June 18, 2004
Daily Journal
By Brent Kendall

        WASHINGTON - A controversial proposal to allow the citation of so-called "unpublished" opinions in all federal courts was put on hold Thursday, granting at least a temporary victory to judges and lawyers who oppose the measure.
        By a voice vote, the Judicial Conference's standing committee on rules of practice and procedure sent the proposal, known as Federal Rule of Appellate Procedure 32.1, back to an advisory committee for further study.
        Members said the decision to postpone action on the proposal was not an indication that the committee opposed it.
        Instead, they said that the committee needed more guidance on how to proceed. In addition, the committee expressed concern about the institutional effects of moving forward on a proposal that faced fierce opposition from some judges and lawyers.
        The advisory committee on appellate rules had approved the measure in April.
        Before that vote, the advisory committee received 513 written comments from judges, lawyers and professors about the proposal, most opposing it.
        Much of the opposition to the rule comes from the 9th Circuit, which prohibits the citations.
        Thirty-eight judges from the 9th Circuit wrote the advisory committee to oppose the proposal, and 200 public defenders and private practitioners from the circuit filed letters of opposition.
        Only one 9th Circuit judge, A. Wallace Tashima, wrote in favor of the rule.
        Opponents of the rule argue that allowing the citation of unpublished or nonprecedential opinions would create burdensome extra work for judges and lawyers.
        They say that judges would have to write future unpublished opinions with more care, which would take time away from published work and slow the disposition of cases.
        In addition, they suggest that judges would respond by writing fewer unpublished opinions, instead favoring more one-line dispositions that deprive litigants of the court's reasoning in their specific cases.
        Lawyers who oppose the measure say they would have to spend more time and money to sift through all the unpublished decisions.
        Supporters argue that it's wrong for a court to forbid attorneys from calling to the court's attention its own prior decisions. They also are skeptical of the dire predictions of those who oppose the citations.
        "We just don't think that there is any empirical support for these contentions," said Judge Samuel Alito Jr. of the 3rd U.S. Circuit Court of Appeals, the head of the advisory committee that approved the proposal in April.
        Nine of the 13 federal circuits allow the citation of unpublished opinions.
        Alito said that, if allowing citations of such opinions was a great burden, judges and practitioners from those nine circuits would have come forward to say so. That, he said, had not happened.
        Banning citation of unpublished opinions, Alito said, sent the message that there was "something second-class, and probably illegitimate, about them."
        But members of the rules committee said that little empirical data had been gathered to prove or disprove each side's arguments.
        "I'd prefer to know what's been happening in those circuits that allow [the citation of] unpublished opinions," said U.S. District Judge Mark Kravitz of Connecticut.
        Kravitz said the committee didn't know how often the opinions were cited, whether the citations were being misused, and whether courts who allowed the citations had slower disposition times as a consequence.
        Kravitz said it would be better to consider the proposal after gathering that information, instead of voting on gut instinct about which side was right and which was wrong.
        Chief Judge David Levi of the U.S. District Court for the Eastern District of California, the chair of the rules committee, said that over the years the panel had gathered as much empirical data as it could before deciding controversial issues.
        The committee, Levi said, needed a better understanding of the issue and a neutral basis from which to make a decision.
        He added that the committee needed to know more about how unpublished opinions functioned in each circuit.
        Taking more time to consider the matter, Levi said, "could take a lot of the hot air or contentiousness out of the issue."
        All committee members agreed on the need to move slowly .
        Judge Harris L. Hartz of the 10th Circuit said he favored the proposal, but he added that he "has a lot of sympathy" for those who oppose it.
        "I think a delay is important," Hartz said.
        Committee member Charles Cooper of Cooper & Kirk in Washington, D.C., said that "the practical consequences that those judges fear are quite plausible."
        In addition to the 9th Circuit, the other circuits that prohibit the citations are the 2nd, 7th and Federal circuits.
        In April, state Sen. Sheila Kuehl, D-Santa Monica, dropped a bill that would have allowed lawyers to cite unpublished opinions in California courts.
        Kuehl instead asked Chief Justice Ronald George to study the issue.