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Wednesday, July 13, 2005

Ind. Decisions: More on the Court of Appeals' "not-for-publication" opinions

I've written a number of times in the past about this, most recently on April 30th of this year, in one of my last columns, when I included among my "disappointments":

The Unavailability of Court of Appeals Not-for-Publication Decisions

Two concepts here need to be distinguished: (1) unpublished, and (2) non-precedential.

In the federal court system, "unpublished" no longer means unindexed and generally unavailable to the public. The question remaining in the federal system is whether the rules should be changed to allow these decisions to be cited -- i.e. to have precedential value.

In Indiana, the Court of Appeals panel issuing an opinion may designate it "not-for-publication." Because this large body of decisions is both unindexed and generally unavailable, the question of whether or not a particular NFP decision should have precedential value is pretty much a non-issue -- no one outside the court system and the parties to the case generally knows about it (although paper copies of the opinion are available if one asks for the case by name).

I can only estimate how many of the opinions issued by the Court of Appeals are NFP. I'd venture 2 out of 5. I feel strongly, as I've written several times in the past, that this workproduct of the court should be made available to the public, even if it may not be cited.

I am resisting the temptation to go on at length, but refer those interested to this ILB entry from Feb. 21, 2004. Scroll down to the paragraph that begins: "As reported by Howard Bashman's How Appealing ..." [More: See also this May 19, 2003 ILB entry.]

Howard Bashman of How Appealing has been on this issue from the beginning. He has written about the federal system, where the issue is not the unavailability of "unpublished" opinions -- they are available. This issue in the federal system is whether these opinions should be precedential.

At the state court level, it turns out that Bashman's home state, Pennsylvania, has a similar situation to that in Indiana. I highly recommend to you Howard Bashman's article, just posted today, but dated June 13th, and titled: "In The Quest For Access To Non–Precedential Decisions, Don't Overlook The Possibility Of A Legislative Solution." The article begins:

The May 23, 2005 issue of Pennsylvania Law Weekly, a sister publication of The Legal Intelligencer, contained a front page article headlined "A Thirst for Case Law: Practitioners favor posting unpublished memorandum decisions on court Web sites." The article noted that while attorneys and law professors generally seem to favor online access to the non–precedential rulings of the Superior Court of Pennsylvania, that Court's judges appear to remain strongly opposed to such access.

Of course, the opinions that the Superior Court of Pennsylvania issues -- whether or not designated as precedential -- are governmental public records that are available for review at the court's headquarters. But at present, as in the past, non–precedential Pennsylvania Superior Court decisions are not readily available for review because the court does not post them on the internet nor are the decisions available on Westlaw or Lexis. By contrast, the Superior Court does make its precedential opinions available on the internet and over Westlaw and Lexis.

The debate over non–precedential appellate rulings involves some difficult questions, chief among them whether appellate courts should be allowed to designate any of their rulings as non–precedential and whether appellate courts act properly in prohibiting citation to non–precedential rulings. By comparison, the issue of public access to non–precedential opinions is much less controversial. [my emphasis]

In Indiana, as noted earlier, opinions designated by the Court of Appeals panel as "not-for-publication" are neither generally available nor citeable. But they are public documents. Why should they not be made available online, along with the other rulings of the Court of Appeals?

Posted by Marcia Oddi on July 13, 2005 06:58 PM
Posted to Ind. App.Ct. Decisions