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Saturday, January 06, 2007

Courts - Indiana appeals court now a leader in making all rulings accessible to public

Howard Bashman's commentary for Law.com this week is headlined "It's Time to Abolish 'Invisible' State Appellate Court Rulings." His column begins:

Our government, to the greatest extent practicable, should conduct its business in the open. That principle is central to the proper operation of a democracy. Yet in many state court systems, one particular class of public documents -- non-precedential appellate court rulings -- remain all but inaccessible to the general public, locked away in court filing cabinets but unavailable over the Internet, on Lexis or on Westlaw.

The time has come for state appellate courts to abolish their practice of hiding from public view the vast bulk of their rulings. In the not-too-distant past, some federal appellate courts were likewise guilty of this reprehensible practice of hiding from public view their non-precedential rulings. But then, the United States Congress passed into law the E-Government Act of 2002.

That law required all federal appellate courts to make available over the Internet not only their precedential opinions, but also their non-precedential ones. As a result, anyone with online access can now browse all federal appellate court rulings that issue each day.

Unfortunately, at the state court level, progress toward making non-precedential appellate court rulings more readily available has varied from slow to non-existent.

I strongly agree with everything Howard says in his column, with one exception. There has been progress, at least in Indiana.

Howard has forgotten that since mid-August of this year, our Indiana Court of Appeals Not-for-Publication opinions have been posted on the Indiana Courts website, alongside the for-publication opinions. (For background see this Dec. 9, 2006 ILB entry, which BTW was referenced in How Appealing and, more specifically, see this Aug. 23rd ILB entry including Chief Judge James S. Kirsch's e-mail to me announcing the policy change.)

Also, this paragraph by Howard may be true in other jurisdictions, but has never been the case in Indiana:

Judges are creatures of habit, and appellate courts' longstanding practice in general is to issue non-precedential opinions only to the parties and the trial court judge. Non-precedential rulings don't receive the time and attention that for-publication rulings get, and judges are often reluctant to facilitate access to work that is not their best. In addition, judges may be concerned that providing easy access to non-precedential rulings will encourage lawyers and litigants to cite to such decisions, in violation of state court rules that may discourage or prohibit doing so.
In Indiana, whether for publication or not, every decision issued is a full-fledged, extensively reasoned and carefully drafted, opinion. As the judges up for retention on our Court of Appeals this fall responded to an ILB question on NFP opinions:
The Court of Appeals of Indiana is one of a few intermediate appellate courts that decide every case by a full written opinion decided by a three-judge panel. You are right that there is no significant difference between an opinion that is designated for publication and one that is not. Usually, no decision is made regarding publication until after the opinion is completely drafted. This results in the quality of the not for publication opinions being substantially the same as the for publication opinions.

In some cases, we will know from the outset that a particular case will be decided by a published opinion because it clearly falls within the criteria in the rule. In other cases, the decision is made after the opinion is written and circulated to the panel. In all cases, the writing judge makes a recommendation to the other members of the panel regarding publication.

If the recommendation is to publish the opinion, the recommendation will be made by a publication memorandum setting out the reason publication is recommended with reference to the appropriate provision of App. Rule 65.

Sometimes, one of the other members of the panel will suggest publication for a case that the writing judge did not originally designate as a for publication case. We occasionally have a situation where somebody writing a dissent feels that a case should be published because of the nature of the opinion expressed in the dissent. Also on occasion, a member of the Court who is not on the panel will suggest publication. The decision to publish or not publish is made by a majority vote of the panel.

Posted by Marcia Oddi on January 6, 2007 08:13 PM
Posted to Courts in general