Sunday, November 4, 2007

Citation to unpublished cases

When I was a law clerk at the Supreme Court, the rule on citations to unpublished case law was simple: you can't do it. See Rule 51 of the Commonwealth Rules of Appellate Procedure. Now that I am out in private practice, I'm seeing a fair number of citations in Superior Court briefs to unpublished District Court cases, especially in the Ninth Circuit. I have also seen unpublished District Court cases cited by the Superior Court. In the CNMI, as a new jurisdiction, the law is still evolving, and there are certain types of cases which aren't getting published in the US that are helpful to us here: especially, I find, cases with pro se litigants. I figured that if I am a bit confused, I am not alone. So I took a look at our rules. From what I can see, we have the Rules of Practice, which address citation to unpublished opinions of the Superior Court and Ninth Circuit. See Rule 29. When there is a conflict with the Rules of Practice, the Rules of Civil Procedure govern, as they do here. See Schedule on Transitional Matters, Section 1, Rules of Civil Procedure.

Rule 83.2 of the Civil Rules deals with citation to authority. The Superior Court requires the practitioner to provide the court with unavailable authority, but this is not specifically defined. Any authority not available in the Commonwealth Law Library, such as a treatise or law review article, must be attached in a length that is enough to provide a full understanding of the author's opinion. At this point, I believe the law library is out of date by possibly 10 years. This is because the Court decided a long time ago to put its resources on the side of progressiveness, and began subscribing to electronic research services. It seems to me that this rule is expansive on purpose. The Court currently subscribes to Westlaw, and so I would say that any citation to authority which is available on Westlaw would be equivalent to the law library. Anything else would need to be attached to the back of the papers. Also in the rule is that the Superior Court doesn't want to see secondary authority cited (such as Am.Jur.) if there is primary authority available . But if you have to cite a secondary source, it is permissible to cite with a parenthetical explaining why primary wasn't available.

Similarly, the District Court's Local Rules say that all citations should be in a generally recognized form, and any authority not available in the court's law library must be provided to the court. See LR 5.2 (c) and (d). It appears that the District Court is also open to reviewing citations of unpublished decisions as long as they are made available to the Court. In addition, there are courts which have argued that Ninth Circuit Rule 36-3 does not bar citations to unpublished decisions from other circuits. See Alvarenga-Villalobos v. Reno, 133 F.Supp.2d 1164 (N.D.Cal.2000); In re Antablian, 140 B.R. 534 (C.D.Cal.1992). That being said, an unpublished decision cannot be cited as precedent but as persuasive authority at most. Ninth Cir. R. 36-3; Schmier v. United States Court of Appeals for the Ninth Circuit, 279 F.3d 817, 825 (9th Cir.2002); Hart v. Massanari, 266 F.3d 1155, 1180 (9th Cir.2001). As of January 1, 2007, the Ninth Circuit has changed its rules to allow citation to unpublished dispositions and orders of the courts of its own circuit. See Rule 36-3(b)—but older unpublished Ninth Circuit opinions are still off limits in the Ninth Circuit.