The Dog that did not Bark: No-Citation Rules, Judicial Conference Rulemaking, and Federal Public Defenders

In what has been called the most controversial issue in the history of the judicial rulemaking process, a committee of the United States Judicial Conference has proposed a new Federal Rule of Appellate Procedure, FRAP 32.1, which would require all federal circuit courts of appeals to permit citation of their unpublished opinions (or orders). The proposed rule - scheduled for action by the Judicial Conference on September 20, 2005 - has produced a rare outpouring of 513 public comments. These come overwhelmingly from lawyers and judges in the Ninth Circuit; they are overwhelmingly opposed to Rule 32.1; and they overwhelmingly predict dire results if the rule is adopted. The proposed rule offers a natural experiment. The rule would require four federal circuits, the Second, Seventh, Ninth, and Federal, to do what the other nine circuits already do: let their unpublished opinions be cited. It should be possible, therefore, to examine the situation in the nine circuits where citation is allowed - the citable circuits - to see whether harmful effects have in fact come to pass when citation is permitted. This paper examines for that purpose two groups in citable circuits from whom one would have expected to hear of such adverse effects if they existed: (a) federal circuit judges, and (b) attorneys in federal public defender offices (federal public defenders). Judging by the comments filed (or not filed) in the FRAP 32.1 proceeding by federal circuit judges in the citable circuits, this paper concludes that those judges do not find that allowing citation produces adverse effects. The dog did not bark. With regard to federal public defenders, this paper first examines, as a backdrop, the comments filed in the FRAP 32.1 proceeding by public defenders in the Ninth Circuit. There were 62 such comments, all opposed to the rule and predicting harmful effects if it was adopted - but all unable to go beyond prediction, since the feared citation is prohibited in the Ninth Circuit. Nor could I look to comments filed on FRAP 32.1 by public defenders from the citable circuits, for public defenders outside the Ninth Circuit filed very few comments. I therefore sought the views of federal defenders in citable circuits through a different means, telephone interviews. I conducted thirty-six interviews with federal public defenders, spread through the nine citable circuits. Summaries of those interviews - the heart of this paper - show that federal public defenders in the citable circuits largely favor citability, and that they largely disagree with the views of their public-defender colleagues in the Ninth Circuit. The FRAP 32.1 proceeding also raises questions about notice-and-comment rulemaking as applied to rulemaking for courts. These questions include the extent to which the 513 comments on FRAP 32.1 were produced by organized lobbying efforts and employer compulsion, rather than sua sponte participation - and the extent to which such efforts are appropriate on the part of federal judges. In addition, the evidence suggests that views such as those of the 62 Ninth Circuit public defenders may represent, in some cases, not the views of the attorneys themselves, but rather the office policies laid down by their office chiefs. The paper finally seeks to put this study into context with studies conducted within the past year on similar subjects, using different methodologies, by the Federal Judicial Center and the Administrative Office of the Courts.