Bullet Points - Overview

Overview

BACKGROUND

From time immemorial, the test of fair judgment has been the willingness of a court to apply the same rules consistently.

Our legal system is based on the principle that each of us is allowed our day in court. Secret opinions destroy this principle because our day in court is no longer open.

Selected publication policies of the courts imply that every court of appeal opinion is presumptively unworthy of publication, unless such opinion meets an arbitrary standard that it (1) establishes a new rule of law or alters or modifies an existing rule, 2) involves a legal issue of continuing public interest, or (3) criticizes existing law.

PUBLICATION PROCEDURES HAVE BEEN CHANGED UNILATERALLY

The transition to a policy that comes close to uniform non-publication has been so gradual that very few lawyers, let alone members of the general public, have any idea that this destruction of the appellate system of law has taken place.

The movement toward limited publication is usually traced back to the 1971 Annual Report by the Federal Judicial Center.

Only a third of federal courts' opinions are now published.

In 1997, 93 percent of the opinions and handed down by California appellate justices were unpublished.

Changes in reporting procedures have been put in place throughout the United States unilaterally, only in the last three decades, without any public or legislative input.

PUBLICATION IS ESSENTIAL TO A LEGAL SYSTEM BASED ON PRECEDENT

The notion and that rulings that are inconsistent with precedent should not be published goes against a fundamental reality: decisions that are inconsistent with the weight of precedent are, by definition, law-making.

The weight of precedent on a point of law hardens it, making it more difficult to overturn. The sheer number of affirmations allow attorneys to rely on the stability of a doctrine with greater confidence.

Put a different way: a court may ignore one precedent but rarely a dozen.

Later cases help flesh out a precedent, and help to make it more understandable.

The sheer accumulation of a number of seemingly routine decisions on a particular point of law may suggest to the courts, legal practitioners, scholars, the legislature, or the public that problems exist in this area. This may set in motion reform.

Publication furthers an important institutional goal: maintaining the appearance that justice has been done. Publication is a signal to litigants and observers that court has nothing tied, that the quality of its work in a case is open for public inspection.

CITIZENS IN A DEMOCRACY ARE ENTITLED TO CONSISTENT TREATMENT FROM THE COURTS

The federal courts are not works of art to be protected from the profane and the trivial. Nor are they debating or learned societies that exist to enhance the professional satisfaction of the judges. They are a public resource.
Explanation is fundamental to our system of justice.

The signed the opinion assigns responsibility. The author of a bad opinion cannot behind the shield of anonymity; blame or praise worthiness is there for all to see.

Similarly situated parties are entitled to receive like treatment in the courts. Where there is no assurance that an opinion will be published, no litigant can be certain that his case will be decided by the Court of Appeal in accordance with principles of law followed in similar cases.

If an appeals court unilaterally changes public law by a decision and then marks that opinions "not for publication," it effectively rules that its changes do not apply to all similar circumstances, but instead, apply only to the appellant.

An unreported decision means that judgment may be completely different from one person to another even if the facts are exactly the same. By declaring itself unbound by precedent and uncommitted to the future use of precedent, the court makes law for one person only. This is, de facto, a judicial bill of attainder.

OPERATIONAL REALITIES OF NON-PUBLICATION

Nearly all circuits use staff attorneys or staff law clerks to help screen cases for full or summary appellate procedure. The screening decision inevitably coincides to a great extent with the publication decision. Thus, the reliance upon staff attorneys combined with a predisposition toward non-publication seriously diminishes the responsibility that the judge bears for his decisions.

Because law clerk influence is likely to be the greatest in less important cases, which are not argued and will not be published, diminished quality, once again, will be most prevalent there.

In practice, publication decisions, once made, are usually cast in concrete, and a party seeking reconsideration is perceived as adverse and meets solid resistance in the court.

Selective publication undermines fundamental legal functions by limiting the Supreme Court's ability to correct inconsistent appellate decisions where there is no petition for hearing.

Litigants whose situation is complicated by an unpublished opinion can count on the Supreme Court for relief only in theory. High courts take a few cases, and even fewer that have not been published. For most litigants, then, a court of appeal is the court of last resort.

Non-publication raises the genuine possibility that a subsequent panel, unaware of a prior result, might reach a contrary result, creating a conflict in the law.

