No-citation rules under siege: a battlefield report and analysis.

• Author: Barnett, Stephen R.

"The assault upon the citadel of no-citation rules is proceeding in these days apace." Cardozo didn't exactly say that, (1) but if he were here today, he might. "Unpublished" (2) judicial opinions and rules prohibiting their citation are under attack on several fronts. I report here on three of those venues: (1) the federal circuit courts of appeals, (2) the states, and (3) the rulemaking process of the federal judiciary. Each has seen important developments recently. The federal rulemakers, for their part, currently are receiving public comments on a major proposed new rule, one that presents significant questions of drafting as well as of policy.

1. THE FEDERAL CIRCUITS

   Among the individual federal circuit courts of appeals, the major news is from the First Circuit. Effective in December 2002, that court dropped its rule that allowed citation of unpublished opinions only in "related cases." (3) The First Circuit adopted instead a rule cautioning that "[c]itation of an unpublished opinion of this court is disfavored," but allowing such citation "if (1) the party believes that the opinion persuasively addresses a material issue in the appeal; and (2) there is no published opinion from this court that adequately addresses the issue." (4) Further, "[t]he court will consider such opinions for their persuasive value but not as binding precedent." (5)

   Grudging as the language may be, this move by the First Circuit, coming a year after a similar turnabout by the District of Columbia Circuit, (6) means that nine of the thirteen circuits now allow citation of their unpublished opinions. The circuits permitting citation are the First, (7) Third, (8) Fourth, (9) Fifth, (10) Sixth, (11) Eighth, (12) Tenth, (13) Eleventh, (14) and D.C. (15) Circuits. Those still forbidding citation are the Second, (16) Seventh, (17) Ninth, (18) and Federal (19) Circuits. Nine of thirteen is a substantial majority; citability of unpublished opinions thus comes close to being the norm in the federal circuits today. (20)

   In another federal court development, the Fifth Circuit, which already allowed its unpublished opinions to be cited, in July 2003 broke down and joined all but one of the other circuits in putting those opinions online at the court's website. (21) That leaves the Eleventh Circuit as the last holdout refusing to put its unpublished opinions online. This will have to change in two years, when the E-Government Act of 2002 (22) takes effect. That Act requires each circuit to maintain a website affording access--in a "text searchable format"--to "all written opinions issued by the court, regardless of whether such opinions are to be published in the official court reporter." (23)

2. THE STATES

   1. The Serfass-Cranford Findings and Judge Kozinski's Testimony

      It may not have attracted much attention, but there is a lot going on in the states. State activity with respect to citation of unpublished opinions tends to draw little national notice; not only are there some four times as many states as federal circuits to take into account, but the states differ in their court systems and in the kinds of "opinions" their courts issue. Some states have no intermediate appellate courts, and hence, no unpublished opinions of those courts. In some states, the supreme court issues unpublished opinions. Some states have no unpublished opinions but do have unpublished dispositions without opinion. Further, a state's "rule" with respect to citing unpublished opinions may not be easy to find, existing as it sometimes does in caselaw (not always clear and consistent) or even in custom.

      Merely to collect, let alone to classify and compare, the rules of all the states is therefore a substantial undertaking. Pioneers in the task were Melissa M. Serfass and Jessie L. Cranford, who reported their results in this Journal in 2001. (24) In June 2002, the Serfass-Cranford study was relied on by Judge Alex Kozinski of the Ninth Circuit in testimony he gave before a subcommittee of the House Judiciary Committee. (25) Judge Kozinski produced a chart counting and classifying the rules of all the states as reported by Serfass and Cranford. (26)

      As a gauge of the trend in the states, it may be instructive to compare the situation that prevailed some two and one-half years ago, as reported by Serfass and Cranford and Judge Kozinski, with the situation prevailing today. I propose first to do this, in order to identify the changes that have taken place recently. Then I will integrate the most recent data into a complete survey of today's state rules on citing unpublished opinions, updating and revising the work of Serfass and Cranford.

