Maryland Supreme Court to Consider New Rules Allowing For First Time, Full Citation For Persuasive Value to Most Unreported Opinions

By Michael Wein

For the first time, the Maryland Rules Committee has recommended Unreported Opinions in Maryland be cited for “persuasive value” under Maryland Rule 1-104.   Part of the given Rule change’s rationale, was the Maryland Supreme Court does not consider itself as limited in citations, as at Maryland’s intermediate Appellate Court of Maryland.   See Blog post dated 2/19/2020 discussing apparent contrary use of unreported opinions by Maryland Supreme Court. There remains some uncertainty as to the final version, as described below.   This comes after a September 2022 Rules committee meeting, became publicly available about 2 weeks ago, as part of the 214th Report.   The listed deadline for Comment to the Maryland Supreme Court is on March 1, 2023, with an open meeting scheduled for March 23, 2023.

The concerns about reforming Maryland’s Unreported Opinion Rule are long-running and also previously discussed in previous posts here (on recent Maryland Supreme Court decision), here (on 2015 Rules proposal to allow them on Case Search, but restricting their use from other jurisdictions for first time), and here (Rules Committee dropping 2015 restrictions after criticism).   The Federal Courts got rid of any Local Rules with a prohibition against citations for persuasive value back on January 1, 2007.   This present iteration, is the first time the Rules Committee has proposed doing away with the unreported opinion citation Rule. 

However, with 15 years of Federal appellate Courts managing the Rule change, the Rules Committee, has chosen to not follow the Federal model of a simple removal of the prohibition as all Federal Circuit Courts of Appeal now have, with citations available online.  Instead, like the 2015 version, the Maryland Rules Committee seems to exchange more transparency for “granting” unreported opinion citations, by creating a much more complex Rule in its place. 

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


(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) Citation. 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.

The simple reformation comparable to the Federal Rule of Appellate Procedure 32.1 in effect since 2007, has worked very well in practice throughout the United States.  Yet, the Rules Committee did not apply a simple change to Rule 1-104.  This could have been as simple as changing (a) from “An unreported opinion of the Court of Appeals or Court of Special Appeals is n[ot] precedent within the rule of stare decisis […]“ and just striking out “nor persuasive authority,” with a similar revision to 1-104(b). On page 152, of the 114th Report, is the new Proposed Rule for 1-104.  Instead of two sections, it now has seven (7) apparent sections and subheadings. 

The Reporters Note describes these changes as follows:

“Proposed amendments to Rule 1-104 permit citation to unreported opinions as persuasive authority, under certain circumstances. The Rules Committee was informed that courts in other states increasingly permit citations to unreported or unpublished opinions, particularly when there is no published authority on point. The Court of Special Appeals, now the Appellate Court, was asked to make a recommendation and reached a consensus that citation of unreported opinions should be permitted and recommended certain parameters, which were incorporated into the proposed amendments to Rule 1-104. Proposed amendments to section (a) retitle the section to govern “Opinions of the Appellate Courts of Maryland.” Section (a) refers to unreported opinions of “the Supreme Court, the Appellate Court, or either of those courts under their former names” to make it clear that opinions issued prior to the 2022 name change are also governed by the Rule. New subsection (a)(1) contains the language from current section (a) but deletes “nor persuasive authority.” New subsection (a)(2)(A) contains the language of current section (b) with an exception for citation to unreported opinions as persuasive authority under the circumstances contained in subsection (a)(2)(B). New subsection (a)(2)(B) states the circumstances and manner in which unreported opinions may be cited. Citation is limited to an opinion of the Appellate Court after the effective date of the Rule. The Court of Special Appeals reported that a strong majority of its judges are in favor of a prospective effective date for the new provision. The unreported opinion may be cited for its persuasive value only if there is no reported opinion on point. A per curiam opinion cannot be cited. A Committee note after subsection (a)(2)(B) directs the reader to the Judiciary website to access unreported opinions issued after May 1, 2015. New sections (b) and (c) address citation to other authority that is not precedent. Section (b) applies to Maryland trial court opinions. It permits citation as persuasive authority where no reported authority addresses the issues before the court. RULE 1-104 156 Section (c) governs citation to opinions by courts in other jurisdictions. The Appellate Court – then the Court of Special Appeals – updated its policy regarding citation to unreported opinions of Federal courts and courts of other states in Gambrill v. Board of Education of Dorchester County, 252 Md. App. 342, 352 n.6 (2021), rev’d on other grounds, 481 Md. 274 (2022). The shift brings the Appellate Court policy in line with the Supreme Court of Maryland. Both appellate courts have now stated that an unreported opinion of a court in another jurisdiction may be cited as persuasive authority if it would be permitted to be cited for that purpose in that jurisdiction. […]”

Summary of Outstanding Issues for Maryland Supreme Court Consideration

It appears the Maryland Rules Committee has finally agreed upon the main issue for the first time ever, which is that the vast majority of unreported opinions in the Appellate Court of Maryland will be citable by litigants, attorneys, and judges.  Based on the version from the 214th Report, there appear to be at least four (4) outstanding issues on the Rules Committee’s Proposal outlined below, to be addressed and/or decided by the Maryland Supreme Court.