If there is only one circuit court opinion on issue, another court might feel justified in reaching a different result. However, in several panels or circuit has spoken on different variations of the issue, it will be the rare court which will take a different path. Thus, more published opinions make the law more stable. And conversely, more unpublished opinions destabilize the law.

Non-publication also creates the possibility that a court may decline to publish an opinion to avoid calling attention to the fact that its opinion conflicts with a prior holding.

Judges appear to be caught in a serious dilemma: if they pay no attention to their unpublished decisions, they risk inconsistency; if they consult those opinions, they appear to be using them is precedent.

No citation rules significantly diminish the possibility of review based upon conflict among the circuits. The very notion of a conflict is theoretically attenuated; can be said, for instance, that conflict exists between two circuit courts that have come to opposite results on a single issue when each one insists that its determination is not precedential?

An attorney seeking a writ of certiorari is unlikely to know of the unpublished law of other circuits and therefore, will be unable to draw the Supreme Court's attention to the existence of a conflict.

Similarly, the fact that unpublished opinions are typically not as thorough or as elaborate as reported opinions makes it more difficult for the Supreme Court to determine exactly what the lower court has done and accept the case for review.

IMPACT OF NON-PUBLICATION INSIDE THE COURTS

Those who choose what opinions to publish may consciously decide to suppress an opinion they know to be significant enough to publish either to escape review by a higher court, to escape criticism for a controversial decision, or even to allow a court to get away with making a decision contrary to prevailing law.

Unpublished opinions inevitably contribute to conflicts of decision. Unpublished opinions may conflict with other unpublished opinions; worse, existing conflicts between unpublished opinions, and prior, published opinions are considerably more difficult to justify.

The refusal to publish undercuts the ability of appellate divisions to cross check on each court's acumen. This further erodes quality-control.

Many unpublished opinions have been found to be dreadful in quality, clearly falling below minimal standards of legal scholarship and consistency.

The poor writing quality or unnecessary brevity of most unpublished opinions makes it difficult to identify examples of inconsistency or suppressed precedent. Lack of publication thus compounds inequitable treatment under the law.

When errors are not brought to public attention via publication, courts may continue to decide low-profile cases wrongly for years.

Inequality of publication rates within appellate divisions in larger states further compounds the essential inequality of the basic practice of nonpublication. In some California appellate divisions, fewer that 3% of cases are published. This raises fundamental questions about whether the court is fulfilling its constitutional duty.

The criteria for publication cannot help but be applied unevenly. Cases that qualify for publication remained unpublished.

Similarly, procedures for requesting publication work unequally and capriciously. Even if the court is inclined to permit publication (an uncommon occurrence) only the parties and institutional litigants have practical access to unpublished opinions, and they frequently do not have an interest in seeking publication.

Depublication rules have been used by the California Supreme Court and by the appellate courts in order to silence criticism of their own rules by lower courts.

OPENNESS

There is no difference between non-publication of judicial decisions and any other instance of unjustified secrecy in government.

The argument that public interest must be distinguished from public curiosity is without value: it reflects a disregard for the people's right and ability to decide for themselves what aspects of their government's activities are worthy of their attention.

There is no such thing as unnecessary public curiosity with regard to the courts: unlike matters of national security or police intelligence, the courts have nothing to hide.

What goes on in the courts is public business and therefore, unpublished appellate opinions -- whether cut-and-dried or not -- which contain any matters that arguably provide insight into the judicial process should be freely citable, and should -- the same as any other acts of government -- been subject to open public scrutiny and discussion.

Wide publication would reduce, if not eliminate, the wasted time, money, and human effort that is expended daily in pursuing, administering, and terminating fruitless appeals, whose points of law already have been decided in prior unpublished opinions.

If a court is not willing to stand by a decision as a valid precedent for all, then the decision should not be made or should be regarded as unenforceable.

The lasting authority of a decision depends largely on the quality of its reasoning, which can be evaluated only by reading the opinion.

CONSTITUTIONAL CONSIDERATIONS

Inefficiency of judicial operations is certainly not a desirable objective; it may, however, be a price worth paying it buys or helps to buy individual liberty.

