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Wednesday, April 12, 2006

Law - U.S. Supreme Court Votes to Allow Citation to Unpublished Opinions in Federal Courts

Law.com is reporting:

The Supreme Court on Wednesday adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The justices' vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts. Currently, four federal circuits ban the citation of unpublished opinions outright, while six others discourage it.
Here are some quotes from the story, by Tony Mauro of Legal Times:
The justices' vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts nationwide. In some circuits these dispositions have no precedential value and cannot be cited.

"Unpublished" is a misnomer, since most of these opinions are available now on legal databases. But some federal judges have argued that if this category of opinions can be cited and used as precedent, they will take more time to decide and write, sharply increasing the backlog of cases. Many sentencing appeals, for example, are resolved by unpublished opinions. The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it.

Under the new rule, circuits will still be able to give varying precedential weight to unpublished opinions, but they can no longer keep lawyers from citing them -- in the same way lawyers cite rulings from other circuits or other authorities, such as law review articles. * * *

The advisory committee's original recommendation was to allow the citation of all unpublished opinions, past and future, but the Judicial Conference last September added an amendment to make the rule prospective, allowing the citation only of those rulings issued on or after next Jan. 1. The high court adopted that amendment in the rule change it promulgated Wednesday.

Unpublished opinions first came into vogue in the 1960s as a time-saving device for appellate judges. Though the propriety of an essentially secret judicial process has been debated for years, the catalyst for change came in 2000, when the late 8th Circuit Judge Richard Arnold ruled in a routine case that stripping unpublished opinions of precedential value was unconstitutional because it gave judges a power not authorized by Article III of the Constitution.

The ILB has had numerous entries over the past several years on the use of not-for-publication opinions by the our state Court of Appeals. (Ironically one was earlier this afternoon.)

The difference is that in the federal court system, "unpublished" decisions are in fact readily accessible online, but as Mauro's story points out, "The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it."

At the Indiana state court level, Appellate Rule 65 allows Court of Appeals judges to designate opinions as not-for-publication if they meet the Rule's criteria. Rule 65(D) provides:

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.
In addition, the Court does not publish the opinions on its website and they are not posted by the commercial legal services. The only way to obtain a not-for-publication opinion is from the Clerk of the Courts -- if you know its name.

It became easier to know the names last fall when the Clerk agreed to provide its list of NFP decisions to the ILB at the end of each week. The first such list was posted August 19, 2005. (Of course, this list is also available via the commercial services.) The lists show that over 70% of the Court of Appeals opinions are unpublished.

Here is a more detailed ILB entry on this issue from July 13, 2005. It concludes:

In Indiana, as noted earlier, opinions designated by the Court of Appeals panel as "not-for-publication" are neither generally available nor citeable. But they are public documents. Why should they not be made available online, along with the other rulings of the Court of Appeals?
Finally, this ILB entry from Oct. 21, 2005, includes, among other things, quotes from a 1997 article in which Judge Staton discusses the pros and cons of the NFP issue, ending with:
The debate and controversy will likely continue. For now, the rule remains in Indiana that the court of appeals may issue written but unpublished, memorandum decisions to decide routine cases where precedent has already been established.

Posted by Marcia Oddi on April 12, 2006 06:31 PM
Posted to General Law Related | Ind. App.Ct. Decisions