Recent proposed amendments regarding publication of Court of Appeals opinions and citation of unpublished opinions have sparked a lot of discussion among Michigan lawyers—at the water cooler, on SBM section listserves, and in the ICLE Community. The proposed amendments to MCR 7.215(A) and (B) would clarify the term “unpublished” and revise the standards by which an opinion is published. Amended MCR 7.215(C) would state that citation to unpublished opinions is generally “disfavored” and would require a party citing such an opinion to "explain why existing published authority is insufficient to resolve the issue." Justice Markman wrote a partial concurrence and partial dissent, stating that he would support publication of the proposed amendments to subsections (A) and (B), but not the amendments to (C).
The majority of Michigan lawyers speaking out on the issue side with Justice Markman. In the ICLE Community and in comments on the Michigan Supreme Court’s website, arguments against the amendments in (C) include:
- There aren’t enough published opinions, particularly in certain areas of law (like family law). Putting more limitations on the citation of unpublished opinions as persuasive authority would hamstring advocates.
- These amendments go against the national trend of allowing citation of unpublished opinions.
- If unpublished opinions provide no guidance or value for lawyers, why are they made available—or even written—at all?
- The old rationale for limiting citation of unpublished opinions based on inaccessibility is no longer relevant, as online legal research vendors make unpublished opinions just as available.
- Adding the word “disfavored” to the rule is unnecessarily confusing. The existing rule is sufficient to dissuade citation of unpublished opinions. The amendments might give the false impression that citation of unpublished opinions is flatly prohibited and discourage lawyers from citing cases appropriately.
- The amendments make no allowance for “meta-analysis” of the courts’ unpublished decisions to reveal patterns in the results based on certain relevant factors.
In defense of the amendments, some argue:
- The Court of Appeals hears a huge number of cases, and the MSC does not have the resources to ensure total continuity among them.
- The amendments reflect an effort to curb some attorneys’ inappropriate and burdensome citation to unpublished opinions.
- Unpublished opinions aren’t written with the same attention to detail and legal reasoning, and further limitation on their citation is desirable.
Inevitably, the proposed amendments and the comments they’ve generated bring us face to face with the broader issue of why we have nonbinding unpublished opinions at all. In my perfect world, all opinions would be published and binding. As Justice Markman states, the COA is “an institution of equally legitimate judicial standing [as the MSC] and one equally entrusted with responsibility for the exercise of the ‘judicial power’ of this state,” and all of its opinions, unpublished or not, constitute “real” law. Shouldn’t we all be bound by “real” law? (Plus, I remember doing research for briefs and finding the perfect case—similar facts, on-point ruling—only to find the dreaded “UNPUBLISHED” header looming at the top of the page (er, computer screen). And it’s definitely a buzzkill.) That said, I don’t think publishing all COA opinions is realistic for the courts or for practitioners. Doing so would just be replacing one set of problems with a different set.
Even if there’s no panacea, allowing appropriate citation of unpublished opinions as persuasive authority is one of the only ways we can strive for fairness in the system we do have. As former U.S. Supreme Court Justice Blackmun wrote in a dissent mentioned in a recent NY Times article, “Nonpublication must not be a convenient means to prevent review.” We cannot publish everything, but we cannot just ignore unpublished opinions either. Clarifying the standards for publication of COA opinions also seems like a step in the right direction. In the end, we have to strive—within our means—to maintain a reliable, comprehensive, and fair body of Michigan law.
The Michigan Supreme Court accepts comments on all proposed rules and rule amendments via email at ADMcomments@courts.mi.gov. The comment period for the proposed amendment to MCR 7.215 closes on June 1, 2015, and you can read the existing comments here.