[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
When the Appellate Court of Maryland issued its unreported opinion in St. Francis Academy, et al. v. Gilman School, Inc., 2022 WL 833371 (Apl. Ct. Md., Mar. 21, 2022), it addressed a novel issue and I wrote that: “In my view, the only error was that the appellate court did not publish its opinion so that it would be precedent.” See Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones (Mar. 24, 2024).
St. Francis Academy is a significant decision. For example, recently, it was cited in Following the Trail of Lost or Destroyed ESI with Forensic Imaging | Locke Lord LLP – JDSupra (May 28, 2024); A. Stuart, “Privacy in Discovery After Dobbs,” 26 Va. J.L. & Tech. 3, 50 n. 257 (2023); and, 2 Shue, Vergari, State Computer Law § 8:2027.
To be sure, these cases lack independent persuasive value under Maryland Rule 1-104(a)(2)(A). But the consistency of the Appellate Court’s rulings in the face of these proliferating challenges nevertheless demonstrates that as a practical matter, the court has repeatedly and uniformly permitted authentication on varied, alternate, and sometimes multiple grounds, and in deference to the trial court’s discretionary authority to keep the bar for authentication appropriately low.
Respondent’s Brief, Mooney v. State, No. 0032, Sept. Term, 2023, at 28, passim.
Last year, Maryland liberalized permission to cite unreported decisions. Please see Proposal to Eliminate Judicial Disappearing Ink (Feb. 4, 2023), describing what is now Md. Rule 1-104. The amendment was a significant improvement. It permits citation of recent unreported decisions in limited circumstances for persuasive value.
However, while the amended Maryland Rule is an improvement, it is not as broad as Fed. R. App. P. 32.1, which states that citation of unreported opinions cannot be prohibited or restricted.
In my opinion, the new Maryland Rule does not go far enough.
What is an “Unreported” Opinion?
Maryland Rule 8-605.1 states: “The Appellate Court shall designate for reporting only those opinions that are of substantial interest as precedents.” There is a process to request that an unreported opinion be changed to a reported one. That decision is “entirely” in the Court’s discretion. Venter v. Bd. of Educ., 185 Md. App. 648, 692 (2009), cert. denied, 410 Md. 561(2009).
Unreported or unpublished opinions serve an important function for courts that have extremely heavy caseloads. Many decisions are simply dispute resolution – calling the balls and strikes. Many do no more than apply settled law to undisputed facts.
Every appellate decision does not need to be a polished gem with exhaustive research and detailed explanation. As such, there are many sound reasons to treat many decisions differently than reported decisions. In my view, however, the Maryland Rule goes too far.
Some Unreported Opinions Are of Substantial Interest
Two recent unreported decisions of the Appellate Court of Maryland, Mooney v. State, 2023 WL 6783388 (Apls. Ct. Md. Oct. 13, 2023), cert. granted, 486 Md. 387 (2024) and Akers v. State, 2024 WL 338958 (Apls. Ct. Md. Jan. 30, 2024), cert. granted, No. 7, Sept. Term 2024 (May 28, 2024), were deemed “cert-worthy” by the Supreme Court of Maryland.
Mooney and Akers are not the only decisions in which certiorari was granted to review an unreported decision. For example, “[f]ollowing decision by the Court of Special Appeals in an unreported opinion, we issued the writ of certiorari in this case….” Adams v. Coates, 331 Md. 1, 2 (1993).
It seems difficult to square those viewpoints about the cases. While the two standards may not be perfectly coextensive, how can a decision be both (1) not important enough to publish – – not “of substantial interest” – – but also (2) important enough for issuance of a writ of certiorari by the Supreme Court of Maryland?[1]
In light of that, it may be preferable to continue liberalization of the limited citation rule.
The State’s Brief in Mooney Relies Extensively on Unreported Opinions
It is equally interesting to also note that the State’s appellate brief in Mooney liberally cited unreported decisions. See Respondent’s Brief, Mooney v. State, No. 0032, Sept. Term, 2023, at 28, passim.
The State first cited reported decisions and then argued:
But those reported decisions are just the tip of a very large iceberg. As of this writing, undersigned counsel is aware of 45 unreported opinions in the 9 years since unreported decisions of the Appellate Court became available electronically where a criminal defendant challenged admission of video footage on authentication grounds. That court has not reversed in any case. [emphasis added].
Respondent’s Brief, Mooney v. State, No. 0032, Sept. Term, 2023, at 28, passim.
Noting the governing rule, the State argued: “To be sure, these cases lack independent persuasive value under Maryland Rule 1-104(a)(2)(A). But the consistency of the Appellate Court’s rulings in the face of these proliferating challenges nevertheless demonstrates that as a practical matter, the court has repeatedly and uniformly permitted authentication on varied, alternate, and sometimes multiple grounds, and in deference to the trial court’s discretionary authority to keep the bar for authentication appropriately low.”
Eleven [unreported] cases were affirmed based on pictorial testimony…The Appellate Court affirmed eighteen [unreported] cases where a video was authenticated through the silent witness method.
