Proposal to Eliminate Judicial Disappearing Ink

The January 30, 2023, 214^th Report of the Standing Committee on Rules and Practice proposes an important update of Rule 1-104 regarding unreported opinions. It deletes the provision that, with very limited exceptions, prohibits their citation as precedential or persuasive in any court.

If the proposal is approved by the Supreme Court of Maryland, many unreported decisions may, subject to specific limits, be cited as persuasive.

This is a significant change because unreported decisions sometimes resolve novel issues. See  Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones where an unreported decision established a protocol for discovery from non-party cell phones.  The proposal, although narrower than its Federal counterpart, would be a great improvement.

As a general matter, the proposal states that unreported opinions are no longer judicial disappearing ink.  The transmittal states that the proposal was reached “[a]fter much debate….”

The Reporter’s Note states:

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 The Rules Committee was informed that courts in other states increasingly permit citations to unreported or unpublished opinions, particularly when there is no published authority on point.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 proposed Rule is not retroactive.  The Reporter’s Note states:

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.

Further, the Reporter’s Note explains:

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.

Currently, Rule 104 states:

(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. [emphasis added].

The Standing Committee’s January 30, 2023, transmittal letter with proposed amendment to Rule 104 states that it applies to unreported opinions of the Supreme Court or Appellate Court of Maryland, Maryland trial courts, trial and appellate courts of other States, and Federal trial and appellate courts.

The transmittal explains that, under proposed Rule 1-104(a)(1), unreported opinions are not precedent within the rule of stare decisis.  However, they may be cited in Maryland appellate courts for any purpose other than precedent, and with exceptions, as persuasive.  Under Subsection (b), however: “A memorandum opinion, order, or other decision of a Maryland trial court may be cited for its persuasive value only if no reported Opinion adequately addresses the issue before the court.”  [emphasis added]. Further, Subsection (c) limits use of decisions of other State and Federal courts to situations where the issuing court would permit citation for that purpose.

Proposed Rule 1-104(a)(2)(B) provides exceptions.  The submittal letter states:

An unreported Opinion of the Supreme Court or the Appellate Court other than a per curiam Opinion, filed after the effective date of the new Rule may be cited as persuasive authority, but only if no reported authority adequately addresses the issue before the Court. Unreported per curiam Opinions may not be cited as persuasive authority. Subsection (a)(2)(B) places certain other conditions as well on the citation of unreported Appellate Court Opinions. A Committee note following subsection (a)(2)(B) notes that unreported Opinions issued after May 1, 2015 are available on the Judiciary website. [emphasis added].

The text of the proposed Rule follows:

Rule 1-104. UNREPORTED OPINIONS

(a) Not AuthorityOpinions of the Appellate Courts of Maryland

(1) Not Precedent

An unreported opinion of the Court of Appeals or Court of Special AppealsSupreme Court, the Appellate Court, or either of those Courts under their former names is neither not precedent within the rule of stare decisis nor persuasive authority.

Cross reference: See Rule 8-605.1 regarding reporting of opinions of the Appellate Court.

(b)(2) Citation

(A) Generally

An unreported opinion of either Courtthe Supreme Court, the Appellate Court, or either of those Courts under their former names may be cited in either Court for any purpose other than as precedent within the rule of stare decisis or, except as provided in subsection (a)(2)(B) of this Rule, as persuasive authority. In any other court, an unreported opinion of either Court may be cited only (1)(i) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, (2)(ii) in a criminal action or related proceeding involving the same defendant, or (3)(iii) in a disciplinary action involving the same respondent, or (iv) as persuasive authority as provided in subsection (a)(2)(B) of this Rule.

Committee note: A request that an unreported opinion be designated for reporting is governed by Rule 8-605.1 (b).

(B) Persuasive Authority

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 citation shall clearly identify the opinion as unreported and include the case number, term, and date the opinion was filed. A per curiam opinion may not be cited as persuasive authority.

Committee note: Unreported opinions issued after May 1, 2015 are available on the Judiciary website.

(b) Maryland Trial Court Decisions and Opinions

A memorandum opinion, order, or other decision of a Maryland trial court may be cited for its persuasive value only if no reported authority adequately addresses an issue before the court.

(c) Opinions Issued by Courts in Other Jurisdictions

An unreported or unpublished opinion, order, or other decision issued by a federal court or by a court in a jurisdiction other than Maryland may be cited as persuasive authority if the jurisdiction in which the opinion was issued would permit it to be cited for that purpose. The citation shall indicate that the opinion is not precedent in the issuing jurisdiction.

Cross reference: See MAS Associates v. Korotki, 465 Md. 457, 479 n.11 (2019) and Gambrill v. Bd. Of Educ. of Dorchester County, 252 Md. App. 342 (2021), rev’d on other grounds, 481 Md. 274 (2022) regarding the persuasive value of unreported or unpublished authority from courts in other jurisdictions.

(d) Attachment

If a party cites an opinion, order, or decision under section (b) or (c) of this Rule that is not available in a publicly accessible electronic database, the party shall attach a copy of the cited document to the pleading, brief, or other paper in which the document is cited.

Committee note: The Maryland Business and Technology Case Management Program publishes certain opinions in a database available on the Maryland Judiciary website.

Source: ThisSection (a) of this Rule is derived in part from former Rule 8-114, which was derived from former Rules 1092 c and 891 a 2, and is in part new. Sections (b), (c), and (d) are new.[1]

By way of comparison, Federal Rule of Appellate Procedure 32.1 states:

(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.

The Federal Advisory Committee Note states that the Rule is “extremely limited.”  The Committee wrote that: “It says nothing about what effect a court must give to one of its unpublished opinions or to the unpublished opinions of another court. Rule 32.1 addresses only the citation of federal judicial dispositions that have been designated as “unpublished” or “non-precedential” — whether or not those dispositions have been published in some way or are precedential in some sense.” [emphasis in original].

Under the Federal rule, “a court may not instruct parties that the citation of unpublished opinions is discouraged, nor may a court forbid parties to cite unpublished opinions when a published opinion addresses the same issue.” [emphasis added].

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[1] The 530-page Report suggests many other important Rule changes.