20/20 Hindsight, in the Year 2020… Do Recent Maryland Court of Appeals’ Decisions Suggest It’s Time to Permit Citations to Unreported Opinions?

By: Michael Wein

Over the past two years, there has seen pointed recognition by the Court of Appeals of Maryland, on the issue of citing to unreported Maryland opinions, which make up about 90% of the Court of Special Appeals appellate decisions.   Under Maryland Rule 1-104, unreported opinions cannot be cited in our appellate or trial courts as, precedent or as persuasive authority, but otherwise may be used under very specific conditions, such as “law of the case, res judicata, or collateral estoppel.”

The present incarnation of Md. Rule 1-104 (previously under Md. Rule 8-114) is as follows.

RULE 1-104. UNREPORTED OPINIONS

(a) Not Authority. An unreported opinion of the Court of Appeals or Court of Special Appeals is neither precedent within the rule of stare decisis nor persuasive authority.

(b) An unreported opinion of either Court may be cited in either Court for any purpose other than as precedent within the rule of stare decisis or as persuasive authority. In any other court, an unreported opinion of either Court 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. A party who cites an unreported opinion shall attach a copy of it to the pleading, brief, or paper in which it is cited.

But this Rule puts Maryland in contrast with most other states, and the Federal Rules since at least 2007, which allow citations to unreported opinions as “persuasive” authority, when involving similar or identical legal and factual issues. Further, this majority of other jurisdictions have reasonably concluded (mostly following the Federal Judicial Conference’s conclusion creating Federal Rule of Appellate Procedure (FRAP) 32.1, chaired by now-Justice Samuel Alito) that to permit citation to unreported opinions for their persuasive value is both workable and in the public interest.   (And a few jurisdictions, such as Arkansas and Delaware, consider unreported opinions to be more fully precedential).

At one point about 5 years ago,[i]  as discussed previously on this Blog here,  the Maryland Rules Committee appeared  on the verge to go well-past this “Majority rule,“ to preclude all other jurisdictions’ case law from being cited in Maryland, if they happened to be labeled as unreported. [ii] This would be regardless of whether the subject opinion’s jurisdiction conflicted with Maryland on citing “persuasive authority.”   The Blog piece discussed the contemplated Rule changes would create chaotic pitfalls, that were not respectful of consistency and transparency ideals. A later Post by this Blog, noted how the proposed Rule change had been swiftly abandoned.

Hindsight in 2020 justifies another update.  In 2015, when Maryland’s unreported opinions were first put online, this “experiment” for the first time provided free access to unreported opinions.  This newfound access allowed for Westlaw and Lexis to add new unreported opinions to their searchable database.   Most, if not all appellate judges, still issue well-considered appellate decisions, regardless of it being an unreported or reported. And providing free access online to all decisions, unreported and reported, doesn’t overtly change the distinction under Md. Rule 8-605.1, when the majority of the Court of Special Appeals determine whether an opinion of that court is of sufficient public interest for publication as reported and, thereby, precedent.  This practice will continue, and there is still the general presumption, that appellate judges can and do write and participate in logically and legally sound appellate opinions.

The negatives against allowing unreported opinions to serve as persuasive authority are derived more out of fear and apprehension, that litigants will “misuse” them, which is why, since going online in 2015, each and every unreported opinion at the Court of Special Appeals begins on page 1 with the following disclaimer:

“*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.”

The question, then, is where to go from here?  The answer requires two examinations.  First, to understand what are the respective roles and audiences of the Court of Appeals and the Court of Special Appeals, when it comes to “Unreported” opinions and Md. Rule 1-104.  Second, what options are there, to “evolve” the present iteration of the Rule, to better deal with the current “transparency” and “consistency” ideals, that have increasingly this past decade been adopted in most appellate Courts nationwide, while striking a balance, to deal with the practical and legal insecurities of the past, concerned that “unreported” opinions should remain minimally available and citable.

The first answer is a bit more interesting than you may think.  Unreported opinions are almost entirely done in the intermediate appellate court; the last unreported opinion in the Maryland Court of Appeals, appears to trace back to a December 2003, for a duplicative Attorney Grievance Commission (AGC) case involving the disbarred attorney Adrien Ifill, who had multiple Complaints and a reciprocal Bar complaint in D.C.  In the 16 years since, Maryland’s highest court has yet to seek to designate a decision as an “unpublished,” and of non-precedential status. This may be partially explained, as the Court can “DIG” (Dismiss as Improvidently Granted) any case and also limits the scope of its certiorari-based review to issues that are “desirable and in the public interest.”[iii]  The Court of Appeals’ cases and jurisdiction, therefore, almost by definition (with the possible exception of the mandatory jurisdiction cases, such as the AGC cases), should all be “published.”

