COSA Now Allows Citation to Other Courts’ Unreported Opinions

By Steve Klepper (Twitter: @MDAppeal)

Until today, the Court of Special Appeals had a policy “not to cite for persuasive value any unreported federal or state court opinion.” In footnotes in a pair of opinions issued today (links here and here), the Court of Special Appeals announced a change in policy:

In prior reported opinions, this Court has stated that “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 Cty., 204 Md. App. 440, 445 (2012), aff’d, 431 Md. 590 (2013); see also Poe v. IESI MD Corp., 243 Md. App. 243, 256 n.2 (2019); Oliveira v. Sugarman, 226 Md. App. 524, 553 (2016), aff’d, 451 Md. 208 (2017); Margolis v. Sandy Spring Bank, 221 Md. App. 703, 718 n.3 (2015). The Court of Appeals has not adopted a similar policy. See, e.g., Gables Constr., Inc. v. Red Coats, Inc., 468 Md. 632, 663 (2020) (agreeing with an unreported decision of the United States District Court for the District of Maryland); Finci v. Am. Cas. Co. of Reading, Pa., 323 Md. 358, 375-76 (1991) (citing as support “recent unreported decisions” of federal district courts that “have rejected FDIC’s public policy contention”).

In approving this opinion for reporting, the Court of Special Appeals announces that it is no longer the Court’s policy to prohibit the citation of unreported opinions of federal courts or the courts of other states for persuasive value, provided that the jurisdiction that issued any particular opinion would permit it to be cited for that purpose. That change does not apply to unreported opinions of this Court, which remain governed by Maryland Rule 1-104.

Gables Construction, cited in the footnote, is a perfect example of the wisdom of this policy change. There, the Court of Special Appeals issued a 54-page opinion addressing several issues. Judge Wright’s decision for the Court has a red flag on Westlaw, however, because the Court of Appeals granted certiorari on a single issue and reversed, agreeing with the reasoning of an unreported federal opinion predicting Maryland law on the issue. Neither party had cited that federal opinion in the Court of Special Appeals. In the Court of Appeals, however, the petitioner was free to cite the unreported opinion, and it won reversal.

A party still may not cite unreported opinions from the Court of Special Appeals, or from other jurisdictions, such as California, that have a similar prohibition.

As reflected by the “approving this opinion for reporting” language, the entire Court of Special Appeals votes on whether to approve opinions for reporting, and thereby to make them precedent binding the Court. This new policy therefore applies to all cases before the Court of Special Appeals.