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Friday, October 21, 2005

Ind. Decisions - More on Court of Appeals Not for Publication (NFP) opinions

Lafayette attorney Doug Masson is blogging from the ISBA annual conference this week. He attended the roundtable on appellate practice and one of his comments today in Masson's Blog is:

I couldn't help but think of Marcia Oddi and the Indiana Law Blog when the discussion came to unpublished opinions. Judge Baker indicated that when he got started, the thinking behind not publishing some opinions was that many of them are redundant and not publishing them was a way of saving attorneys from having to buy a lot more books and having to wade through a lot more case law without the extra volume particularly advancing the law in any significant way. Nowadays, the extra paper isn't really a concern, but the extra work for little pay-off might still be a valid concern. My take is that it would be nice to have them easily available online -- give us outlanders some parity with Indy attorneys who can drop by the Clerk's office. Aside from that, I think I'd be o.k. with unpublished decisions as something you could cite to the court as persuasive, but non-precedential authority. This might not exactly square with my theoretical notions about the common law, but as a practical matter, it might be a good way to avoid responsbility for a mass of mostly redundant case law.
Yes indeed, the ILB has written a number of entries urging the accessibilty and citability of NFP Indiana Court of Appeals decisions, which in the past have constituted as much as 80% [see correction below] of the work product of the Court of Appeals. As of 8/19/05, the ILB began posting, with the agreement of the Office of the Clerk of the Indiana Courts, the weekly list of the Court's NFP opinions. One thing this list of the week's NFP opinions makes clear is the enormous amount of work the Court of Appeals judges produce. These NFP opinions are not brief notations, as on the federal level, but full-blown opinions.

I refer readers to the 7/13/05 ILB post on the unavailability of Indiana Court of Appeals NFP opinions (note that the estimate I made then of the number of NFP opinions was way low), and to the 9/20/o5 ILB entry on the decision of the federal Judicial Conference to support citing unpublished opinions.

In 1997, the Honorable Judge Robert H. Staton and Gina M. Hicklin wrote an Indiana Law Review article titled "The History of the Court of Appeals of Indiana." Near the end of the 29-page article, commenting on the predecessor to current Indiana Appellate Rule 65, Staton and Hicklin write:

The 1976 rule, which is the current rule, allows the court of appeals to issue written memorandum decisions which will not be published or apply to any other case than the one appealed. The rule requires a written published opinion if the case: 1) establishes, alters, modifies or clarifies a rule of law; 2) criticizes existing law; or 3) involves a legal or factual issue of unique interest or substantial public importance. In contrast, a memorandum decision is to be used in routine cases where precedent has been set. However, a dissent from a memorandum decision may be expressed by a published opinion.

Whether a party may cite an unpublished decision as authority varies from jurisdiction to jurisdiction. In Indiana, memorandum decisions cannot be regarded as precedent nor cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel or the law of the case. There is a huge debate going on across the country as to whether all opinions, published officially or not, should be citable in a court. There are many reasons why unpublished decisions are disfavored. A primary argument is that their content is often not of acceptable quality. The decisions generally do not disclose rationale or present sufficient legal analysis. In addition, there are valid concerns regarding judicial overproduction which have persisted throughout the twentieth century.

On the other hand, there is a very vocal segment of the practicing bar which contends that unpublished opinions are damaging to the legal system. There is a concern that courts are deliberately burying their work product and suppressing precedent. They believe that nonpublication is “nothing less than censorship . . . shaping common law.” However, the vast majority of federal and state courts place severe limitations on the use of unpublished decisions and orders as legal precedent. Nevertheless, there are other members of the bar who argue that the trend may be toward more liberal rules on citing unpublished decisions and allowing greater access to all opinions of the court.

The debate and controversy will likely continue. For now, the rule remains in Indiana that the court of appeals may issue written but unpublished, memorandum decisions to decide routine cases where precedent has already been established.

Footnotes have been omitted. However, this one is of particular interest:
216. In Indiana, nonpublished memorandum decisions of the Indiana Court of Appeals can be accessed through a computer bulletin board system (BBS). The BBS retains memorandum decisions for sixty days. Any interested party with appropriate equipment may access the system which is available twenty-four hours a day, seven days a week. For instructions on using the BBS, contact the Clerk of the Indiana Supreme Court and the Indiana Court of Appeals.
Thus, in 1997, NFP opinions could be accessed via a dial-up system; I remember using it. This changed, for some reason, with the shift to the Internet.
____
Note: The correct figure, based on the Annual Reports of the Court of Appeals from 2000-2004, should be about 73% classified as "NFP", rather than 80%.

Posted by Marcia Oddi on October 21, 2005 10:15 AM
Posted to Ind. App.Ct. Decisions