Anastasoff, unpublished opinions, and federal appellate justice.

AuthorTobias, Carl

In Anastasoff v. United States, (1) a three-judge panel of the United States Court of Appeals for the Eighth Circuit recently invalidated the court's local rule of appellate procedure providing that "unpublished opinions are not precedent and parties generally should not cite them." (2) Eighth Circuit Judge Richard S. Arnold authored the opinion, holding that this local requirement violates Article III of the United States Constitution. Regardless of whether the provocative decision in Anastasoff is constitutionally sound, the opinion trenchantly emphasizes the critical significance of a public policy issue that has remained essentially untreated for too long.

Judge Arnold's Anastasoff opinion perceptively identifies the substantial complications created by burgeoning caseloads and the static resources available to resolve these appeals. It cogently admonishes that the federal judicial system is in serious difficulty if the volume of appellate filings and temporal restraints preclude the circuit bench from attributing precedential value to each case. Judge Arnold concomitantly rejects the proposition that deficient resources prevent judges from according all appeals precedential effect. He also repudiates the notion that appellate courts are currently developing an underground corpus of law that applies only to the litigants in a particular case. Instead, he argues that there must be sufficient resources to address mounting caseloads adequately, and if these funds are unavailable, every judge must devote the requisite time to treat each of the filings competently, even if backlogs increase.

The three-judge panel, thus, threw down the constitutional gauntlet by invalidating the Eighth Circuit local rule while most other appellate courts continue to enforce analogous provisions. Evaluating the threat to the delivery of appellate justice posed by these local requirements as discussed in the Anastasoff opinion, however, is more important. This Comment also seeks to explore the most promising solutions to that pressing legal and public policy problem.

Part I of this Comment, therefore, traces the problem of a historical growth in caseloads without a corresponding rise in resources as addressed by the Eighth Circuit decision. Part II evaluates the Anastasoff holding and its implications. Increasing appeals, scarce resources, and the restrictions imposed by procedures like the Eighth Circuit local rule may well jeopardize modern appellate justice, as Judge Arnold's opinion eloquently demonstrates. Part III then presents recommendations for addressing this situation. It analyzes remedies that might solve or at least ameliorate these problems at the appellate level, principally through reductions in the volume of cases that attorneys and parties consider filing and, should this possibility prove deficient, measures that would respond directly to those appeals actually pursued in a prompt, inexpensive, and fair manner.

  1. HOW CASELOAD GROWTH AND SCARCE RESOURCES ERODED DELIVERY OF APPELLATE JUSTICE

    The problem of expanding appellate caseloads, scarce resources, and increased reliance on unpublished opinions has received thorough examination by legal scholars. (3) The quantity of appeals from federal district court decisions has increased steadily since the 1970s. (4) Congress has partially addressed this expansion by committing more resources to the federal appellate judiciary, but its effort has been insufficient and may have even imposed various disadvantages. For instance, lawmakers have authorized additional active appellate court judgeships, but the number of new judicial positions has apparently failed to keep pace with exponential docket growth and might have actually contributed to the erosion of judicial collegiality and consistent decisionmaking. Congress has simultaneously enlarged the courts' administrative staff and their responsibilities, although this expansion may have aggravated the bureaucratic nature of the appellate justice system. (5)

    The responses to caseload growth with scarce resources have also varied among the regional circuits. (6) Practically all appellate courts have limited the procedures they accord appeals, especially by screening them in terms of their perceived significance and difficulty. For example, courts have granted oral arguments in a declining percentage of appeals, and the parties that do secure them frequently have less time to argue. (7) The appellate courts have also promulgated local rules governing opinion publication and citation identical or analogous to the Eighth Circuit provision invalidated by the Anastasoff panel. These prescriptions typically authorize three-judge panels or their individual members to designate certain decisions as unpublished, thus limiting their precedential effect. (8)

    Escalating appellate court caseloads, the static resources available for treating them, and the circuit bench's responses to those considerations have had detrimental consequences for lawyers, litigants, judges, and appellate justice. Most important, the judiciary's curtailment of procedural opportunities has significantly limited the expeditious, economical, or equitable disposition of appeals. Only in a dwindling percentage of cases is there comprehensive resolution on the merits after full briefing and oral argument before a panel of three circuit judges, (9) thereby restricting the visibility and accountability of the appellate bench. (10) This phenomenon decreases the ability of litigants to present their views thoroughly before the bench and to clarify matters that their briefs might not address. Reduced publication limits judges' responsibilities to justify their substantive determination and may erode public confidence in appellate decisionmaking.

  2. ANALYSIS OF THE ANASTASOFF OPINION

    In Anastasoff, the appellant asserted "precisely the same legal argument" that the Eighth Circuit had rejected eight years earlier in Christie v. United States. (11) The appellant contended, however, that the earlier ruling did not bind the three-judge panel because Christie was unpublished and, therefore, not a precedent under Eighth Circuit local appellate rule 28A(i), providing that "unpublished opinions are not precedent and parties generally should not cite them." (12) Yet the Anastasoff panel rejected this argument, holding that "the portion of Rule 28A(i) that strips the precedential weight of unpublished opinions is unconstitutional under Article III, as it purports to confer on the federal courts a power that extends beyond the `judicial.'" (13)

    In the second part of the decision, Judge Arnold supported the panel's substantive holding with a comprehensive historical exegesis on the doctrine of precedent. The jurist proclaimed that the concept was "well established" by the time of the Constitutional Convention. He also demonstrated that in the eighteenth century the judge's obligation to honor precedent emanated from the fundamental character of the judicial power, and that Alexander Hamilton, James Madison, as well as the Anti-Federalists "assumed that federal judicial decisions would become authorities in subsequent cases." (14)

    In short, the doctrine of precedent was "well-established in legal practice, regarded as an immemorial custom," and "valued for its role in past struggles for liberty." (15) The duty of federal courts to follow previous opinions, meanwhile, "was understood to derive from the nature of the judicial power itself and the need to prevent it from creating a dangerous union with legislative authority." (16) Judge Arnold, thus, concluded "that, as the Framers intended, the doctrine of precedent limits the `judicial power' delegated to the courts in Article III." (17)

    In this section of his decision, Judge Arnold also explained what the case did not involve. The question Anastasoff presented was not whether appellate courts should publish opinions, "but whether [unpublished opinions] ought to have precedential effect." (18) He carefully observed that "`unpublished' in this context has never meant `secret'"...

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