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
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.
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.