Monday, May 02, 2016
Ind. Decisions - Some history about the availability of Indiana COA not-for-publication opinions
The Question: Recently a reader wrote to me saying he had looked in the Indiana Courts' database of past opinions and could not find a Court of Appeals opinion from 2004, although the Court of Appeals archives appear to go back to 1999.
The Court of Appeals opinion was cited in an April 26th 7th Circuit opinion. Here is the ILB summary of the 7th Circuit opinion. Here is the 7th Circuit reference:
The convictions were affirmed on direct appeal, see Miller v. State, No. 34A02-0307-CR-563 (Ind. App. June 8, 2004).The Answer: This 2004 opinion was an unpublished (NFP) opinion. Until late in 2006, Court of Appeals opinions designated as Not for Publication were not published, either in print or online! Today, nearly 10 years later, many may be unaware of this.
Although the NFP opinions were full opinions, just as they are today, they were not available except by formally requesting a printed copy ($1.00/page) from the Court of the Appellate Courts. Of course, to do that, you had to be aware the decision existed.
Sometimes, reports from this or that unpublished opinion would appear in the news. This would be because a reporter had taken the opportunity to read though the piles put out on the clerk's counter for the press. Annoyingly to the ILB, often the resultant story would not give the case name!
And what about West? Were the NFPs published by West, either online or in print? I've confirmed my recollection with the Supreme Court librarian - the answer is no, West simply published the weekly disposition table issued by the Court.
So if you try today to locate a NFP case from before August 2006 in the COA's online archive cases, you won't find it. And you won't find it via West. But a copy of the COA opinion, NFP or Published, may be found in the case file in the records of the Clerk of the Appellate Courts.
More: I remember distinctly the day that this changed. It is recorded in this Aug. 23, 2006 ILB post. Some quotes:
It is not news that the Court of Appeals issued 15 NFP opinions today, but these have been posted. * * *Finally, here is the Supreme Court order, issued August 21, 2006, where the Supreme Court consents to the posting of Court of Appeals not-for-publication memorandum decisions. The vote is interesting:
With permission. I am posting a message that I received earlier today in answer to the question "Does this [posting of 15 NFPs] indicate a change in policy, or was it a posting error? The ILB is attempting to find out."Dear Marcia,
The internet posting of our not-for-profit opinions which you noticed today is the result of a change in policy, not inadvertence. This change comes about after extended study and debate which was prompted to a significant degree by a number of postings in The Indiana Law Blog.
Thank you for both raising the issue and contributing to the debate. If you have any questions, please write or call.
James S. Kirsch
Court of Appeals of Indiana
Sullivan and Boehm, JJ, concur.
Shepard, C.J, Dickson, J, and Rucker, J. concur in result in the interests of comity, notwithstanding their belief that the posting of not-for-publication opinions on the Internet is unwise.