n an opinion that shadowboxes with a renowned but now vacated opinion, the 9th U.S.
Circuit Court of Appeals on Monday upheld its rule barring the citation of unpublished opinions.
A three-judge panel unanimously held that unpublished decisions cannot be cited in briefs, even as persuasive authorities. Those are the rules, Judge Alex Kozinski wrote, and now it's the law.
"The common law has long recognized that certain types of cases do not deserve to be authorities, and that one important aspect of the judicial function is separating the cases that should be precedent from those that should not," Kozinski wrote. "There was no constitutional basis for abdicating this important aspect of judicial authority."
He was joined in Hart v. Massanari, 01 C.D.O.S. 8299, by Judge Richard Tallman and U.S. District Judge Frank Zapata, sitting by designation.
The debate over the citation of unpublished decisions exploded last year after the Eighth Circuit, in an opinion authored by Judge Richard Arnold, held that his court's similar rule was unconstitutional in Anastasoff v. United States, 223 F.3d 898
Arnold reasoned that the power to set precedent is a "judicial power" that courts cannot usurp under Article III of the Constitution.
As the Eighth Circuit was set to hear the case en banc, Anastasoff was vacated as moot after the parties settled out of court.
The 9th Circuit case arose after a lawyer for Patricia Hart, Lawrence Rohlfing, cited an unpublished 9th Circuit case in his opening brief in a Social Security case that was not decided Monday.
9th Circuit rules generally bar such practices, and when served with an order to show cause why he should not be sanctioned, Rohlfing cited Anastasoff, questioning the constitutionality of the rule.
(Temporary 9th Circuit rules do allow unpublished decisions to be cited in petitions for rehearing and petitions for publication if two unpublished decisions conflict with each other.)
Kozinski, like Judge Arnold when he wrote Anastasoff, had written and spoken of the controversy before issuing his opinion. Last year, he and 9th Circuit Judge Stephen Reinhardt co-authored an article arguing that unpublished decisions are necessary to the function of the court.
According to statistics from the Administrative Office of the U.S. Courts, the 9th Circuit decides 84 percent of its cases without publishing the decisions -- the third highest of any federal appellate court.
In the year ending last September, the court published just 745 of the more than 4,700 appeals it decided. Judges say they try to write the unpublished decisions in a manner that is clear only to the parties in the case, limiting the temptation to cite them.
Kozinski's opinion is notable for its dissertation on the history of case reporting and the evolution of precedential rules. He begins in the 16th century with Lord Coke and traces it through and beyond William Blackstone, whom he identifies as a significant influence on the Constitutional Convention.
"If an 18th-century judge believed that a prior case was wrongly decided, he could say the prior judge had erred in his attempt to discern the law," Kozinski wrote. "Neither judges nor lawyers understood precedent to be binding in Anastasoff's strict sense."
Of course, much has changed since then. If Kozinski were to find the drafters of the Constitution didn't intend decisions to have precedential weight, even published rulings would have little lasting value. But Kozinski didn't go that far, saying the drafters hadn't really addressed the issue.
"For the reasons explained, the principle of strict binding authority is itself not constitutional, but rather a matter of judicial policy," Kozinski wrote.
Critics of the 9th Circuit's rule were not entirely persuaded.
"It's a fine, scholarly opinion that effectively shoots down the weakest part of Anastasoff," said Boalt Hall School of Law Professor Stephen Barnett. "But Judge Kozinski doesn't address the possible constitutional problems with a rule that bars even citing a prior court opinion."
"A litigant has the right to tell the court how an earlier litigant was treated."
Hastings College of the Law Professor Rory Little sees in unpublished decisions a judicial cop-out.
"Very often it is a Faustian bargain among the panel members. ... It's because they actually disagree about the law and won't admit it," Little said.
Little suggested that instead, the court should issue one-word decisions.