  1. Does not apply to Per Curiam Opinions in General (“Judge Per Curiam”).

Chief Judge Joseph Murphy in Ocean City at the MSBA convention, discussed how one of his reforms after being made Chief Judge was to mostly get rid of, or at least severely limit that most prolific writer of Court of Special Appeals’ decisions, the enigmatic “Judge Per Curiam.”   Now, whatever minor resurgence of appellate per curiam opinions, will be given greater importance than before.  These usually are relatively simple without much analysis or detail.   That’s fine, as it would be rare that any litigant would cite these as necessary for “persuasive” value.   But the most recent Maryland Rules Committee proposal, elevates any per curiam opinions, to a quasi-legal status, so that they are not citable.  This exception, is unnecessary, and creates a sizable loophole in the Rule, that does not exist in the Federal Courts, and may be a first in state Courts.   Additionally, there are already well detailed and important per curiam Reported opinions.   See e.g. State v. McCallum, 321 Md. 451, 452 (1991)(per curiam); Europo Books, Inc. v. Pomerleau, 41 Md. App. 114, 115 (1979)(per curiam).  The Maryland Rules Committee did not explain if those are now prohibited throughout Maryland, to be citable. 

2. The Day of Enactment, and Whether It is Done from May 1, 2015 (when all Maryland Appellate Court opinions were put on the Maryland Judiciary Website, as well as Westlaw and Lexis) or Prospectively in 2023 or 2024.

The Maryland Rules Committee, while noting most Appellate Court of Maryland Judges preferred prospective application only, did not decide, a critical issue of when Unreported Opinions should be citable. The general options are (1) from when they were first made widely available online of May 1, 2015, or (2) it should have some sort of prospective application, such as a date in 2023, or perhaps January 1, 2024.

3. Trial Court Opinions, are Now Subject to Restrictions for First Time.

Harkening back to the concerns of the 2015 Post, which explained how the proposed Rule would inter alia create significant ‘forum shopping’ concerns, proposed new Rule subsection 1-104(a)(2)(B), now seeks to restricts trial court opinions for the first time, if they are not precedential (which none are).  There are no such restrictions at present, and it’s unclear why the Maryland Rules Committee has sought to add this. Similarly, the new Proposed Rule, apparently now requires the attorney to ascertain how each 51 jurisdictions (including D.C.) treats unreported opinions (some like Delaware and Arkansas, consider them precedential), whether it be trial court or appellate court, and explain with certitude, if they are “precedent” or “persuasive,” even when they are fully available online, with citations. Since they are in different jurisdictions, they are at most persuasive, but the Maryland Rules Committee, now appears to duplicate the concerns from the 2015 Rules endeavor. 

4. Ambiguous and Subjective Language Exists

As part of the “Certain Parameters” noted by the Reporter, the Rules Committee feels unreported opinions should be used “[o]nly if no reported authority adequately addresses an issue before the court.” [Emphasis Added] This vague and subjective language, unnecessarily conflates the Proposed Rule. Many federal appellate Courts of Appeal, outline their preference for the use of unreported opinions, when there’s no direct precedent, while explicitly noting in this scenario, unreported opinions should not be used for persuasive value, and thus are disfavored. Most experienced appellate practitioners have no difficulty understanding, using, and applying this.

But as one example of how this would have unintended consequences, and chill citations and advancements of law, let’s say there’s 15-year old on-point Reported precedent, but three recent reversals in the Appellate Court of Maryland (ACM), that happen to be unreported. Should litigants still be “restricted” from pointing out the three reversals in the Appellate Court of Maryland, or are they limited to the Supreme Court of Maryland only? Not only does this create an issue, when none existed before, but unfortunately the Rules Committee appears to have made no attempt to use any less vague terms, such as “directly” which would have conveyed the same point without the ambiguity, and subjectiveness inherent in the present proposed wording.

The new Proposed Rule is overall a good thing.  15 years after the Federal Courts got rid of citability limitations in “unpublished” opinions for persuasive value, Maryland is poised to take this important step.  When adopted, it supports transparency concerns, improves judicial opinion writing and accountability in general,  and helps ensure attorneys and litigants can cite similar cases in support, at least for persuasive value.  However, by expanding the proposed Rule from two (2) to seven (7) headings and subsections, this may lead to an unnecessary conflation of what’s a fairly easy fix, for Maryland to become part of the vast majority of States that do not seek to limit citations of their appellate decisions, as persuasive value, in similar cases. 

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

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