I was wrong about previous 9th Circuit rules for citation of published district court opinions
Circuit Rule 36-2 -- Criteria for Publication (current rule -- not repealed)
A written opinion, reasoned disposition shall be designated as an OPINION only if it:
(a) Establishes, alters, modifies or clarifies a rule of law, or
- - - - - -
(e) -- is a disposition of a case in which there is a published opinion by a lower court or administrative agency, unless the panel determines that publication is unnecessary for clarifying the panel's disposition of the case, or
Repealed Circuit Rule 36-3 -- Other dispositions (superseded by national FRAP Rule 32.1)
Any disposition that is not an opinion or an order designated for publication under Circuit Rule 36-5 shall not be regarded as precedent and shall not be cited to or by this Court or any district court of the Ninth Circuit, either in briefs, oral argument, opinions, memoranda, or orders, except when relevant under the doctrines of the law of the case, res judicata, or collateral estoppel.
Circuit Rule 36-2 (e) applies to Kitzmiller because Kitzmiller is a published opinion by a lower court -- e.g., a district court. The wording of Circuit Rule 36-2 (e) is confusing, but I think it says that a 9th Circuit appeals court panel can adopt a published lower court opinion verbatim as an official 9th Circuit opinion if the panel thinks it is not necessary to add a clarification or modifications. However, in order for the panel to adopt the published lower court opinion, that opinion must first be cited, which couldn't be done if the opinion were not citable (per Circuit Rule 36-3) because it is not yet an official 9th Circuit opinion. So the only reasonable conclusion is that published district court opinions have always been citable in the 9th Circuit, so I was wrong in my previous belief that such opinions were not citable in the 9th circuit.
BTW, in my first 9th Circuit lawsuit against the unconstitutional California "smog impact fee," defendant California attached an entire unpublished district-court opinion to the state's first reply brief, and that was definitely in violation of the old circuit rule prohibiting citation of unpublished opinions!
Labels: Kitzmiller v. Dover (new #2)