Respondent’s Brief, Mooney v. State, No. 0032, Sept. Term, 2023, Footnote 10.
In footnote 10, the State wrote: “Eleven [unreported] cases were affirmed based on pictorial testimony.” It then cited them. The State added: “The Appellate Court affirmed eighteen [unreported] cases where a video was authenticated through the silent witness method.” It also cited them. It then cited ten unreported decisions combining the two authentication theories and cited six others. The State added: “The Appellate Court’s approach is consistent….”
In short, the State is arguing that unreported decisions are important to a present case.
Was the State Allowed to Cite Those 45 Unreported Decisions?
The Rules Committee has stated that unreported opinions issued after May 1, 2015, are available on the Judiciary website. However, prior to amendment of Rule 1-104, “any reliance” upon an unreported decision was “misplaced.” Lisy Corp. v. McCormick & Co., Inc., 219 Md. App. 592, 602-03 (2014), aff’d on other grounds, 445 Md. 213 (2015). “We decline to consider the unreported case law that Petitioners refer to on this point.” Oliveira v. Sugarman, 451 Md. 208, 236 n. 20 (2017); cf. Smith v. Warbasse, 71 Md. App. 625, 634-35 (1987).
As amended last year, Maryland Rule 1-104(a) states:
(1) Not Precedent. An unreported opinion of the Supreme Court [of Maryland] or the Appellate Court is not precedent within the rule of stare decisis.
(2) Citation.
(A) Generally. An unreported opinion of the Supreme Court or the Appellate Court may not be cited as precedent within the rule of stare decisis or, except as provided in subsection (a)(2)(B) of this Rule, as persuasive authority. An unreported opinion of either Court may be cited only (i) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, (ii) in a criminal action or related proceeding involving the same defendant, (iii) in a disciplinary action involving the same respondent, or (iv) as persuasive authority as provided in subsection (a)(2)(B) of this Rule.
(B) Persuasive Authority. Unless designated as a per curiam opinion, an unreported opinion issued on or after July 1, 2023 may be cited for its persuasive value only if no reported authority adequately addresses an issue before the court. The citation shall clearly identify the opinion as unreported and include the case number, term, and date the opinion was filed. An unreported per curiam opinion may not be cited as persuasive authority. [emphasis added].
Maryland Rule 1-104(a), amended 2023.
I suggest that, while not 100% clear, the better view is that the State was not permitted to cite the 45 unreported opinions, or at least most of them. First, the State wrote: “But those reported decisions are just the tip of a very large iceberg.” Second, the vast majority of them predate July 1, 2023.
Is Rule 1-104 a “Rule” or a Suggestion?
But, those 45 decisions were viewed by the State as relevant to an important pending issue. Let’s assume that the State is correct.
That is why “judicial disappearing ink” can present such a dilemma. Why can’t the decisions be cited? Assuming, arguendo, that the State’s reading of them is correct, must 45 supportive, written decisions – issued over nearly a decade – be ignored?
That is why “judicial disappearing ink” can present such a dilemma. Why can’t the decisions be cited? Assuming, arguendo, that the State’s reading of them is correct, must 45 supportive, written decisions – issued over nearly a decade – be ignored?
Michael Berman.
Rule 1-104 does not specify any consequences for a violation.
Maryland courts have inherent authority to sanction parties for violations of the Rules. And, under Rule 1-201(a): “If no consequences are prescribed [by a Maryland Rule], the court may compel compliance with the rule or may determine the consequences of the noncompliance in light of the totality of the circumstances and the purpose of the rule.”
The Supreme Court of Maryland has admonished that “the rules of practice and procedure adopted by this Court are to be strictly followed and … [a] violation of one of these rules constitutes error, normally requiring such curative action or sanction as may be appropriate.” Jackson v. State, 358 Md. 612, 623 (2000)(citation and quotations omitted); accordSchaller v. Castle Dev. Corp., 347 Md. 90, 96 (1997).
However, it would seem more than anomalous for a court to sanction a litigant for quoting or referring to a court’s decision.
And, if the “no citation rule” has no teeth, why is it a rule? The Supreme Court has “focus[ed] attention upon the Rules” and “remind[ed] all hands that they are not guides to the practice of law but precise rubrics ‘established to promote the orderly and efficient administration of justice and (that they) are to be read and followed.’” Isen v. Phoenix Assur. Co. of New York, 259 Md. 564, 570 (1970).
I suggest that the problem is that Rule 1-104 is too limited. There is some older – – and now likely superseded – – Maryland authority that “citation of unreported opinions (Maryland or otherwise) ordinarily is not appropriate.” Gomez v. Jackson Hewitt, Inc., 427 Md. 128 n. 18 (2012)(emphasis added), quoting Clancy v. King, 405 Md. 541, 559 n. 17 (2008)(“Although the citation of unreported opinions (Maryland or otherwise) ordinarily is not appropriate, this is an unusual situation. Kahn [an unreported Delaware decision] has been cited by the Maryland Court of Special Appeals…. Delaware courts have described Kahn as a ‘well-reasoned decision.’…” In light of “the paucity of homegrown Maryland cases in this area, we choose to include Kahn here for its persuasive analysis and sound result.”). One earlier Maryland decision cited unreported cases, not as authority, “but only to call attention to them.” Harris v. Hartford Acc. & Indemn., Co., 55 Md. App. 441 n. 3 (1983).