Inequities in publication consist of concerns over fundamental First Amendment rights of petition for redress of grievances and over equal access to the courts which involve both the procedural and the substantial due process provision.

Inequities in publication also involve the equal protection provision of the Fourteenth Amendment.

Inequities in publication present a challenge to the constitutional strictures that prescribe the duty of adjudication and demand a separation of powers between the legislative and judicial branches of government.

The Supreme Court of United States has held repeatedly that the due process clauses of the fifth and fourteenth amendments to the United States Constitution prohibit a vague law because it is like a secret law to which no one has access.

Many legal doctrines illustrate the importance of the law being knowable and accessible: for example, the void for vagueness doctrine, limitations on retroactive legislation, restrictions on retroactive overruling of judicial decisions, and requirements regarding prison law libraries.

An unpublished appellate decision may create new law de facto, but is unexposed to the scrutiny of the public or the legislature. Moreover, the refusal to publish sends a message that the public in general and other potentially interested parties will never be affected by the law promulgated in this situation.

An ever-growing body of decisional law is invaluable asset and the essence of a stable system that renders consistent judgments. New democracies throughout the world specifically bemoan a lack of such precedents. Totalitarian regimes, by definition, act unilaterally, are bound by no precedents, and are unaccountable.

OPINIONS ARE NECESSARY, EVEN IN "INSIGNIFICANT MATTERS"

It is false to condition non-publication on the assumption that most decisions only serve a dispute-settling function among two parties. Readers can compare and evaluate the majority opinion alongside any concurring or dissenting opinions to determine precisely what the court decided, and how far its decision may extend in future cases.

Opinions facilitate the discovery of conflicts in the law.

Opinions also permit readers to view the law's historical development and trace its impact on the society.

Opinions that create inconsistencies must be considered law-making opinions; by definition, they depart noticeably from the established course of decisions. Such opinion should always be published.

Unpublished opinions, especially ones that cannot be cited, will generally not receive critical commentary from the bench, the bar, scholars, and the public, for the obvious reason that they will go unnoticed. Moreover, there's little incentive to comment upon an opinion that is not "law."

IMPACT ON THE LEGAL SYSTEM IN SOCIETY

Selective publication creates inequality of access to case law by making pertinent and unpublished opinions available largely to institutional and specialized lawyers

Selective publication deprives trial judges, lawyers, litigants, and members of society of guidance.

Selective publication decreases trial court compliance with the law, thus contributing to increased appellate litigation.

The loss of precedent has driven many parties into alternative methods of dispute resolution. Simultaneously, it has made litigation to final judgment after appeal unavoidable because results have become random.

Non-publication guarantees inequity in the legal establishment. It produces two classes of lawyers: the uninitiated ordinary practitioner who keeps up with the advance sheets and knows only what he reads there, and the specialist-insider who collects unpublished opinions in his field as well, and therefore possesses a special insight into the thinking of the intermediate appellate courts.

Widespread uncertainty in the law erodes professional competence and the confidence of lawyers in the quality of their work. This, in turn, feeds misconduct, which is tolerated until it becomes the norm.

Moreover, unequal access to unpublished decisions creates a "grapevine" among appellate judges and their research attorneys, and among attorneys who practice solely in one particular area of the law, whereby earlier unpublished opinions are relied on expressly or implicitly.

Nonpublication subverts one of the most important forces in the development of the law: scholarly commentary. One of the most potent analytical tools in the hands of a legal commentator is an abundance of decisional law from which he can extract trends in the law, based on an assessment of how the rule of law is been judicially articulated, or how it may be operating in application.

Most important of all, selective publication contributes to popular distrust of the courts.

QUESTIONS TO PONDER

How can we have the equal protection of the law if the courts have no institutional memory of the manner in which the laws applied in similar cases?

How can we be certain that our judges correctly and honestly state the law, if their decisions are not put out to the people for criticism?

How can we ask our legislators to correct the law if we cannot know how the law is actually been applied by our courts?

What effect does our right to equal protection of the law have if law can be applied to one person without immediately causing others who would otherwise be affected to complain on that person's behalf when the rule used is illegal, unconstitutional, or unjust?

If experience shows that unpublished rulings truly add nothing to law, why do lawyers and judges continue to research unpublished opinions in preparing their briefs?

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