David L. Abney, Esq.
State Bar No. 009001
KNAPP & ROBERTS, P.C.
The Historic Thompson House
850 North Second Avenue
Phoenix, Arizona 85003
The proposed rule is a rickety half-measure. There is no need for that. At the start of 2007, the federal court system adopted Federal Rule of Appellate Procedure 32.1, which provides that:
FRAP 32.1. CITING JUDICIAL DISPOSITIONS
(a) Citation Permitted.
A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been;
(i) designated as “unpublished,” “not for publication,” “nonprecedential,” “not precedent,” or the like; and
(ii) issued on or after January 1, 2007.
(b) Copies Required.
If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited. (New 12/1/06)
“As promulgated, Rule 32.1 sets forth a compromise position between those who wanted to keep strict no-citation rules in place and those who wanted to make unpublished opinions freely citeable.” Charles J. Stiegler, The Precedential Effect of Unpublished Judicial Opinions under Louisiana Law, 59 Loy. L, Rev. 535, 543 (Fall 2013).
The efficient, respected federal appellate system has not crumbled because of Rule 32.1, which has been in place since the end of 2006. After adoption of Rule 32.1, the “only real difference between published and unpublished opinions is that unpublished opinions do not have precedential effect.” Brian Soucek, Copy-Paste Precedent, 12 J. App. Prac. & Process 153, 155 (Fall 2012).
In 2001, the American Bar Association’s House of Delegates urged federal appellate courts to “make their unpublished opinions available through print or electronic publications [and] publicly accessible media sites,” as well as to “permit citation to relevant unpublished opinions.” American Bar Association, Sections of Litigation, Criminal Justice, Tort and Insurance Practice and Senior Lawyers Division, Report to the House of Delegates, Resolution No. 01A115 (Aug. 1, 2001).
After years of study and debate, the federal court system finally acted on the recommendation of the American Bar Association and other authorities, and adopted Federal Rule of Appellate Procedure 32.1. David R. Cleveland, Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1, 11 J. App. Prac. & Process 19, 24(Spring 2010) (“Federal Rule of Appellate Procedure 32.1 represents the culmination of a nearly twenty-year process of removing the unpublished-opinion gag rule from the federal bar. . . . [Rule 32.1] moved through an arduous rulemaking process.”); Patrick J. Schiltz, Much Ado about Little: Explaining the Sturm Und Drang over the Citation of Unpublished Opinions, 62 Wash. & Lee L. Rev. 1429, 1429-30 (2005) (“On the day that I became Reporter, the issue of unpublished opinions was the most controversial issue on the Advisory Committee's agenda. Eight years later, the issue of unpublished opinions continues to be the most controversial issue on the Advisory Committee’s agenda. I have devoted more attention to the unpublished-opinions issue than to all of the other issues the Advisory Committee has faced—combined.”); Patrick J. Schiltz, The Citation of Unpublished Opinions in the Federal Courts of Appeals, 74 Fordham L. Rev. 23, 23 (2005) (“This seemingly modest proposal—in essence, a proposal that someone appearing before a federal court may remind the court of its own words—is extraordinarily controversial. . . . Only once before in the history of federal rulemaking has a proposal attracted more comments.”).
See also Scott E. Gant, Missing the Forest for a Tree: Unpublished Opinions and New Federal Rule of Appellate Procedure 32.1, 47 Boston College L. Rev. 705 (2006); Bryan Wright, But What Will They Do Without Unpublished Opinions?: Some Alternatives for Dealing with the Ninth Circuit's Massive Caseload Post F.R.A.P. 32.1, 7 Nev. L.J. 239, 252 (2006); David C. Vladeck & Mitu Gulati, Judicial Triage: Reflections on the Debate Over Unpublished Opinions, 62 Wash. & Lee L. Rev. 1667 (2005); Jessie Allen, Just Words? The Effects of No-Citation Rules in Federal Courts of Appeals, 29 Vt. L. Rev. 555 (2005); J. Lyn Entrikin Goering, Legal Fiction of the “Unpublished” Kind: The Surreal Paradox of No-Citation Rules and the Ethical Duty of Candor, 1 Seton Hall Cir. Rev. 27 (2005); Melissa M. Serfass & Jessie Wallace Cranford, Federal and State Court Rules Governing Publication and Citation of Opinions: An Update, 6 J. App. Prac. & Process 349 (2004); Lawrence J. Fox, Those Unpublished Opinions: An Appropriate Expedience or an Abdication of Responsibility?, 32 Hofstra L. Rev. 1215 (2004); Martha Dragich Pearson, Citation of Unpublished Opinions as Precedent, 55 Hastings L.J. 1235 (2004); Lauren Robel, The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals, 87 Mich. L. Rev. 940 (1989); William L. Reynolds & William M. Richman, An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform, 48 U. Chi. L. Rev. 573 (1981); William L. Reynolds & William M. Richman, Limited Publication in the Fourth and Sixth Circuits, 1979 Duke L.J. 807 (1979); William L. Reynolds & William M. Richman, The Non-Precedential Precedent-Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167 (1978).
Arizona should simply adopt and adapt Federal Rule of Appellate Procedure 32.1. After all, Rule 32.1 is simple, clear, and direct. It is the result of an extensive process of study, review, and debate. And, most important, it has stood the test of time.
The only issue is whether any precedential value should be accorded to federal and state judicial opinions, orders, judgments, or other written dispositions designated as “unpublished,” “not for publication,” “nonprecedential,” “not precedent,” or the like. This Court can handle that in a short sentence indicating that they are not precedent.
See Sarah E. Ricks, A Modest Proposal for Regulating Unpublished, Non-Precedential Federal Appellate Opinions while Courts and Litigants Adapt to Federal Rule of Appellate Procedure 32.1, 9 J. App. Prac. & Process 17 (Spring 2007); Amy E. Sloan, If You Can't Beat ‘Em, Join ‘Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. L. Rev. 895, 906-09 (2008) (“Nonprecedential opinions are here to stay in the federal appellate courts for the foreseeable future.”).
The proposed rule as presently formulated is an awkward and ungainly half-measure. It should be amended to conform to Federal Rule of Appellate Procedure 32.1—with minor changes to reflect that this it to be an Arizona rule—and then be adopted in that amended form. Why should Arizona buy a patched-up, rickety Model T when a road-tested, like-new 2007 Lincoln Continental is waiting on the showroom floor?