Rules Committee to Recommend Putting Maryland Unreported Opinions Online, But Expanding Restrictions on Use of Other Unreported Decisions
By Michael Wein
As detailed in a previous post of mine from February, the underpinnings of unreported opinions differ substantially in Maryland from those in other state and federal courts. I argued that having about 90 percent of appellate opinions from the Court of Special Appeals not available online seemed at odds with the Judiciary’s stated goal of being accessible to the public. To help remedy this, the Maryland Daily Record has begun publishing unreported opinions for subscribers, making it easier for attorneys to understand the appellate courts.
I thus predicted that the current iteration of Md. Rule 1-104 – which restricts citation and reliance upon unreported opinions – would “not last long into the e-filing era, so it is best to begin addressing these concerns now.” Now, the Maryland Rules Committee will, at its April 10, 2015, meeting and in anticipation of its 187th Report, recommend (as indicated at pages 46-48 of the agenda) that all Maryland unreported opinions be available online by the end of the year:
Unreported opinions of the Court of Special Appeals and Court of Appeals filed on after _________, 2015, will be posted on the Judiciary website. Unreported opinions traditionally have been publicly available at the Clerks’ offices, and their designation as unreported did not change by publication. Similarly, an opinion that has been designated as unreported does not become reported by posting on the website.
That’s the good news. It’s well overdue, and probably at least in part a reaction to the Daily Record’s making these opinions publicly available. Now they will no longer be generally consigned only to those who know they exist, travel to Annapolis, and pay to get copies.
However, in exchange for greater transparency about and accessibility to unreported opinions, the Rules Committee has also chosen to further clamp down on their use for citation purposes, maintaining Maryland as an outlier from Federal Rule 32.1 and most other states. Outside of very limited delineated exceptions, it is still planned by the Rules Committee, under Md. Rule 1-104, that unreported opinions will be “neither precedent within the rule of stare decisis nor persuasive authority.” Further, as an additional rule change, any attempt to cite an unreported opinion will be met with the possible sanction of “striking” the “pleading, brief, or paper” with the offending citation.
Citations to unreported opinions from other jurisdictions are allowed under the present Rule 1-104, but the proposed change would ban them completely for “persuasive” or even precedential purposes. That would make Maryland’s courts even less consistent with others. For example, per the federal and local rules, unreported Fourth Circuit opinions issued after January 1, 2007, are permitted to be cited as authority when there are not more applicable reported opinions. And some states, such as Arkansas and its citation Rule 5-2, make unpublished decisions citable as fully binding precedential authority. So a case can be citable as full precedential or persuasive authority in another state or federal court, yet, when it hits the Maryland border, it suddenly ceases to exist?
The wording of the proposed Rule change to 1-104, does this by changing the definition of “unreported.” It would read:
Rule 1-104. UNREPORTED OPINIONS
(a) Definition
In this Rule, “unreported opinion” means:
(1) an opinion of the Court of Appeals or Court of Special Appeals that is designated by the Court as unreported and the text of which is not included in the Maryland Reports or the Maryland Appellate Reports; and
(2) an opinion of a federal court or of an appellate court of another state, district, or territory of the United States that is designated or regarded as unreported, not for publication, or non-precedential by the court that issued it.
(b) Not Authority
An unreported opinion is neither precedent within the rule of stare decisis nor persuasive authority.
(c) Citation
An unreported opinion may be cited only:
(1) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel,
(2) in a criminal action or related proceeding involving the same defendant; or
(3) in a disciplinary action involving the same respondent.
The new proposed rule not only seems to arbitrarily limit use of unreported appellate decisions, but also trial court decisions. Thus, no longer can the Court of Appeals of Maryland, for example, choose to cite unreported federal district court decisions, no matter how persuasive they are and even though they are easily accessible on Westlaw or Lexis. See, e.g., Dize v. Ass’n of Md. Pilots, 435 Md. 150, 169 (2013) (citing Saienni v. Capital Marine Supply, Inc., 2005 WL 940558 at *8 (E.D. La. 2005); Peterson v. Reinauer Transp. Co., 1997 WL 706220 at *4 (S.D.N.Y. 1997)). Before becoming an Article III judge in Maryland, Judge Grimm made a number of decisions on electronic evidence as a magistrate judge. However, under the proposed new Rule, I could not, in state court, cite his seminal 101 page opinion on electronically stored evidence, Lorraine v. Markel Am. Ins. Co., 2007 U.S. Dist. Lexis 33020 (D. Md. May 4, 2007), without potentially having the filing stricken for doing so.
