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Wednesday, January 21, 2015

Courts - "Federal Appeals Court Slapped Over Lengthy ‘Unpublished’ Ruling"

Tony Mauro, The National Law Journal, reports today in a long story that begins:

U.S. Supreme Court Justice Clarence Thomas on Tuesday sharply criticized a federal appeals court for issuing a lengthy opinion that was nonetheless unpublished, which he called a "disturbing aspect" of the case before the high court.

The comment could revive a decades-old debate over so-called "unpublished opinions" of appeals courts, which are sometimes cursory and don't have precedential value. According to the most recent statistics available, 88 percent of the 37,820 opinions issued by federal appeals courts in 2013 were categorized as "unpublished"—a misnomer because most are actually available through the court that issued them or through online data services.

Thomas, joined by Justice Antonin Scalia, criticized the U.S. Court of Appeals for the Fourth Circuit for issuing a 39-page unpublished opinion after full briefing and argument. That did not meet established criteria for issuing unpublished opinions, Thomas said.

"By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published," Thomas wrote.

Thomas added, "It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the circuit."

Mauro's story ends:
Controversy over unpublished opinions divided the federal judiciary a decade ago, with judges—including the Ninth Circuit's Alex Kozinski—arguing that ending them would vastly increase the workload of judges by requiring them to put more research into even the most cursory rulings.

But the late Judge Richard Arnold of the Eighth Circuit and others argued that issuing decisions without precedential value was unconstitutional.

In 2005 the Supreme Court issued a rule that did not end the practice, but said lawyers could cite unpublished opinions. That did not stem the flow of unpublished opinions in most courts.

ILB: That is the same proposal that the Indiana Supreme Court last year turned down, one that would not have ended the NFP practice, but that would have permitted Indiana attorneys to cite unpublished opinions. (The ILB has for years urged that NFP opinions be eliminated entirely.)

Here, via The National Law Journal, is Justice Thomas' language on the "unpublished" issue:

True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit. Minor v. Bostwick Labs., Inc., 669 F. 3d 428, 433, n. 6 (CA4 2012). But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review. The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent. By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published. The Fourth Circuit’s Local Rule 36(a) provides that opinions will be published only if they satisfy one or more of five standards of publication. The opinion in this case met at least three of them: it “establishe[d] . . . a rule of law within th[at] Circuit,” “involve[d] a legal issue of continuing public interest,” and “create[d] a conflict with a decision in another circuit.” Rules 36(a)(i), (ii), (v) (2015). It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.

Posted by Marcia Oddi on January 21, 2015 12:52 PM
Posted to Courts in general