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Saturday, December 09, 2006

Courts - Status report on the availability and citation of not-for-publication opinions, at both the state and federal levels

The ILB has written about NFP opinions many times before. And since the ILB began in 2003, the landscape has shifted considerably.

I wrote this April 30, 2005:

Two concepts here need to be distinguished: (1) unpublished, and (2) non-precedential.

In the federal court system, "unpublished" no longer means unindexed and generally unavailable to the public.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).

And on July 13, 2005: "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?"

This April 12, 2006 ILB entry reports: "U.S. Supreme Court Votes to Allow Citation to Unpublished Opinions in Federal Courts," quoting from Law.com:

The Supreme Court on Wednesday adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The justices' vote represents a major milestone in the long-running debate over unpublished opinions, the sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts. Currently, four federal circuits ban the citation of unpublished opinions outright, while six others discourage it.
Here are some of my comments from that entry:
The ILB has had numerous entries over the past several years on the use of not-for-publication opinions by the our state Court of Appeals. (Ironically one was earlier this afternoon.)

The difference is that in the federal court system, "unpublished" decisions are in fact readily accessible online, but as Mauro's story points out, "The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it."

At the Indiana state court level, Appellate Rule 65 allows Court of Appeals judges to designate opinions as not-for-publication if they meet the Rule's criteria. Rule 65(D) provides:

a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.
In addition, the Court does not publish the opinions on its website and they are not posted by the commercial legal services. The only way to obtain a not-for-publication opinion is from the Clerk of the Courts -- if you know its name.

It became easier to know the names last fall when the Clerk agreed to provide its list of NFP decisions to the ILB at the end of each week. The first such list was posted August 19, 2005. (Of course, this list is also available via the commercial services.) The lists show that over 70% of the Court of Appeals opinions are unpublished.

Again, on July 27, 2006:
The ILB has posted numerous entries over the past few years arguing that the rationale behind the "NFP" designation has passed. The "NFP" designation of Indiana Court of Appeals opinions means two things: (1) the ruling is neither posted online nor published; (2) the opinion does not have precedential value (except in narrow circumstances).

One reason behind the rule, the cost of printing, of course no longer exists -- it has vanished with digitization. Another rationale I've heard, and this goes to the precedential aspect, is that this is an (some might say "paternalistic") effort on the part of the court to relieve attorneys of the burden of unnecessary reading. That too, however, seems grounded in an earlier time, without the research technology of today's world.

At least 3 out of 4 Court of Appeals opinions issued are designated NFP. 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. We are only privy to at most 25% of the work product of the Court of Appeals judges. This makes it more difficult for us when the time comes to "judge the judges."

Opinions designated by the Court of Appeals panel as "not-for-publication" currently 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?

A step forward. On August 23, 2006, the ILB was able to announce, via a communication from Chief Judge Kirsch of the Court of Appeals, that the Court would begin immediately posting its NFP opinions online. Never one to miss an opportunity, I quickly asked the Judge: "This is step one. Any thoughts as to step two -- eliminating the NFP designation altogether?" His prompt and thoughtful response:
As to whether the posting of NFP opinions will be a first step toward the designation of all opinions as for publication, we will have to see.

The issue is which has been much debated, and the citability of federal NFP opinions will be sure to continue the debate. By having our NFP decisions more readily available, the bar and others interested in the issue will have more understanding of what is at hand. Our work has always been a matter of public record, but as you have noted, accessing that record has been difficult at times, especially for people without ready access to the State House. The posting of NFP decisions should help significantly in this regard.

I have wavered over the years about the advisability of designating every opinion as for publication. On the one hand, I see the tremendous value of transparency. On the other, my concern about designating all opinions "for publication" has nothing to do with the publication of the opinions and everything to do with their citability. You note that this morning we handed down fifteen NFP decisions. We hand down, on average, more than thirty NFP decisions and more than fifteen for publication opinions per week. If all of the NFP decisions were for publication and, thus, citable, the volume of law in this state would increase by a multiple of three. Everyone doing legal research would be affected by this increase. It would drive up the cost of legal research significantly.

Ultimately, I think the issue will turn upon whether the benefits of transparency justify the increased cost. I look forward to the debate.

Back to the federal rules. The changes to the federal rules mentioned above became final December 1st, 2006 - see this Dec. 2nd ILB entry quoting the official transmittal letter:
Proposed new Rules 32.1 permits the citation in briefs of opinions, orders, or other judicial dispositions that have been designated as "not for publication," "non-precedential," or the like and supersedes limitations imposed on such citation by circuit rules. New Rule 32.1 takes no position on whether unpublished opinions should have precedential value, leaving that issues for the circuits to decide.
Howard Bashman of How Appealing, who has written extensively on the federal rules citability issue, wrote Nov. 27th:
FRAP 32.1, permitting citation to unpublished and non-precedential federal appellate court rulings, stands as the most controversial amendment to the Federal Rules of Appellate Procedure of all time. Nevertheless, this new rule is guaranteed to arrive on the scene not with a bang but with a whimper. That's because, although FRAP 32.1 officially takes effect on Dec. 1, the rule will only apply to unpublished and non-precedential opinions issued on or after Jan. 1, 2007. As a result, the impact of FRAP 32.1 will probably be imperceptible for many months in those circuits that, before the new rule's advent, had prohibited any citation to their own unpublished and non-precedential decisions. And because non-precedential opinions will continue to lack precedential value even after FRAP 32.1 takes effect, savvy advocates will only cite to unpublished or non-precedential rulings in the absence of any equally relevant published and precedential decisions.