A practical consequence of the rule could be to encourage “forum shopping” in Maryland to avoid the application or effect of an unfavorable unreported opinion that would be considered in another jurisdiction. At the very least, the proposed rule would create confusion as to reconciling Maryland’s citation regime with the rules of other jurisdictions that are more tolerant of unreported opinions. As there’s little commonality and much dissonance in various courts’ “selective publication” of opinions (see e.g. Jilian R. Jones, Bound by Precedent: Arkansas Practitioners Win the Debate Over Unpublished Decisions, 63 Ark. L. Rev. 619 (2010)), this part of the proposed Rule should be rejected by the Rules Committee or Court of Appeals of Maryland.
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Maryland Appellate Blog 
Thanks for catching this important issue at an early point, Mike. I today emailed a letter to Judges Wilner and Zarnoch addressing my particular concerns. I’ve pasted the relevant text below:
I do not have a strong opinion on whether the Committee should expand the definition of “unreported opinions” in the proposed Rule 1-104(a). Nevertheless, I see significant problems in the proposal to shift from an enumeration of prohibited purposes (“as precedent within the rule of stare decisis or as persuasive authority”) to a strict affirmative enumeration of permissible purposes.
Off the top of my head, I can think of three important purposes that would be prohibited under the proposed Rule 1-104(c).
First, it is important to permit parties to cite unreported opinions in a petition for certiorari to the Court of Appeals. Unreported opinions – whether from the Court of Special Appeals, the circuit courts, or federal appellate or trial courts applying Maryland law – are useful in demonstrating that certiorari is desirable and in the public interest. The decisions may be in conflict, or they may express that Maryland law is unsettled. Such unreported decisions can aid the Court of Appeals in determining when certiorari is necessary to clarify Maryland law.
Second, citation to unreported opinions can be important in cases involving sanctions. If a court, in an unreported opinion, has sanctioned an opposing attorney or party for similar conduct, or if it has noted misrepresentations without imposing sanctions, citation is relevant to the appropriateness of imposing a sanction or to the severity of the sanction.
Third, citation to unreported opinions can be useful in establishing facts of the sort normally appropriate for judicial notice. For instance, if a plaintiff makes a public policy argument in favor of imposing liability on a defendant for the conduct of a third party, the court often will have questions regarding the defendant’s ability to seek indemnity from the third party. If an unreported opinion states that the third party is bankrupt or in prison, citation is helpful in evaluating public policy arguments.
I am certain that I could identify more situations if I polled my colleagues. I wish only to stress the difficulty in enumerating the situations in which citation to an unreported opinion is necessary or appropriate for effective advocacy on behalf of a client. I believe the current prohibition on citation “as precedent within the rule of stare decisis or as persuasive authority” is sufficient to address the Committee’s concerns.
See the dissent from denial of cert in Plumley v Austin written by Justice Thomas re 4Th circuit’s unreported opinion.
Please excuse any typos, as this email has been sent from my iPhone.
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One of our loyal readers pointed out that Lorraine v. Markel Am. Ins. Co., 2007 U.S. Dist. Lexis 33020 (D. Md. May 4, 2007), does have a citation: 241 F.R.D. 534. I did some digging and, in the “learn something new every day” department, my understanding is that Federal Rules Decisions is a West publication, akin to the Federal Appendix, that collects decisions not designated for publication in the Federal Supplement. It’s not available on Lexis or Google Scholar.
I think the “FRD” situation reflects broader confusion regarding what constitutes “unreported” or “non-precedential” with respect to a US District Court opinion. As Mike points out, the District of Maryland does not consider its “F. Supp.” decisions as binding precedents. But I’ve practiced on a pro hac vice basis in other courts, such as the District of Colorado, that in fact consider its published decisions as binding. The significance (de facto or de jure) of the decision whether to publish a decision varies widely by jurisdiction, potentially leading to collateral battles over whether Rule 1-104 permits citation.
