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Thursday, May 29, 2014

Ind. Courts - Is App. Rule 65(D) more honored in the breach than the observation?

The deadline has passed for submitting comments to the Rules Committee on the proposal to amend Appellate Rule 65(D) to permit Not-for-Publication (NFP) opinions to be cited. But the ILB has gathered some additional research that might be worthy of consideration.

The dilemma lawyers find themselves in with respect to Rule 65(D) was well stated by Professor Joel Schumm in this April 15, 2011 post:

In the course of research a lawyer finds a really helpful NFP. They want to use the rationale (or even quote some of the language) but cannot cite it because it's NFP. If they use it and don't cite, they commit plagiarism. If they use it and cite it, they violate the Appellate Rules. If they don't use it at all, they are probably failing to make important points that would help their case.
In this May 9th, 2014 ILB post about an appellate practice CLE seminar, Prof Schumm wrote:
A number of speakers suggested the citation of memorandum decisions happens with some regularity. No one condemned the practice, and one clerk mentioned it won’t get lawyers into trouble but should be done in a footnote. The clerk will read the unpublished opinion that lawyers cite — despite the lawyer’s complete disregard of the rule.

Appellate litigation should be a level field where everyone plays by the same rules. This rule seems outdated to me — but it’s still a rule. Lawyers should email their comments on the proposed changes by next Tuesday instead of ignoring the rule.

Another attorney wrote to the ILB this week:
I’ve had two appeals in the last year where the attorneys (well respected appellate attorneys) cited NFP for their substantive value … with impunity.
Judicial Admonitions Against Citing NFPs

Through a Google Scholar search for "Appellate Rule 65(D)" the ILB has been able to locate a number of Court of Appeals opinions reprimanding attorneys who have referenced NFPs. The results include:

And as recently as this month, during a May 14th oral argument, two Court of Appeals judges quite sternly reprimanded an attorney for citing NFP opinions in his brief.

From about 25 minutes in:

CJ Vaidik: You're aware of the fact that you can't cite nonpublished opinions, aren't you?

Attorney: I am aware that some judges accept them and some don't.

CJ: No. The rules provides that you are not to cite not for publication opinions and you have done so in this case and there's not some judges that accept them and some judges don't. The rules are the rules. So I wonder, as I look through your brief, what rules you have chosen to follow and what rules you haven't.

Attorney: [apologizes and offers to withdraw the case cited]

CJ: I'll tell you right now, as far as I'm concerned it is cut out of the brief and no one is considering it.

From about 40 minutes in:
J.Barnes: More of an observation than a question, I wish that the slavish detail and punctiliousness you ascribe to 34(C) would have been observed with regard to the unpublished memorandum decision.
But these admonitions do not appear to be universally followed by the court itself. May the appellate courts use NFP cases as precedent, or refer to them at all, while attorneys are prohibited from so doing by court rule?

Instances Where NFP Opinions Have Been Cited by the Supreme Court and the Court of Appeals, Despite Rule 65(D)

Near the end of this Oct. 27, 2008 post, the ILB quoted from three 2008 Court of Appeals opinions which referenced or relied on NFP opinions.

At the time, the ILB noted: "Two of these examples were sent to me by a reader; I happened on to the third. There appears to be no way to search for these citations, which refer to the case number rather than to the N.E.2nd cite, past the time when the case would have been published in the NE Reporter."

New Research. But this month the ILB heard from an attorney who has devised a Westlaw search showing that NFPs frequently have been cited by the appeals courts. What follows are some results of the search. The bottom line - review of just 200 of the more than 10,000 NFP decisions revealed that almost every active Court of Appeals judge has either written or been part of a panel decision citing NFP decisions. Although Rule 65(D) provides that NFP decisions can be cited only "to establish res judicata, collateral estoppel, or law of the case," the following table shows that the Court of Appeals is sometimes citing them for reasons other than those allowed by Rule 65(D). Although this is a small sample, most of the dozen cases listed rely on NFPs as precedent.

The attorney adds another interesting note - many NFPs are being cited by secondary sources (Indiana and others) for substantive legal points. For example, NFP decision Bell Financial Community Credit Union v. Nagy, 862 N.E.2d 726 (Ind.Ct.App. 2007) has been cited by twelve different secondary sources; NFP decision Stillwell v. Deer Park Mgmt., 877 N.E.2d 227 (Ind. Ct. App. 2007) has been cited by seven.

