Metropolitan News-Enterprise


Tuesday, September 25, 2001


Page 1


Ninth Circuit Panel Upholds Ban on Citing Unpublished Opinions


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Ninth U.S. Circuit Court of Appeals rule barring citations to unpublished opinions is constitutional, a panel of that court ruled yesterday.

In a 40-page opinion that included an extensive discussion of U.S. and English legal history, Judge Alex Kozinski rejected the argument of a Santa Fe Springs lawyer that the rule unlawfully abdicates the “judicial power” granted to courts by Art. III of the Constitution.

The attorney, Lawrence D. Rohlfing, made that argument after the court issued an order to show cause why he should not be sanctioned for citing an unpublished 1996 disposition in his opening brief on behalf of Patricia Hart. Hart is appealing a denial of social security benefits.

Opinion Vacated

Rohlfing based his argument on Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000). The three-judge panel in that case ruled that the Constitution requires that all judicial opinions be published and citable as precedent, but the full Eighth Circuit later found the issue moot and vacated the panel opinion.

Kozinski said the Eighth Circuit panel was wrong, but concluded that Rohlfing had relied on its opinion in good faith and should not be sanctioned.

Kozinski reasoned that while all judicial opinions were citable under the practice in effect when the Constitution was adopted, this does not mean the framers intended to enshrine a requirement that every opinion be given the effect of precedent in the future.

The judge wrote:

“One danger of giving constitutional status to practices that existed at common law, but have changed over time, is that it tends to freeze certain aspects of the law into place, even as other aspects change significantly….This is a particularly dangerous practice when the constitutional rule in question is not explicitly written into the Constitution, but rather is discovered for the first time in a vague, two-centuries-old provision. The risk that this will allow judges to pick and choose those ancient practices they find salutary as a matter of policy, and give them constitutional status, is manifest.”

Early Days

The jurist noted that many jurisdictions didn’t require written opinions disposing of appeals prior to the 19th Century, and that other practices of the courts in the country’s early days—allowing juries to try legal, as well as factual, issues; having every judge of an appellate court write a separate opinion; and allowing trial judges to sit on tribunals hearing appeals from their own decisions have been abandoned.

He also pointed out that the Ninth Circuit’s rule is consistent with the modern practice, since all federal circuits and all but four states have rules limiting the precedential effect of decisions not appearing in the official reports.

“While we agree with Anastasoff that the principle of precedent was well established in the common law courts by the time Article III of the Constitution was written, we do not agree that it was known and applied in the strict sense in which we apply binding authority today,” the judge wrote.

Sanctions Possible

Kozinski wrote for the same panel—which included Judge Richard Tallman and visiting District Judge Frank Zapata of Arizona—this past spring when it warned in Sorchini v. City of Covina, 99-56257, filed May 4, 2001, that lawyers who cite unpublished dispositions as precedent face sanctions under the Ninth Circuit’s Rule 36-3.

A Pasadena lawyer had argued unsuccessfully that the rule’s exception permitting citation  of unpublished opinions “for factual purposes, such as to show double jeopardy,  sanctionable conduct, notice, entitlement to attorneys’ fees, or the existence of a related case,” might be used to bring to the judges’ attention a legal principle applicable to the case being briefed.

Kozinski said the exception “does not permit the citation of an unpublished disposition for the purpose of providing ‘notice’ to the court of the existence or absence of legal precedent.”

Yesterday’s case is Hart v. Massanari, 99-56472.


Copyright 2001, Metropolitan News Company