After advocates begin citing to unpublished or non-precedential opinions in reliance on FRAP 32.1, there will still be additional delay until the cases are either argued or submitted on the briefs for decision. Thus, it could be rather late in 2007 before we first begin to see how those federal appellate courts that had previously prohibited any citation to their own unpublished and non-precedential rulings are reacting to appellate briefs that permissibly cite to such decisions in reliance on FRAP 32.1.

One might thiink this would be the last word for a while on the unpublished or non-precedential opinion citability issue. But not so, at least at the state level.

Kentucky. Last week (Dec. 7th), Kentucky attorney Diana Skaggs wrote in her law blog:

It’s official: effective January 1, 2007, unpublished Appellate Opinions rendered after January 1, 2003 may be cited for consideration if there is no published opinion on point.

Section (4)(c) of CR 76.28 will read:

(c) Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003 may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.
As a member of the Kentucky Supreme Court's Civil Rules Committee, I suggested making the rule prospective so all we thought we knew about the law wouldn't have to be revisited, all our treatises wouldn't have to be updated with old unpublished cases, and we wouldn't have to do legal research on every issue even if we think we know the law just to see whether in the past there was some old unpublished case. I don't know why they settled on applying the law only to 2003 and later opinions, but I am glad it was limited to some extent and I am also pleased it applies only when there is not published authority on point.
Arizona. Then yesterday (Dec. 8), thanks to a link from Howard Bashman, I saw this story in the Arizona Daily Star. If you have read this far, you may have a feeling of deja vu in reading the Arizona story:
PHOENIX — Last month, the state Court of Appeals issued a 54-page ruling on the controversial issue of whether state lawmakers are constitutionally required to provide more cash to certain public schools.

To the public affected, however, the decision was essentially invisible because the three judges issued it as a "memorandum decision."

That designation means the legal reasoning and conclusions reached cannot be cited as precedent in future cases. It also means the rulings are not available to the public on the court's Web site.
The only way to find out that the judges ruled at all is to go to the court's office and manually go through those files.

And there are a lot of them. About nine out of every 10 appellate-court rulings are designated as memo decisions.

Now lawyers are moving on two fronts to force the court to make more of its rulings accessible to the public.

One proposal by a subcommittee of the State Bar of Arizona would require these memorandum decisions be more publicly available. Now, a printed copy is filed with the clerk's office. But, unlike formal "published" opinions, they are not available on the court's Web site.

More significant, the proposal also would allow those memo decisions to be cited as precedent in other cases when there is no published decision on point.

"The Court of Appeals is a public entity; it's our government in action," said attorney Thomas L. Hudson, who supports that plan. "As a general principle, shedding light on the way government functions is important in a democracy."

A more far-reaching proposal by attorney Richard Coffinger would have all decisions be formally published unless the judges certify there is a specific reason not to.

But the ideas, which would have to be approved by the Arizona Supreme Court, are getting some opposition.

Appellate Judge Donn Kessler said there is one big reason he and his colleagues decide not to publish a ruling.

"A good percentage of the briefs we get are either extremely poorly written, or an issue is not properly presented, or the record is not there," he said. Kessler said it would be wrong to put out a published decision, which then automatically could be cited as precedent, in those kinds of cases.

Ruth McGregor, chief justice of the Arizona Supreme Court, also is cool to the idea. McGregor, who was an appellate judge before being named to the state's high court, conceded there's something else at issue. Judges who are faced with 120 to 150 rulings a year just don't take the same amount of time in their rulings when they know they won't be published.

"You only have so many hours each day and weekend and night," she said. "There's only a certain amount of time and care you can take in decisions," McGregor said. "When they're unpublished, it allows a little more freedom. So long as you get to the right result you don't have to be quite so careful about the language that you're using."

But Coffinger is particularly critical when the appellate judges issue memo decisions as they overrule trial court rulings. He said their general lack of public availability means voters, who decide whether to retain both the trial judges in Pima and Maricopa counties as well as the appellate judges, don't get a full opportunity to evaluate the performance of those judges.

Hudson's alternative approach to make these memo decisions more public would not change the rule of what is or is not published. But it would let attorneys arguing a case cite those decisions if it helped their case, something now prohibited.

Hudson said it is wrong to let the judges who write a ruling decide for themselves when it can be cited. He said that effectively amounts to letting the appellate judges "hide" a decision by designating it a memorandum ruling.

One last thought, for now. I was struck by this statement by Scott E. Gant: "Whether an opinion of an appellate court has or lacks precedential value should be a function of what the opinion contains rather than the label attached to it." From the abstract to Gant's article in the Boston College Law Review:
This article argues the notion that judges can and should determine an opinion's precedential value at the time they issue it is based upon a flawed and outdated view of how the law develops. Whether an opinion has made "new law" or is otherwise significant is a judgment best made with the benefit of time, and with input from lawyers, litigants, and other judges.
Howard Bashman of How Appealing is to be thanked (yet again) for spotting this article. (For more, including links, start at this ILB entry from Oct 5th.)

Posted by Marcia Oddi on December 9, 2006 09:00 PM
Posted to Courts in general