Argument Panel: Proposed New Rule on Citing Unreported ACM Opinions

“After much debate,” the 214th Report of the Maryland Rules Committee proposes to amend Rule 1-104, which has long prohibited citation to unreported Maryland appellate decisions as precedent or as persuasive authority. The new Rule 1-104(a)(2)(B) would provide that, unless “designated as a per curiam opinion, an unreported opinion of the Appellate Court issued after [effective date of Rule] may be cited for its persuasive value only if no reported authority adequately addresses an issue before the court.” The comment period ends March 1, 2023, and the proposal will then go to the Supreme Court of Maryland for its consideration.

In what is hopefully the first of a recurring feature, we’ve polled our editorial board to get their views of the new rule.

Steve Klepper: Pulling rank, I’ll go first by saying that I embrace the proposed new rule, for the same reasons that I embrace questions at oral argument. The Appellate Court is telling us the circumstances when it thinks we can help the Court by citing an unreported opinion. Sure, the new rule will be subject to abuse, just like any rule that calls for an exercise of professional judgment. Briefs filled with questionable citations to unreported opinions, however, are unlikely to have otherwise been persuasive. Good advocates will know not to cite unreported opinions unwisely, or to devote much space to responding to adversaries’ unwise citations. I think the change, if approved, will be most helpful when the Appellate Court addresses a first-impression question of interpreting a statute or rule. Various reasons, including vehicle concerns, may cause the Appellate Court not to report the opinion, or the Supreme Court not to grant certiorari. The new rule will allow parties to cite such an opinion to trial courts or the Appellate Court, with the understanding that the Appellate Court did not vote to adopt the opinion as binding precedent.

Carrie Williams: While I don’t necessarily oppose the proposed rule, and it’s certainly true that the vast majority of courts allow unreported opinions to be cited as precedential authority, I must confess that I have less faith than Steve does in our siblings at the bar. Every appellate lawyer knows the pain of finding that case with a fact pattern identical to yours or with that quote that is perfect only to realize that it’s unreported. The vague language of the proposed Rule leaves the door open for advocates to convince themselves that the reported cases just don’t adequately address the issue before the court. I fear the temptation will be too great, and we will see a proliferation of unreported case citations. I am also thinking of my friends in the Criminal Appeals Division of the Attorney General’s Office, where I practiced for 16 years. A significant portion of their hefty caseload involves pro se litigants. While I don’t blame pro se litigants for failing to understand the nuances of case citation or precedential versus binding authority, the fact remains that, when responding to those briefs, government attorneys will now have to determine whether they need to respond to arguments made based on those unreported opinions. Are these concerns enough to reject the proposed rule? Probably not. Is it possible that the new rule will improve appellate advocacy? Sure. Will a group of lawyers collectively exercise restraint for the first time in human history? I guess we’ll see.

Tia L. Holmes: I wholeheartedly embrace having the ability to cite an unreported opinion as persuasive authority. As a creative appellate advocate, I have never looked away from unreported opinions. In fact, I have borrowed the reasoning from those opinions in instances where the reported cases failed to adequately address the issue(s) in my particular case. It would be nice to cite cases to remind the Court how previous panels have dealt with the issue(s). The only problem I see with the proposed rule is the ambiguity in the following italicize language: “an unreported opinion of the Appellate Court . . . may be cited for its persuasive value only if no reported authority adequately addresses an issue before the court.” This leaves the application of the proposed rule open to too much interpretation when/if it is adopted. What does it mean to “adequately address” an issue? That will be the $1 million question each time an attorney considers whether to cite an unreported case and each time a judge considers an unreported case that was cited.

Michael Wein:  So I won’t repeat for the inaugural “Roundtable” what I’ve written before about topic, including some of the specifics of the present Proposed Rule.  Attorneys and litigants should have the ability to cite similar and potentially identical, legal and factual cases in Maryland.  I would go and just add to the table, this conversation began, at least in the Federal system, to correct the potential injustice identical cases, could be decided differently based on the mere fortuity a decision was “unreported” or “unpublished.”  It so drew Judge Richard Arnold’s attention and ire in the Eighth Circuit case of Anastasoff v. United States, 223 F.3d 898 (8^th Cir.)(2000)[Cleaned Up],  (a seemingly innocuous legal matter of whether a tax refund claim to the IRS was timely under the “Mailbox Rule”), it was briefly held the Court’s own “Local Rule” prohibiting citation, violated Article III of the Constitution. (Anastasoff was later found to be moot, because the IRS acquiesced on the Mailbox Rule)  But read Anastasoff.  Even if it was an unnecessary bridge too far to declare the Rule “unconstitutional,” Judge Arnold did a deep dive on the need to respect precedent, tracing to the Framers including Hamilton, Madison, and James Wilson.  Being unable to cite to even identical cases for persuasive value, allows Courts to ignore common law precedent.  The Federal Courts and most other States, have since 2007, disavowed and disproved any significant concerns exist, against a free ability to cite publicly available “unreported” opinions.  Instead, allowing for citations to similar and even identical legal and factual issues for persuasive value, has few negatives, and instead makes the judiciary better, and more transparent. 

Chris Mincher: I am enthusiastically supportive of this change for all the obvious reasons, but I fail to see the justification for any of the continuing limitations. Whether it’s a per curiam opinion or one in which there’s another “adequate” reported opinion – the cases happened, the results happened, the opinions happened. What is the utility to the appellate courts and the legal system to act like they didn’t?

If the answer is just that those opinions aren’t persuasive, well, OK, but lots of things people cite in briefs aren’t persuasive. The appellate judges can decide for themselves what persuades them and what doesn’t, and attorneys that choose to focus on weaker materials do so at their peril. For example, a party that ignores on-point reported opinions for unreported ones is not making a good argument, but it’s the case that party wants to make and I don’t see why it shouldn’t be able to.

In the end, these kinds of restrictions potentially result in appellate judges receiving less information about an issue and being less aware of how it has been treated by the legal system in the past. I’m not sure why having a less full picture would be a good thing. Even if carrying little legal weight, per curiam opinions or unreported opinions similar to reported ones could have specific circumstances or aspects that judges wouldn’t otherwise have thought of, and would want to address in a future decision in another case. I’m much more in favor of allowing parties to bring whatever they want to the courts’ attention, and then trusting the judges to know what should be useful to their decisions and what should not be.