As I read the proposed rule, it would forbid citation to any opinion ever written in the federal District of Maryland. I dearly hope that is not the drafters’ intent or where this ends up. Specifically, an “opinion of a federal court . . . that is designated or regarded as . . . non-precedential” would cover every D. Md. opinion because they are all “non-precedential.” It does not matter whether the judge has designated the opinion for publication in the F. Supp. reporters.
The issue reminds me of Judge Grimm’s quip from a lecture several years ago when he referred to F. Supp. as “the Vanity Fair of the federal judiciary.”
Rule 1-104. UNREPORTED OPINIONS
(a) Definition
In this Rule, “unreported opinion” means:
(1) an opinion of the Court of Appeals or Court of Special Appeals that is designated by the Court as unreported and the text of which is not included in the Maryland Reports or the Maryland Appellate Reports; and
(2) an opinion of a federal court or of an appellate court of another state, district, or territory of the United States that is designated or regarded as unreported, not for publication, or non-precedential by the court that issued it.
The fact that D. Md. decisions lack precedential authority, even if published, is not just a preference of our local federal district court. I don’t know how any federal district court can deem its published opinions to be precedential. “‘A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.’” Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011) (citation omitted).
Interesting comments. I’ll note that some of my earlier drafts, had additional specifics, but it was thought in light of the time-sensitivity of the Post, better to keep it succinct to just a few examples, and do a possible follow up later depending on what’s submitted to the Court of Appeals. There’s really no question that, among other problems, this proposed Rule would prohibit the citation to every Federal District Court opinion at any time. It appears that the Rules committee attempted to “graft” some of the language from the enacted Fed. R. App. Proc. 32.1 on unpublished opinions, and then in addition to broadening the citation exclusions to include all trial, appeal, state and federal citations (as opposed to just Fed. appellate courts, which were the subject of 32.1), add the the ambiguous phrase “regarded as unreported” to the litany of prohibited citation formats.
But this misapprehends the purpose(s) behind and what FRAP 32.1 did, based on the thoroughly examined recommendations of the Commission chaired by now-Supreme Court Justice Alito with now-Chief Justice Roberts as another member. It was decided to “harmonize” the somewhat different Federal Circuits, and the language used was to the maximum extent, no matter what the term used, intended to prevent Circuit Courts from EXCLUDING litigants’ citation to unpublished opinions. That’s why every conceivable description was used.
Here, it’s the opposite purpose and effect, which is not directed towards the appellate authority, but to prevent individual litigants (mostly attorneys), from INCLUDING citation to unpublished opinions, wherever, and whenever. Which creates enormous overbreadth problems in trying to apply it to at least 55 mostly incongruent and never harmonized State, Federal, and Territorial jurisdictions in the U.S. and definitions it portends to prohibit as citations in Maryland.
Right now, there’s no rule restricting citation to unreported opinions from other jurisdictions, and I’ve rarely heard much complaints when it does happen. But from a legal writing perspective, it’s really quite rare that I’d choose to cite a non-Maryland unreported opinion for persuasive or precedential authority, unless (1) the legal issue or similar factual circumstances aren’t clearly found in a Maryland case, or (2) I’m citing the cases for more “survey” purposes, which tends to happen more at the Court of Appeals level for Certiorari petitions (particularly after a grant on a Question of First Impression), than the the Maryland Court of Special Appeals level.
So I’m unsure the necessity, rationales, or what is being accomplished with this part of the proposed Rule change, on what has not really been a problem in practice, except, potentially, highlighting the widening gulf between Maryland’s existing unreported opinion Rule against all persuasive citations, with that of the Federal and most State Courts. (Also, in my opinion, Maryland never has, nor likely will, have jurisdictional authority to prevent other jurisdictions,within the confines of their Courts, should they so choose, to cite persuasive Maryland unreported opinion authorities. See e.g. Lynn v. Monarch Recovery Mgmt., Inc., 953 F. Supp. 2d 612, 621 (D. Md. 2013)(J. Quarles)(“[w]hether a plaintiff can recover double damages under the TCPA and MDTCPA has been addressed—though not decided—in at least two opinions by the Maryland Court of Special Appeals. See Worsham v. Integrated Credit Solutions, Inc., No. 0815 (Md.Ct.Spec.App. Filed Apr. 10, 2007) (unpublished), ECF No. 57–2; Powers v. Dupree, No. 2604 (Md.Ct.Spec.App. Filed Jan. 22, 2009) (unpublished), ECF No. 57–3…”))