The Michigan Supreme Court always holds public hearings on new court rule proposals, but this week's hearing marked a rare event. Not only did the MSC hear from practitioners, it also heard arguments from representatives of the Court of Appeals itself. Judges Elizabeth Gleicher and Christopher Murray, members of the COA's Rules Committee, came to defend the COA's proposal, against the barrage of unified opposition from the bar. The MSC regularly hears objections to COA decisions, but only in a hearing like this does the COA itself get to show up and present argument in defense of its position! There is no link yet to a video archive of the hearing, but the debate is summarized below.
For those not familiar with the proposal, the rule amendment proposes to insert the following provision into MCR 7.215(C): "Citation to such [unpublished] opinions in a party's brief is disfavored unless the unpublished opinion directly relates to the case currently on appeal and published authority is insufficient to address the issue on appeal." Moreover, if practitioners do cite unpublished authority in their brief, they must explain "why existing published authority is insufficient to resolve the issue."
The unanimous opposition to these provisions from the bar boils down to two objections, one principled and one practical. The principled objection is that the rule on its face subordinates unpublished authority to a "disfavored" category, one below the category of "persuasive authority" in which we find law review articles and foreign case law. Justice Markman eloquently explained in his dissent at the end of the administrative order why unpublished authority does not deserve this treatment. In sum, it is not just a letter to the parties, it is a reasoned decision of the court and as such is the law, even though it is not binding on future panels. The practical objection is that the rule would be difficult for conscientious practitioners to apply because the precondition for citing unpublished opinions is vague: the published authority must be "insufficient." Does that mean it does not "serve as well as" the published authority (a phrase used in the Alaska and North Carolina citation rules) or does it mean one cannot fashion an argument by extension or analogy to published authority--a far more difficult condition to satisfy?
To summarize their concerns in an illustrative fashion, the proposed language contains both a lightning rod and a license to kill. The lightning rod is the word "disfavored." It attracted a storm of criticism from practitioners, and it is likely draw ire from a Court of Appeals judge toward any brief that does meet the rule's subjective standard. The license to kill is the subjective standard itself, embodied in the word "insufficient." One might say that those states prohibiting citation to unpublished opinions believe there is no situation where published authority is insufficient, and there are likely some judges on the Michigan Court of Appeals that agree with that sentiment. Because it is subjective, this rule gives them license to kill off the unpublished opinion, at their discretion.
Judges Gleicher and Murray may have disagreed with the principled objection to some extent; they focused their argument on the rule's modest objective to stop the annoying, unhelpful habit among some practitioners of citing unpublished opinions for well-settled legal propositions. They also contend that the rule falls within the mainstream of citation rules across the country.
Based the recent 50-state survey of citation rules the Council for the Appellate Practice Section received from the Court of Appeals Rules Committee, the rule is not mainstream. In fact, comparing that survey to earlier statistical information, this rule goes in the opposite direction from the national trend. In 2001, based on a then-recent survey, Ninth Circuit Court of Appeals Judge Kozinski --a staunch advocate of "no citation" rules--argued to the House Judiciary Committee that 35 states had no-citation rules. If one removes those states that prohibit citation only to summary orders, the number drops to approximately 31. According to the Court of Appeals' more recent survey, today there are only about 16 states with no-citation rules (again, depending on classification). In the last 14 years, around 16 states have defected from the land of no citation to the land of free citation. The federal appellate courts experienced a similar trend over that time, culminating in a recent amendment to the federal rules that prohibits circuits from barring citation to unpublished opinions.
Of the 16 states which moved from no citation to allowing citation, only three--Alaska, Kansas, and North Carolina--adopted a rule that "discouraged" citation to unpublished descisions. And two of those allowed citation when the published authority would not "serve as well as" the unpublished authority, arguably a less burdensome condition than published authority being "insufficient."
Practitioners were not unsympathetic to the COA's desire to improve briefing practices; both the Appellate Practice Section and from Michigan Coalition of Family Law Appellate Attorneys suggested alternative ways of dealing with the problem, and even alternative language if a rule must adopted.