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Brushing ever so slightly against a roiling debate in the legal community, the 9th U.S. Circuit Court of Appeals on Friday refused to impose sanctions on a lawyer who cited an unpublished opinion in a court brief. Although the judges acknowledge that the court has been less than faithful to its own rules regarding unpublished decisions, they warned lawyers that, with few exceptions, they are not to be cited. “The rule does not permit the citation of an unpublished disposition for the purpose of providing ‘notice’ to the court of the existence or absence of legal precedent,” read the unsigned opinion. Judges Alex Kozinski and Richard Tallman sat on the panel, along with visiting Judge Frank Zapata of the District of Arizona. More striking than the short, two-page decision, however, was Tallman’s even shorter dissent. A newcomer to the court, Tallman wrote simply: “I respectfully dissent.” But whether that means Tallman would allow the citation of unpublished opinions or would have imposed sanctions on the lawyer is unclear. Tallman was away from his office Friday and could not be reached. The 9th Circuit is one of seven circuits that largely ban the citation of unpublished decisions. Last year, the 8th U.S. Circuit Court of Appeals dropped a bombshell in the legal community when it ruled that such decisions are unconstitutional. In the 9th Circuit, citation of unpublished opinions for factual purposes is allowed — for example, to point out to the court that a defendant has already been prosecuted for a crime and should not be subject to double jeopardy. In Sorchini v. City of Covina, 01 C.D.O.S. 3514, Franscell, Strickland, Roberts & Lawrence associate Cindy Lee cited an unpublished case to demonstrate a counter-argument in an excessive-force case — that no court has ever held that police must give warning before unleashing a police dog. Lee reasoned that the unpublished opinion supported that “fact.” The court disagreed. “If precedent were a ‘fact’ for purposes of the exception, then the exception would swallow the rule,” the court wrote. The issue is contentious, and the 9th Circuit recently created new rules allowing the citation of unpublished opinions in motions to publish previously unpublished decisions and in motions to rehear a case en banc, if pointing out intracircuit conflicts. One of the panel members has also been an outspoken defender of unpublished, or memoranda, opinions. Last year, Kozinski co-authored an article in California Lawyer with fellow 9th Circuit Judge Stephen Reinhardt. “Few procedural rules have generated as much controversy as the rule prohibiting citation of [unpublished decisions],” they acknowledged. “If [unpublished decisions] could be cited as precedent, conscientious judges would have to pay much closer attention to their precise wording. Language that might be adequate when applied to a particular case might well be unacceptable to future cases raising different fact patterns,” they wrote. Despite the new rules allowing greater use of unpublished citations in the 9th Circuit, Chief Judge Mary Schroeder recently said few lawyers are taking advantage of them. The court did not sanction Lee. “Counsel represents that she violated the rule because she misunderstood the scope of the exception, and we accept that representation,” the court wrote. “Then again, we may bear part of the responsibility by issuing unpublished decisions that violate [court rules], and so tempt lawyers to cite them as precedent.” In a footnote citing Bush v. Gore, 121 S. Ct. 525, the court said that “this excuse is valid only in this case.”

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