalkin did not participate in this opinion.

Editorial Advisory Board

James B. Astrachan, Chair

John Bainbridge

Wesley D. Blakeslee

Eric Easton

Arthur F. Fergenson

Elizabeth Kameen

C. William Michaels

William Reynolds

Frederic Smalkin

Norman Smith

H. Mark Stichel

Ferrier R. Stillman

Christopher West

One comment

  1. I am certain that one of the other reasons the court does not want public access to their opinions is that the public will then be able to see how poorly written and reasoned many of them are, especially in the area of criminal law where the court’s mantra is: affirm at all costs.