DATE: October 12, 2002
TO: Advisory Committee on Appellate Rules
FROM: Patrick J. Schiltz, Reporter
RE: Item No. 01-01
At its April 2002 meeting, the Committee decided to move forward on the Justice Departments proposal that a new Rule 32.1 be added to the Appellate Rules to impose a uniform rule regarding the citation of non-precedential opinions. Although the Committee supported this proposal in principle, members raised a number of concerns about the specifics of the Departments draft rule. I agreed to take a look at this issue and prepare a revised draft.
Attached please find three alternative drafts of a proposed Rule 32.1:
Alternative A is the most sweeping. It specifically authorizes courts to issue non-precedential opinions and permits their citation without qualification.
Alternative B is the second most sweeping. Unlike Alternative A, it addresses only the citation of non-precedential opinions. However, unlike Alternative C, it permits the citation of such opinions without qualification.
Alternative C is the least sweeping. It addresses only the citation of non-precedential opinions, and it permits such citation only in limited circumstances. (Alternative C is, in essence, the Justice Departments original proposal.)
I have prepared these alternative drafts for a couple of reasons. First, the issue of non-precedential opinions has been a recurring one during the recent history of the Committee. It may be helpful to get all issues and all alternatives on the table, so that this issue might be put to rest for at least a few years. Second, the Committee may want to publish a broader proposal than it anticipates approving. This would allow for a full public airing of all of the issues, and it would give the Committee room to "compromise" down the road. Publishing Alternative A might also give comfort to those judges who could be persuaded to support a rule on citation (Alternative B or C), but for their fears that such a rule is a first step toward abolishing non-precedential opinions altogether.