 

RECENT MARYLAND COURT OF APPEALS OPINIONS

Yet, the Court of Appeals is the inevitable and consequential recipient of the limitation in Md. Rule 1-104 (b), which again prohibits citation to unreported Maryland appellate decisions as persuasive authority, regardless of how persuasive they may be.  It is from this vantage point that the Court of Appeals may be expressing disagreement with the current pace of the Maryland Rule’s evolution, and its citation restriction on the Court of Appeals,  despite that they themselves almost never citing their cases as “unreported”.   This also goes in hand with the Maryland Judiciary’s announcement this Term in favor of transparency, (after clicking the check box on the disclaimer), originally slated in September 2019,  that “Coming Soon: Appellate (Court of Appeals and Court of Special Appeals) cases will be available in Case Search.”   It is also important to be aware, that the existence of the current Rule may be more one of comity towards the Court of Special Appeals.  However, when it comes down to it, only the Court of Appeals decides through its Rule making authority, after initial presentation by the Rules Committee, what actual Rules exist for both appellate courts.

For example, Senior Judge Adkins in MAS Assocs., LLC v. Korotki, 465 Md. 457, 479 (Aug. 8,2019), reconsideration denied and granted in part (Sept. 30, 2019), appeared to give lip service to Maryland’s Rule, while noting the fallacy that unreported opinions from other jurisdictions weren’t of persuasive worth (or in that case, precedential worth):

Pursuant to Maryland Rule 1-104(a), we do not rely on unreported opinions from Maryland courts as “precedent within the rule of stare decisis [or] persuasive authority.” But when appraising the persuasive value of unreported opinions from other jurisdictions, we consider the value of these opinions in their local courts. In Delaware, unreported cases have precedential value and are citable without limitation. See Del. Sup. Ct. Rule 14(b)(vi)(B)(2). We consider this case as persuasive authority, bolstered by that fact that this Court frequently looks to Delaware cases in search of widely-regarded corporate legal jurisprudence. See Shenker v. Laureate Educ., Inc., 411 Md. 317, 338 n.14, 983 A.2d 408 (2009) (“This Court has noted the ‘respect properly accorded Delaware decisions on corporate law’ ordinarily in our jurisprudence.”) (citation omitted). [Emphasis Added]

Just a week later, Judge Getty in D.L. v. Sheppard Pratt Health Sys., Inc., 465 Md. 339, 359–60 (Aug. 13, 2019), wrote that the facts of the case were “strikingly similar” to an unreported opinion, though the Court did not rely upon any of the legal determinations made in the unreported case.  This is unsurprising, because unreported opinions are frequently cited in Certiorari petitions (particularly in criminal cases when sought by the Public Defender or Attorney General’s office) to help with the more nebulous determination of “certworthiness” on the importance and frequency of the legal issues involved.  Thus, in practice, the prohibition on citation of unreported opinions has apparently been lowered, partly to allow citation to “strikingly similar facts” even while retaining Rule 1-104 in citing the legal reasoning undergirding the legal analysis applied by the Court of Special Appeals on those facts.

In 2018, Senior Judge Harrell discussed the issue in Dabbs v. Anne Arundel Cty., 458 Md. 331, 342  (Apr. 10, 2018). Similar to Sheppard Pratt, supra, the Court noted their willingness to cite unreported opinions that are “nearly identical” to those being considered on Certiorari, and that it would consider the legal rationales of some of the nearly identical unreported case as “inextriabl[y] intertwin[ed] with the Dabbs Class’ contentions and factual background.”  Interestingly, the Court noted in Dabbs that it was citing the unreported opinion facts and a part of the rationale, as not doing so, would bring up issues of collateral estoppel, of which part of that doctrine includes “reliance on judicial action by minimizing the possibilities of inconsistent decisions.” Id at 342.

This opinion includes references to unreported opinions in the Halle litigation, in which those litigants invoked many claims that are nearly identical to those posed in the Dabbs litigation, although different sets of class property owners and developers and a different stretch of fiscal years are involved in each line of cases. We may cite here or, in one instance, refer to persuasive reasoning, as appropriate, in certain of the Halle rulings because of their relevance and inextricable intertwinement with the Dabbs Class’ contentions and factual background. We do so under “the doctrine of … collateral estoppel.” Md. Rule 1–104(b); Corby v. McCarthy, 154 Md. App. 446, 481, 840 A.2d 188, 208 (2003). Collateral estoppel provides that, “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Cosby v. Dep’t of Human Res., 425 Md. 629, 639, 42 A.3d 596 (2012); see also Rourke v. Amchem Products, Inc., 384 Md. 329, 359, 863 A.2d 926, 944 (2004) (quoting re Murray Int’l Freight Corp. v. Graham, 315 Md. 543, 547, 555 A.2d 502, 503 (1989) (“The functions of this doctrine, and the allied doctrine of res judicata, are to avoid the expense and vexation of multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions.”).