I suggest that there is a better mousetrap that balances the Court’s need, in light of its heavy caseload, to efficiently handle unremarkable, dispute-resolution appeals in unreported, nonprecedential decisions, with a litigant’s countervailing natural desire to cite any supporting judicial decision, whether reported or not.
Courts frequently admit evidence “for what it’s worth.” “Weight” is decided by the finder of fact. Perhaps a middle ground might be to permit citation of unreported decisions as non-precedential and non-binding, and for whatever persuasive value the Court deems they may, or may not, have.
But, I suggest that a limitation on citation should be eliminated. See S. Snowden, “’That’s My Holding and I’m Not Sticking to It!’ Court Rules That Deprive Unpublished Opinions of Precedential Authority Distort the Common Law,” 79 Wash. U. Law Quarterly 1253 (2001).
This issue has been hotly debated for many years. For those interested in more detail, see, e.g., E. Finkel, “An Ex-Citing Rule,” 109 Ill. B.J. 10 (2021); M. Gardner, “Dangerous Citations,” 95 N.Y.U.L. Rev. 1619 (2020); M. McAlister, “’Downright Indifference:’ Examining Unpublished Decisions in the Federal Courts of Appeals,” 118 Mich. L. Rev. 533 (2020); S. Witalee, “Pa. Supreme Court Adopts Rule Allowing Citation of Unpublished Superior Court Opinions,” 21 No. 13 Lawyers J. 7 (2019); C. Flora, et al., “Citing Unpublished Cases in Indiana: Rules and Caselaw,” 61 Apr. Res Gestae 31 (2018); B. Grunwald, “Strategic Publication,” 92 Tul. L. Rev. 745 (2018); Hon. D. Lillehaug, et al., “A Fresh Look at the Problem of Unpublished Opinions,” 73 Dec. Bench & B. Minn. 16 (2016); S. Rempell, “Unpublished Decisions and Precedent Shaping: A Case Study of Asylum Claims,” 31 Geo. Immigr. L. J. 1 (2016); L. Wood, “Out of Cite, Out of Mind: Navigating the Labyrinth That is State Appellate Courts’ Unpublished Opinion Practices,” 45 U. Balt. L. Rev. 561 (2016); Hon. D. Stroud, “The Bottom of the Iceberg: Unpublished Opinions,” 37 Campbell L. Rev. 333 (2015); Hon. R. Black, “Unveiling Ohio’s Hidden Court,” 16 Akron L. Rev. 1 (2015); R. Moghadam, “Note – Judge Nullification: A Perception of Unpublished Opinions,” 62 Hastings L.J. 1397 (2011); W. Richman, “Much Ado About the Tip of an Iceberg,” 62 Wash. & Lee L. Rev. 1723 (2005); D. Adams-Strickland, “Don’t Quote Me: The Law of Judicial Communications in Federal Appellate Practice and the Constitutionality of Proposed Rule 32.1,” 14 Comm. L. Conspectus 133 (2005); P. Schiltz, “The Citation of Unpublished Opinions in the Federal Courts of Appeals,” 74 Fordham L. Rev. 23 (2005); M. Pearson, “Citation of Unpublished Opinions as Precedent,” 55 Hastings L.J. 1235 (2004); S. Barnett, “No-Citation Rules Under Siege: A Battlefield Report and Analysis,” 5 J. App. Prac. & Process 473 (2003); S. Barnett, “From Anastasoff to Hart to West’s Federal Appendix: The Ground Shifts Under No-Citation Rules,” 4 J. App. Prac. & Process 1 (2002); S. Katsh, et al., “Constitutionality of ‘No-Citations’ Rules, 3 J. of Appellate Prac. & Process 287 (2001); M. Weresh, “The Unpublished, Non-Precedential Decision: An Uncomfortable Legality?,” 3 J. of App. Prac. & Process 175 (2001); W. Reynolds, et al., “Limited Publication in the Fourth and Sixth Circuits,” 1979 Duke L.J. 807 (1979); Corwin v. Br. Amer. Tobacco PLC, 371 N.C. 605 n. 6, 821 S.E.2d 729 (2018); J. Gerken, “A Librarian’s Guide to Unpublished Judicial Opinions,” 96 Law Library J. 3 (2004); Wright & Miller, 16AA Fed. Prac. & Proc. Juris. §3978.10; cf. Hon. B. Martin, “In Defense of Unpublished Opinions,” 60 Oh. State L. J. 177 (1999).
Notes
[1] Under Rule 8-303, a petition for certiorari must contain a “particularized statement of why review of those issues by the Supreme Court is desirable and in the public interest….” The issue presented must be “important.” W. Murphy, et al., “Appellate Practice for the Maryland Lawyer,” (Md. State Bar Ass’n. 6th ed. 2023), Chap. 18, 281.
