Unpublished opinions

The Ninth Circuit today denied a petition for rehearing en banc in Bockting v. Bayer, 399 F.3d 1010, 1024 (9th Cir. 2005), in which a three-judge panel decided, by a 2-1 vote, that the confrontation-of-witnesses ruling in Crawford v. Washington, 541 U.S. 36 (2004), applies retroactively.  Judge O'Scannlain, joined by 8 other judges, including Judge Kozinski, dissented from the denial of rehearing.  Today's opinion is here.

The point that interests me is that Judge O'Scannlain noted that the Ninth Circuit, in a previous unpublished opinion, had held that the Crawford rule was not retroactive.  Hiracheta v. Att’y Gen’l, 105 Fed. Appx. 937 (9th Cir. 2004) (unpublished memorandum disposition).  I don't know how Judge O'Scannlain feels about it, but I know that Judge Kozinski has been among the most vocal opponents of recent suggestions that parties (and judges) should be able to cite unpublished opinions as precedent.  If that were the rule in the Ninth Circuit, the controlling precedent on the retroactivity of Crawford would be just what Judge Kozinski wants it to be.  But alas for him, he can't cite Hiracheta as precedent, so the contrary ruling in Bockting is now the controlling authority in the Ninth Circuit.  (Perhaps not for long, since the case seems like a good candidate for Supreme Court reversal, based on the several reasons given in today's dissenting opinion by Judge O'Scannlain. 

This small irony will probably do nothing to change Judge Kozinski's mind, but to my mind, it is further evidence that the rule against citing unpublished opinions is a bad one.

Comments

[Ed Trompke]

Charlie, I agree that the rule against citing unpublished opinions opens the door to inconsistent opinions and lack of respect for the rule of stare decisis. The rule had a purpose when the only source of opinions was paper books, and only larger firms (or litigious smaller firms) had access to unpublished opinions. Given the almost unlimited storage capacity of, and search power in electronic and optical storage media, courts should publicly explain when they announce new rules of law, or when they announce exceptions to established rules. Anything less can diminish the integrity of the courts in the eyes of a sometimes cynical and suspicious public.

Judge Kozinski appears to be a stickler for consistency. His position on this issue seems out of place.

It is interesting that the court was able to cite the unpublished opinion "not as precedent, of course, but because a conflict with a previously issued memorandum disposition is a factor weighing in favor of a rehearing en banc." Will the Supreme Court weigh in on this practice? There was a fair amount of discussion about in a few years ago. Has momentum fallen off, or is there no reason for the court to address it?