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Monday, January 17, 2011

Ind. Courts - Some thoughts about Indiana NFP opinions; isn't it time to abolish all distinctions?

On Jan. 5th, the ILB posted this entry, headed "In Illinois, "Can you cite to unpublished opinions?" What about Indiana?"

This sent me to the ILB archives and today I republish, with some minor omissions and updates, an ILB entry first posted on Oct. 27, 2008.


Over two More than four years ago now, on August 23, 2006, the Indiana Court of Appeals began making its not-for-publication opinions (NFP) available online.

Approval of the Supreme Court was required for this change, because IC 33-25-3-6 provides:

The judicial opinion or decision in each case determined by the court of appeals shall be reduced to writing. Reports of these opinions and decisions may be published and distributed in the manner prescribed by the supreme court.
The Order of the Supreme Court, dated August 21, 2006, provided:
After due consideration, this Court has determined that the request shall be GRANTED, provided, however, the availability of Court of Appeals' not-for-publication memorandum decisions" on the Internet shall not in any way later or change their status as a "not-for-publication memorandum decision" for purposes of Appellate Rule 65.
Justices Sullivan and Boehm concurred in the Order. Chief Justice Shepard, and Justices Dickson and Rucker, according to the Order:
concur in result in the interests of comity, notwithstanding their belief that the posting of not-for-publication opinions on the Internet is unwise.
The posting of all the opinions of the Court of Appeals online has been a success for those wishing ready access to the work of the Court. It has also proven a success to the members of the Court of Appeals -- the change allowed the public to see that in the past they had only been viewing the tip of the iceberg insofar as the work product of the Court was concerned.

Two questions to consider:

After two more than four years of increased familiarity with NFPs, this may be the time to consider two related questions:

Taking a broad view, there appear to be four general categories:

Looking specifically at Indiana's Rules:

Here is Appellate Rule 65, Opinions and Memorandum Decisions, subsection (D):

D. Precedential Value of Not-For-Publication Memorandum Decision. Unless later designated for publication, 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.

What is a "memorandum" opinion?

A casebook, Appellate Courts [full cite to be added later], states:

We use the term "memorandum opinion" to indicate a short opinion that is significantly different from the traditional appellate opinion, which is usually more lengthy and involved. We refer to the latter as a "full opinion."
Later the casebook quotes from an essay [full cite to be added later] distinguishing between memorandum and full opinions to the effect that a memorandum opinion must convey at least (1) the identity of the case, (2) the ultimate disposition, and (3) the reasons for the result. A full opinion, on the other hand, would set forth the facts and procedural history, and spell out the reasoning as well as the reasons.

Is there any distinction in Indiana between FP and NFP, other than the stamp at the top of the opinion?

Prior to the retention election in 2006, the ILB published the following Q & A it had posed to the COA judges running for retention:

Question #2. NFP opinions.

Q. Under App. Rule 65, Court of Appeals opinions are deemed “Not for Publication” unless the case establishes, modifies or clarifies a rule of law; criticizes existing law; or involves a legal or factual issue of unique interest or substantial public importance. Recently, the Court of Appeals decided to make its NFP opinions more accessible. For many of us, that meant seeing for the first time how much work the judges on the Court of Appeals actually put out each week. What we had seen up to then was merely “the tip of the iceberg.” What surprised many of us was that other than the NFP stamp in the upper left hand corner of the first page, the NFP are no different than the “published” opinions. These are not one-page “Affirm” or “Reverse” opinions. They are full-blown opinions, sometimes split, sometimes reversing the lower court. Who makes the “NFP” determination in each case? Is it the judge who writes the opinion? How does the process operate?

A. 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.

Who should make the designation?

With regard to the decision to designate an opinion as NFP, Rule 65(A) provides:

A Court of Appeals opinion shall be published if the case:

(1) establishes, 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.

One might wish that the basis of the panel's decision was made available along with the opinion.

Although Rule 65(B) provides that: "Within thirty (30) days of the entry of the decision, a party may move the Court to publish any not-for-publication memorandum decision which meets the criteria for publication," I'm told that such motions are not automatically granted.

With regard to the designation in general, I ended a Dec. 6, 2006 ILB entry on the status of NFPs with this:

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 January 17, 2011 12:38 PM
Posted to Indiana Courts