[…]

In point of fact, the only question or argument in this case where we find the reasoning or conclusions of an unreported opinion in Halle persuasive is in our analysis of the argument that Bill No. 27–07 (see infra II.a.) should not be given its intended retrospective effect because the Dabbs Class members’ rights to refunds had vested before the effective date of the legislation. Even there, this Court’s 2009 reported opinion in Anne Arundel County v. Halle Development, 408 Md. 539, 559 n.7, 560, 971 A.2d 214 n.7 (2009), addressed virtually the same question, although Bill No. 27–07, which was law at that time, was not mentioned specifically by the parties in the briefing and argument or by the Court in its opinion.” [Emphasis Added]

COURT OF SPECIAL APPEALS OPINIONS, SPECIFICALLY DISCUSSING RULE 1-104, AND TRACING TO KENDALL V. HOWARD CO. 204 MD. APP. 440 (2012).

It is worth mentioning, that while every unreported decision in the Court of Special Appeals refers to Maryland Rule 1-104 on the first page, there appears to be an erroneous impression that the Rule stands for more than what it says and extends its prohibition to unreported opinions of other jurisdictions outside of the State of Maryland.  This confusion was referenced in 2018 in an unreported opinion by that court in Keaton v. Maryland State Ret. & Pension Sys., No. 26, SEPT. TERM, 2017, 2018 WL 1110449, at *8 (Md. Ct. Spec. App. Feb. 28, 2018):

Mr. Keaton contends that expert opinion testimony is not required to prove medical causation in administrative proceedings. As support for that proposition, he points to an unreported opinion of this Court. An unreported opinion of this Court “is neither precedent within the rule of stare decisis nor persuasive authority” (Md. Rule 1–104(a) ), and may not be cited for either of those purposes. See Md. Rule 1–104(b). Furthermore, “ ‘it is the policy of this Court in its opinions not to cite for persuasive value any unreported federal or state court opinion.’ ” Margolis v. Sandy Spring Bank, 221 Md. App. 703, 718 n.10 (2015) (quoting Kendall v. Howard County, 204 Md. App. 440, 445 n.1 (2012), aff’d, 431 Md. 590 (2013).  [Emphasis Added]

However, the Court of Special Appeals’ “policy” as noted supra, is most definitely, not the “policy” at least since 2018 of the Court of Appeals of Maryland.  Further, it’s questionable, if the provenance of this quote, is fully accurate, or has been fully appreciated as dicta.  The case of Margolis v. Sandy Spring Bank, 221 Md. App. 703, 718 (2015), cited in Keaton, is accurately quoted:

Both parties cite a number of unreported federal decisions concerning the propriety of batch-processing under the law of various states. “However, it is the policy of this Court in its opinions not to cite for persuasive value any unreported federal or state court opinion. Kendall v. Howard County, 204 Md.App. 440, 445 n. 1, 41 A.3d 727 (2012), aff’d, 431 Md. 590, 66 A.3d 684 (2013).

Yet, it’s necessary to review Kendall v. Howard County, 204 Md. App. 440 (2012), aff’d, 431 Md. 590 (2013),  to get a true sense of what was meant in 2012.  Which gets us back, unironically, to the intermediate appellate court‘s unhappiness with the 2007 FRAP Revision of 32.1, allowing citation to unreported and unpublished opinions for their “persuasive” value.

Under Rule 32.1(a) of the Federal Rules of Appellate Procedure, after January 1, 2007, a United States Court of Appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value or any other reason. However, it is the policy of this Court in its opinions not to cite for persuasive value any unreported federal or state court opinion. In this case, our policy is not implicated because we have cited the two unreported federal case opinions only to impart the history of this case.” [Emphasis Added]  Kendall, 204 Md. App. at 445.