   2. Judge Kozinski's Report Compared with the Situation Today

      In his statement to the House Judiciary subcommittee, Judge Kozinski, a champion of no-citation rules, (27) defended those rules with his usual force, pungency, and wit. Judge Kozinski said nothing about the then-existing rule count in the federal courts. (Eight of the thirteen circuits allowed citation of unpublished opinions, a figure since increased to nine of thirteen. (28)) Instead, Judge Kozinski looked to the states for numerical help. (29) He asked, "Are Federal Courts Unique in Prohibiting Citation to Unpublished Decisions?" and answered, "[E]mphatically no." (30) For this, Judge Kozinski cited the "very revealing" findings of Serfass and Cranford, which showed that "[t]he vast majority of state court systems restrict citation to unpublished decisions." (31) Specifically, Judge Kozinski calculated from the Serfass-Cranford findings that thirty-eight states (plus the District of Columbia) "restrict citation to unpublished opinions to some degree." (32) And, he continued, "[B]y far the largest number (35) have a mandatory prohibition phrased much like the Ninth Circuit's rule." (33)

      In comparing the Serfass-Cranford-Kozinski findings with the situation today, (34) the striking fact is that in the two and one-half years since those findings were compiled, six states have switched from not allowing citation of unpublished opinions (35)--what Judge Kozinski calls a "mandatory prohibition" (36)--to allowing it. Three of those states now permit citation of unpublished opinions as "precedent": Texas, (37) Utah, (38) and West Virginia. (39) The other three permit it for "persuasive" value: (40) Alaska, (41) Iowa, (42) and Kansas. (43) A seventh state, Ohio, has switched from allowing citation for persuasive value to allowing it for whatever weight is deemed appropriate by the court. (44)

      In addition, two states that still prohibit citation currently have before their supreme courts proposed rule changes that would allow citation for persuasive value: Hawaii (45) and Illinois. (46) The possibility thus exists that eight states will have moved out of the "no citation" column since Judge Kozinski compiled his data.

   3. Classifying and Counting the States

      Classifying the states with respect to their positions on citing unpublished opinions can be difficult, for reasons I have suggested. Not only are the facts often murky, but the bottom-line decision often involves a judgment call that could go either way. Indeed, I count five states as having a foot in both camps and thus being "too close to call"--although that call, too, is arguable. Nonetheless, I have grouped the states into five categories, as follows (in order of declining citability):

      1. No Unpublished Opinions or No Rule against Citation

         This category contains four states: Connecticut, (47) Mississippi, (48) New York, (49) and North Dakota. (50)

      2. States That Allow Citation of Unpublished Opinions as "Precedent"

         In this category I count five states: Delaware, (51) Ohio, (52) Texas, (53) Utah, (54) and West Virginia. (55)

      3. States That Allow Citation for "Persuasive Value"

         In this category I count twelve states: Alaska, (56) Iowa, (57) Kansas, (58) Michigan, (59) New Mexico, (60) Tennessee, (61) Vermont, (62) Wyoming, (63) Virginia, (64) Minnesota, (65) New Jersey, (66) and Georgia. (67)

      4. States Too Close to Call

         Some states seem in equipoise between allowing citation and forbidding it. For example, they may have conflicting practices for different classes of unpublished opinions. Also included here are the two states, Illinois and Hawaii, that are considering proposals to reverse their rules and allow citation. I therefore classify five states as on the fence: Hawaii, (68) Illinois, (69) Maine, (70) Oklahoma, (71) and Oregon. (72)

      5. No-Citation States

         That leaves what Judge Kozinski calls "mandatory prohibition" states, in which citation is forbidden (except, of course, for related cases). Relying on the Serfass-Cranford data, Judge Kozinski counted thirty-five such states. (73) I now count twenty-five: Alabama, (74) Arizona, (75) Arkansas, (76) California, (77) Colorado, (78) District of Columbia, (79) Florida, (80) Idaho, (81) Indiana, (82) Kentucky, (83) Louisiana, (84) Maryland, (85) Massachusetts, (86) Missouri, (87) Montana, (88) Nebraska, (89) Nevada, (90) New Hampshire, (91) North Carolina, (92) Pennsylvania, (93) Rhode Island, (94) South Carolina, (95) South Dakota, (96) Washington, (97) and Wisconsin. (98) Because my count includes four states that Judge Kozinski did not include, (99) there are fourteen states that are counted as no-citation by Judge Kozinski but removed from that column by me, on the basis either of intervening events or of further research. (100)

   4. Summary

      A summary of my results is shown in the table in the Appendix. Setting aside the five fence-sitters, I find four states that have either no unpublished opinions or no rule against citation; five states that allow citation of unpublished opinions as precedents; and twelve states that allow citation for persuasive value. That adds up to twenty-one states in which citation is permitted, as compared with the twenty-five states in which it is forbidden. This slim margin would not appear to make the no-citation states today "by far...