Writing Judge (Panel) Opinion Unpublished Decisions) Cited
Dickson (unanimous SCT) Kosarko v. Padula, 979 N.E.2d 144, 149 (Ind. 2012) Loudermilk v. Jet Credit Union, No. 49A02–1006–PL–665, 2011 WL 5927428, *2–*3 (Ind.Ct.App. Nov. 29, 2011)
Barnes (concurring) Peterink v. State, 971 N.E.2d 735, 738 (Ind. Ct. App. 2012) aff'd in part, vacated in part, 982 N.E.2d 1017 Tumbleson v. State, No. 90A02–1107–CR–613, 2012 WL 172873 (Ind.Ct.App. Jan. 20, 2012)
May (Brown) Bocanegra v. State, 969 N.E.2d 1026, 1030 (Ind. Ct. App. 2012) Arline v. State, 959 N.E.2d 402 (Ind.Ct.App.2011), Jones v. State, 957 N.E.2d 214 (Ind.Ct.App.2011), and Stewart v. State, 873 N.E.2d 1144 (Ind.Ct.App.2007), trans. denied
Crone (Riley, Bailey) Cruser v. State (NFP), 973 N.E.2d 107 (Ind. Ct. App. 2012) Bailey v. State, No. 49A02–1106–CR–487, slip op. at 3 (Ind.Ct.App. Feb. 3, 2012)
Robb (Barnes, Bradford) M.J. v. State (NFP), 958 N.E.2d 497 (Ind. Ct. App. 2011) D.H. v. State, 950 N.E.2d 36, *1 (Ind.Ct.App.2011)
Bailey (Freidlander, Kirsch) Old Path Baptist Church v. Washington Cnty. Health Dep't (NFP), 888 N.E.2d 1288 (Ind. Ct. App. 2008) Lewis v. Washington County Health Dept., No. 88A01–0608–CV–354, slip op. at 1, (Ind. Ct.App. June 25, 2007)
Kirsch (Riley, May) Smiley v. State [NFP], 883 N.E.2d 228 (Ind. Ct. App. 2008) Creech v.. State, No. 35A02–0612–CR–1140 (Ind.Ct.App. Aug. 6, 2007)
Darden (Baker, Robb) Thomas v. State [NFP], 865 N.E.2d 724 (Ind. Ct. App. 2007) Guzman v. State, 857 N.E.2d 28, 28 (Ind.Ct.App.2006)
Friedlander (Crone) Trustcorp Mortgage Co. v. Metro Mortgage Co., 867 N.E.2d 203, 212 (Ind. Ct. App. 2007) Bozarth v. Todd & Langley Const., 857 N.E.2d 449 (Ind.Ct.App.2006)
Darden (Mathias, Kirsch) Blackman v. State, 868 N.E.2d 579, 585 (Ind. Ct. App. 2007) New v. State, 858 N.E.2d 255, 256 (Ind.Ct.App.2006)
Baker (dissenting) Robinson v. State, 799 N.E.2d 1202, 1207 (Ind. Ct. App. 2003) Best v. State, No. 32A01-0305-PC-191, 797 N.E.2d 873 (September 24, 2003)
Robb (Baker, Freidlander) Reed Sign Servs., Inc. v. Reid, 760 N.E.2d 1102, 1103 (Ind. Ct. App. 2001) Salsbery v. Lalsbery, 34A02-9912-CV-840, slip op., 736 N.E.2d 350 (Ind.Ct.App.2000)

Note: You may look up the opinions yourself using the links in the table. The ILB has also prepared a list of the references the opinions in the table make to the NFPs listed. Access it here.

Summing Up

As stated at this beginning of this post, lawyers who find a NFP opinion on point may face a dilemma, as may attorneys who conscientiously follow the rules. Appellate court panels sometimes admonish lawyers for not obeying the prohibition of Rule 65(D), but some panels are also citing NFPs as precedent themselves, or otherwise referencing them. App.Rule 65(D) does appear to be more honored in the breach than the observation, by both the bench and bar.

Does this mean adherence to Rule 65(D) should be strictly enforced? Or should the Rule, which already has lost all rationale for its existence (see May 9th post), be liberalized or discarded entirely?

Posted by Marcia Oddi on May 29, 2014 08:54 AM
Posted to Indiana Courts