Waiving Goodbye To Your Best Issues On Appeal
By Howard J. Bashman
Monday, May 10, 2004

April 2004 marked another turning point in the ongoing battle over whether appellate courts should prohibit citation to opinions designated as unpublished or non-precedential. On April 13, 2004, the Advisory Committee on Appellate Rules of the U.S. Courts voted 7-2 to approve proposed Federal Rule of Appellate Procedure 32.1, which would allow all opinions, even those designated as unpublished or non-precedential, to be cited in the U.S. Courts of Appeals.

Proposed Rule 32.1 still has a couple of hurdles to overcome before it takes effect. Yet the resounding approval the rule received from the committee tasked with superintendence over the Federal Rules of Appellate Procedure, despite the many objections to the rule advanced by lawyers and judges based within the geographical boundaries of the U.S. Court of Appeals for the Ninth Circuit, certainly speaks volumes about what good sense the rule makes.

On April 22, 2004, just nine days after the federal appellate courts took an especially significant step toward eliminating any remaining prohibitions on the citation of unpublished and non-precedential opinions, the Superior Court of Pennsylvania issued its ruling in Schaaf v. Kaufman, 2004 PA Super 129.

In Schaaf, a plaintiff who suffered a defense verdict in a medical malpractice case filed a brief in the Superior Court of Pennsylvania in which her attorney cited to an unpublished memorandum opinion that an earlier Superior Court panel had issued. The defendants moved to strike the portions of the plaintiff's appellate brief that cited to the unpublished Superior Court memorandum opinion, and the Superior Court was confronted with the plaintiff's arguments that Pennsylvania's Constitution requires all decisions be precedential and citable.

Superior Court Judge Richard B. Klein, on behalf of a unanimous three-judge panel, rejected the plaintiff's argument that Pennsylvania's Constitution prohibits appellate court decision from being designated as non-precedential or non-citable. The Superior Court's opinion proceeded to grant the defendants' motion to strike the portions of the plaintiff's appellate brief that relied on the Superior Court's earlier unpublished memorandum opinion.

My purpose here is not to reargue the issues that the Superior Court addressed in Schaaf concerning the constitutionality of that court's local rule prohibiting citation to unpublished opinions. Rather, I instead will focus on whether the Superior Court's local rule represents a sound policy of judicial administration, because if the rule is unsound then it should be abandoned whether or not it happens to be constitutionally permissible.

The least persuasive argument in favor of an appellate court's policy prohibiting citation to unpublished opinions is that, absent such a no-citation policy, every decision that a court issues will be rendered precedential. The converse is certainly true: if an appellate court announces that all of its decisions will be precedential, then all of that court's decisions should be citable. But an appellate court that allows all of its decisions to be cited does not thereby transform all of its decisions into binding precedent.

The experience of the U.S. Court of Appeals for the Third Circuit proves this point. The Third Circuit has for quite some time allowed lawyers to cite its own non-precedential rulings in briefs filed in that court, and yet I am aware of no instance where the Third Circuit, as a result of allowing its own non-precedential rulings to be cited, felt constrained to treat those rulings as precedent. The Third Circuit's experience in this regard is shared by numerous other federal and state appellate courts that allow their own non-precedential opinions to be cited back to them.

The Third Circuit's approach also demonstrates that allowing non-precedential opinions to be cited does not increase the time and effort involved in drafting such decisions. If anything, the non-precedential opinions that the Third Circuit issues and posts to its Web site are perhaps more succinct than they were when such decisions issued only to the parties and were not readily available to the public.

In support of its current policy, the Pennsylvania Superior Court in Schaaf mentions that there is no easy way to access that court's unpublished opinions. But that argument is reminiscent of the criminal defendant who, after murdering his parents, throws himself on the mercy of the court as an orphan. The reason why the Superior Court of Pennsylvania's unpublished opinions are not readily available to all is because that court fails to post those rulings to the Internet. Those rulings should be made available online to all, the sooner the better. And if the Superior Court fails to take action promptly, Pennsylvania's Legislature and Governor should enact a law requiring the court to post online all of its decisions.

An appellate court's ability to decide cases under a cloak of secrecy gives rise to the possibility that cases raising the exact same issues are being decided differently from one another based on considerations other than what justice and the law require. And who under the current system of hidden and unmentionable rulings would ever know?

Requiring the publication at the Superior Court's Web site of all opinions, whether designated precedential or not, would also allow the public to determine whether opinions that in fact decided questions of first impression were improperly being issued as non-precedential decisions. In the nearly fifteen years that I have practiced appellate litigation in Pennsylvania, I have received many lengthy non-precedential opinions of the Superior Court that seemed to have required the same effort that a precedential opinion would have entailed.

Savvy appellate practitioners understand that even those appellate courts which allow all decisions to be cited disfavor citation to opinions designated as non-precedential or unpublished. As a result, even when practicing before a court that allows all decisions to be cited, knowledgeable appellate lawyers will continue to rely almost exclusively on published, precedential decisions. The only exceptions will arise where a non-precedential ruling offers something of unique and important value. And even then, of course, the appellate court will remain free to ignore the decision or condemn it as non-binding.

Ironically, the Pennsylvania Superior Court's decision in Schaaf itself provides the basis for the most persuasive argument in favor of abandoning that court's no-citation rule. After expending ten pages of the slip opinion to address and reject the plaintiff's challenges to the constitutionality of the Superior Court's internal rule that prohibits citation to unpublished memorandum opinions, the opinion turns to address the merits of the plaintiff's arguments for reversal. In numbered paragraph 36 of the opinion, Judge Klein writes -- after having stricken the portions of the plaintiff's appellate brief that cited the earlier unpublished memorandum opinion -- that "[e]ven if that decision were binding, we would reach the same result."

It took the Superior Court panel ten pages of complicated constitutional analysis to reject the plaintiff's challenges to the Superior Court's rule that prohibits citation to unpublished memorandum decisions and only one paragraph to explain why the unpublished decision in question provided no help to the plaintiff in any event. If this does not demonstrate the absurd nature of the Superior Court's rule prohibiting citation to unpublished opinions, then it is difficult to know what would.

Federal appellate courts today are on the verge of eliminating rules that once caused their own unpublished decisions to remain hidden and unmentioned. The federal appellate courts recognize that such rules in fact impede the central goal of justice: a populace that has legitimate confidence in the work of the judiciary. State appellate courts, including the Superior Court of Pennsylvania, should likewise abolish such no-citation rules quickly and decisively.


This article is reprinted with permission from the May 10, 2004, issue of The Legal Intelligencer 2004 NLP IP Company.

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