Kendall was the first Court of Special Appeals decision that appears to reference this “policy,“ which was dicta there.  Further, FRAP 32.1 or even present-day Maryland Rule 1-104, were not directly implicated, as the actual language used in those Rules applied to litigants, and Kendall was not a prohibition on litigants citing unreported opinions from various other States and the Federal Courts.  Instead, though not written, it appears to have limited impact, but gave direction to Court of Special Appeals judges, requesting them to not to cite.  Thus, the “policy” appears to be a self-imposed limitation, that an individual judge at the Court of Special Appeals could do so, regardless, if an individual judge, already may have a preference to not cite unreported opinions themselves, even though they are appropriately citable in most States and the Federal Courts.

 

THE THREE OPTIONS “TO CITE OR NOT TO CITE” UNREPORTED OPINIONS FOR PERSUASIVE VALUE.

There are three real options for where the Maryland Appellate courts should go from here.  There are technically four, but the first option is a non-starter: theoretically, Maryland could make all opinions – unreported or reported – precedent like some states (i.e. Arkansas and Delaware) have done. That seems incredibly unlikely to be adopted any time soon, leaving three realistic for consideration right now, to transition Maryland to the standard practice of most jurisdictions.

A lot of this debate can be best understood in the context of the Fourth Circuit Court of Appeals, which was one of the most resistant circuits to permitting and adopting any rule in favor of citations to unreported opinions. That is, until it was forced to, in the 2007 comprehensive Report proposing and adopting FRAP 32.1, which was chaired by now-Justice Samuel Alito, that also had as a member of the Advisory Committee, now-Chief Justice John Roberts. The Report stated:

In sum, whether or not no-citation rules were ever justifiable as a policy matter, they are no longer justifiable today. To the contrary, they tend to undermine public confidence in the judicial system by leading some litigants — who have difficulty comprehending why they cannot tell a court that it has addressed the same issue in the past — to suspect that unpublished opinions are being used for improper purposes. They require attorneys to pick through the inconsistent formal no-citation rules and informal practices of the circuits in which they appear and risk being sanctioned or accused of unethical conduct if they make a mistake. And they forbid attorneys from bringing to the court’s attention information that might help their client’s cause.  Because no-citation rules harm the administration of justice, Rule 32.1 abolishes such rules and requires courts to permit unpublished opinions to be cited.”  (Pg. 49)

OPTION ONE—DO NOTHING.

Obviously, this would be the simplest option. But it would do nothing to improve consistency and transparency.  The past five (5) years support that providing the barest transparency, by posting unreported opinions online, has not led to significant negative consequences of the Court, while providing significant improvements in consistency, fairness and openness.  Now, litigants and attorneys can review and locate similar cases can at the very least, be reviewed, and the arguments understood by the general public.  The proliferation of MDEC in Maryland, as well as the recent pronouncement by the Judiciary, that appellate docket entries are to be provided online, supports that doing nothing would have long term negative consequences, while making Maryland continue as an ever smaller, minority of states against the non-citation Rule.

OPTION TWO—ADOPT A SIMILAR RULE TO THE PRESENT FRAP 32.1, PERMITTING CITATION OF UNREPORTED OPINIONS FOR THEIR “PERSUASIVE” AND NOT PRECEDENTIAL VALUE.

The uniform Rule established and taking effect in 2007 for all Federal Courts of Appeal, is available and online at the Fourth Circuit’s Website.

Rule 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,” “non-precedential,” “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.

This would, with one caveat perhaps involving the actual effective date, work well in Maryland.   The prohibition on “persuasive” value citations, makes little sense, from the perspective of whether parties, attorneys, and yes, even judges, should be able to cite “persuasive” cases, for their persuasive value.  It’s unnecessarily Draconian in this age of the internet, where unreported opinions are available online as well as Lexis and Westlaw.   If the unreported case is a stretch to cite, or there are reported cases on point, then the latter would naturally take precedence and be precedential.  It’s particularly unnatural and inefficient to have this type of free speech-type restriction, when the cases may be (1) remarkably similar factually, (2) well-reasoned legally, (3) bring out collateral estoppel concerns to create inconsistent appellate decisions, and (4) is ultimately efficient, as “persuasiveness” is not the same as precedential (and thus required to be followed), but allows for flexibility to adopt, well-reasoned, argued, and litigated claims, that are nearly identical, to at the very least, be brought to the appellate court’s attention.  To continually preclude citation to all unreported opinions, out of an outmoded “fear” that some litigants or non-regular appellate attorneys, may do citations that are not of sufficient quality even though easy to discover the near identical prior citation, is not reasonable, and “tantamount to killing an ant with a pile driver.”  Terry v. State, 332 Md. 329, 339 (1993).

