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The policy-making body of the federal judiciary last week endorsed a sweeping rule change that will allow lawyers to cite unpublished opinions in federal appeals courts nationwide beginning in 2007. The Judicial Conference of the United States also voted not to take a position on the controversial question of whether the sprawling 9th U.S. Circuit Court of Appeals should be split in two. Members did, however, agree that they would oppose any circuit-splitting bill that does not provide adequate funding for the costs involved. The issue has been debated by Congress for years without resolution. The citation rule change, if ratified by the Supreme Court and untouched by Congress, would end a practice that brought charges of a hidden, unaccountable system of justice against some of the nation’s largest and most important appellate courts. The 2d, 7th, 9th and federal circuits ban citation of unpublished opinions outright, while six other circuits discourage it. ‘Great deal of debate’ Passage of the resolution by voice vote followed “a great deal of debate,” said 5th Circuit Chief Judge Carolyn Dineen King, chair of the executive committee, at a post-meeting news conference. She said passage was eased by an amendment introduced at the meeting that would make the change prospective only, meaning that lawyers will be able to cite only those unpublished opinions issued after Jan. 1, 2007. King also stressed that individual circuit courts will be able to set their own rules about the precedential value unpublished opinions can be given. The conference vote is something of a bouquet tossed to its likely next chairman, chief justice nominee John Roberts Jr. As a private practitioner and then as a judge on the U.S. Circuit Court for the District of Columbia, Roberts served on the advisory committee that recommended the new rule, 32.1. “A lawyer ought to be able to tell a court what it has done,” Roberts said at the April 2004 meeting at which the advisory committee first endorsed the rule. At his Senate Judiciary Committee confirmation hearings, Roberts said he was in line to chair the advisory committee in October, which is now unlikely, since as chief justice he would chair the entire Judicial Conference. The conference’s standing committee on rules of practice and procedure approved the citation rule in June of this year. “This is one of the things John Roberts took a personal interest in,” said Mark Levy, who heads the appellate advocacy group at Atlanta’s Kilpatrick Stockton and was another member of the advisory committee along with Roberts. “It will be a terrific change that will make the process fairer and more transparent.” Michael Schmier of the California-based group Committee for the Rule of Law said, “We have worked for 10 years to see this day. We are gratified that the mechanism by which the rule of law is imposed upon the judiciary is restored.” Schmier said that the federal rule change could have a ripple effect on California and other states that have their own noncitation rules.

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