Howard Bashman reports today in his excellent How Appealing:
In federal appellate courts, the prohibition on citing to non-precedential opinions is one step closer to the dustbin of history: Last week, the Advisory Committee on Appellate Rules governing procedure in this nation's federal appellate courts approved, by a vote of 7-1, a proposed rule that will allow any judicial disposition -- whether published or unpublished, precedential or non-precedential -- to be cited in proceedings pending before any federal appellate court. This is excellent news!Bashman has written about unpublished opinions in the past. See, for instance, this article, titled: "In 2002, Small But Important Gains Were Achieved In The Battle To Abolish Non-Precedential Federal Appellate Opinions."
At the same time, some California legislators appear to be trying to force their courts to move in this direction. Denise Howell published this entry May 12th in Bag & Baggage:
Perish The CiteAfter reading her entry, I dropped Denise this note:
A bill currently pending in California legislature, AB 1165, would alter California law to permit the citation of unpublished appellate opinions. (Existing California law provides that unpublished opinions "shall not be cited or relied on by a court or a party in any other action or proceeding.") Last week, AB 1165 failed to pass committee. I serve on the Appellate Courts Committee of the Los Angeles County Bar Association, and the Committee now has posted a number of materials related to the issue. [Note: Visit Denise's entry to access a number of linked materials.]
I'm very interested in your post! In Indiana the General Assembly can not amend the Court's rules - the separation of powers. How does this work in California?Denise not only wrote back: "I haven’t seen the separation of powers problem yet raised in the discussion about the bill but will keep an eye out—thanks for bringing it up!" but also posted this follow-up entry May 15th:
Also, following up on my earlier post about AB 1165, a reader mentioned the separation of powers difficulties that arise when legislatures seek to enact laws that may usurp the constitutional authority of the courts. This issue is addressed in the L.A. County Bar Appellate Court Committee's April 17 letter to the bill's author (available here), and the California Office of the Attorney General wrote the legislators that: "It is our opinion that AB 1165 as enacted most likely would be found to be an impairment of the core power of the Supreme Court in violation of the separation of powers clause of the California Constitution (Cal. Const. art. 111, 3)." [Note: Again, visit Denise's entry to access a number of linked materials.]What are Indiana's publication rules? Here, from the Indiana Rules of Court, Rules Of Appellate Procedure (Including Amendments Received Through July 2002):
Rule 65. Opinions and Memorandum DecisionsWhat about Indiana's administrative rulings? The Administrative Orders and Procedures Act is provides:
A. Criteria for Publication. All Supreme Court opinions shall be published. A Court of Appeals opinion shall be published if the case:
(1) establishes, modifies, or clarifies a rule of law;
(2) criticizes existing law; or
(3) involves a legal or factual issue of unique interest or substantial public importance.
Other Court of Appeals cases shall be decided by not-for-publication memorandum decision. A judge who dissents from a not-for-publication memorandum decision may designate the dissent for publication if one (1) of the criteria above is met.
B. Time to File Motion to Publish. Within thirty (30) days of the entry of the decision, a party may move the Court to publish any not-for-publication memorandum decision which meets the criteria for publication.
C. Official Reporter. West’s Northeastern Reporter shall be the official reporter of the Supreme Court and the Court of Appeals.
D. Precedential Value of Not-For-Publication Memorandum Decision. Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.
E. Certification of Opinion or Not-For-Publication Memorandum Decision. The Clerk shall serve uncertified copies of any opinion or not-for-publication memorandum decision by a Court on Appeal to all counsel of record, unrepresented parties, and the trial court at the time the opinion or memorandum decision is handed down. The Clerk shall certify the opinion or memorandum decision to the trial court or Administrative Agency only after the time for all Petitions for Rehearing, Transfer, or Review has expired, unless all the parties request earlier certification. If the Supreme Court grants transfer or review, the Clerk shall not certify any opinion or memorandum decision until final disposition by the Supreme Court. The trial court, Administrative Agency, and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.
IC 4-21.5-3-32 Final orders; public inspection; indexing; deletions; precedential effectIn short, at the administrative level the requirement is not that an order must be published to be cited; it is that an order must be indexed (presumably so all have an equal opportunity to know of its existence) to be cited. However, compliance with this requirement varies from agency to agency. With many agencies there is no publication; often there is not even a public index.
Sec. 32. (a) Each agency shall make all written final orders available for public inspection and copying under IC 5-14-3. The agency shall index final orders that are issued after June 30, 1987, by name and subject. An agency shall index an order issued before July 1, 1987, if a person submits a written request to the agency that the order be indexed. An agency shall delete from these orders identifying details to the extent required by IC 5-14-3 or other law. In each case, the justification for the deletion must be explained in writing and attached to the order.
(b) An agency may not rely on a written final order as precedent to the detriment of any person until the order has been made available for public inspection and indexed in the manner described in subsection (a). However, this subsection does not apply to any person who has actual timely knowledge of the order. The burden of proving that knowledge is on the agency.
(As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.15.)
[5/21/03 Update] IU-Indianapolis law professor Jeff Cooper had some good comments yesterday on the proposed change to the federal appellate rules in his blog, Cooped Up.
[5/23/03 Update] Tony Mauro's Legal Times column in the LA Times today is titled "Another Step Closer to Citing Unpublished Opinions." Mauro quotes the report of The Advisory Committee on Appellate Rules:
"No prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent' or the like," the proposed rule states. Another section of the rule requires parties to include copies of unpublished opinions they are citing, unless the opinions are available on a "publicly accessible electronic database."The LA Times also provides a link to a 1/23/03 story, which concludes with these interesting observations:In commentary accompanying the proposed rule, the advisory committee states, "It is difficult to justify a system that permits parties to bring to a court's attention virtually every written or spoken word in existence except those contained in the court's own unpublished opinions."
Meanwhile, one of the most common criticisms of the use of unpublished cases has fallen by the wayside. Many judges have raised concerns that unequal justice might result if large companies and other frequent litigants stay on top of unpublished decisions that individuals or small businesses don't have the time or the resources to track. But now, pretty much everything is available electronically. There is even a book, West's Federal Appendix, that publishes "unpublished" opinions from around the country.Posted by Marcia Oddi at May 19, 2003 08:18 PMLawyers in the D.C. area [who have been permitted to cite unpublished opinions in their briefs during a year-long "trial period" in the DC circuit], although they have seen little or no change in circuit briefs and rulings, continue to support the 2002 rules change. "In a number of areas, like the federal sentencing guidelines, there are a ton of unpublished opinions," says Andrew McBride, a former clerk on the D.C. Circuit and on the Supreme Court for Justice Sandra Day O'Connor, now a partner at Wiley, Rein & Fielding. "Permitting them to be cited would help avoid conflicts within the D.C. Circuit. That's a positive trend and a good thing."