A question does exist, however, as to what would be the effective date.  The Judiciary began posting unreported cases on May 1, 2015 and as a result, Lexis and Westlaw began making them available to subscribers as part of searchable databases. But most of the unreported cases preceding May 1, 2015 remain known and locatable only for the parties involved, or by digging through the archives at law libraries where they are maintained, to locate a microfiched or paper copy.  Thus, two reasonable options would be to permit citation to an unreported opinion dated May 1, 2015 onward.  Otherwise, the Court of Appeals and the Rules Committee should pick a prospective definite date, such as January 1, 2021, to allow for citation in all Maryland cases, for persuasive value.

 

OPTION THREE—ADOPT A SIMILAR RULE TO THE PRESENT FOURTH CIRCUIT’S LOCAL RULE ON FRAP 32.1, PERMITTING CITATION OF UNREPORTED OPINIONS FOR THEIR “PERSUASIVE” AND NOT PRECEDENTIAL VALUE, BUT SPECIFYING IT TO BE “DISFAVORED” UNLESS “NO PUBLISHED OPINION WOULD SERVE AS WELL.”

As noted supra, the U.S. Court of Appeals for the Fourth Circuit, which includes Maryland, was very much against FRAP 32.1, both before and after it was adopted in the United States Supreme Court.   In particular, with some comments being directed to the Advisory Committee by appellate judges, there was a concern, that decisions issued before the Rule took effect on January 1, 2007, would be citable.   While the overall Rule now eliminated the Fourth Circuit’s practice prohibiting these citations, in part to create nationwide uniformity, consistency, and transparency, the following was adopted as the Fourth Circuit’s local Rule, to address the extent that earlier opinions prior to 2007 could be cited:

Local Rule 32.1. Citation of Unpublished Dispositions. Citation of this Court’s unpublished dispositions issued prior to January 1, 2007, in briefs and oral arguments in this Court and in the district courts within this Circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case. If a party believes, nevertheless, that an unpublished disposition of this Court issued prior to January 1, 2007, has precedential value in relation to a material issue in a case and that there is no published opinion that would serve as well, such disposition may be cited if the requirements of FRAP 32.1(b) are met.

For Maryland, a limited partial step could be that when enacted, (as of, say, January 1, 2021), the rule contain additional language similar to the Fourth Circuit’s Local Rule, (1) noting a date upon which unreported opinions are at least citable for all “persuasive” rationales, and (2) expressing the Court of Special Appeals’ preference towards reported appellate decisions, something that goes without saying for most experienced appellate attorneys, but would be generally helpful to litigants and attorneys who do not practice regularly in the Maryland Appellate Courts.

However, to be clear, in my opinion, this distinction is not the best option today, as it is unnecessary, and Option Two should be adopted. There are few if any negatives to citing decisions for “persuasive value” and there still could be nearly identically rendered decisions, separated by years, that are persuasive to today’s appellate judges.[iv]  Furthermore, a full step would be in lock-step with the majority of States and the Federal Courts.  It is respectfully overdue to be enacted in Maryland, and should be recommended by the Maryland Rules Committee and adopted by the Maryland Court of Appeals.

 

Michael Wein is an attorney in Greenbelt whose practice concentrates on appellate, civil, and criminal litigation. He can be reached at weinlaw@hotmail.com

 

 

[i]  As noted in the Blog Post in 2015, this was at a time when the Maryland Daily Record had first started putting unpublished opinions on their web site, forcing the issue that the Maryland Courts should similarly make them available to the public online as well.  The advantage of the Courts finally doing it, was that it allowed the subscription services of Lexis and Westlaw, to begin collecting, collating, and word indexing unreported opinions, so at the very least the subscribers to these services, primarily attorneys, would be able to know that a similar case was argued, and the arguments made there, to incorporate well-reasoned arguments and decisions.  Thus, while in practice these decisions if reviewed are usable for “persuasive” purposes, and the arguments made by prior parties are potentially “persuasive” in the Court of Special Appeals, they remain oddly at present under Md. Rule 1-104, “non-citable,” if one wishes to at least point out, that the same argument was made earlier, even if successfully argued in a separate earlier appeal.

[ii] Though it was not publicly disclosed what led to this Proposed rule, it may have involved, as discussed infra, a misreading or misunderstanding of the Court of Special Appeals’ brief reference to an internal “policy” decision in Kendall v. Howard County, 204 Md. App. 440, 445 n. 1 (2012).                                            .

[iii] Md. Code, Cts. & Jud. Proc. § 12-203.

[iv] It is noted supra, there may need to be a date chosen, in Maryland for permitting citation, as the Federal Courts had previously had many of their “unpublished” opinions, with apparent variety in the circuits, available online or in legal databases for many years, unlike Maryland, which all began May 1, 2015.

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