REVISED APRIL 29, 2003
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May 6, 2003
BEFORE THE ASSEMBLY JUDICIARY COMMITTEE
Re: AB 1165 (Dymally)
Citation of Unpublished Judicial Opinions
STEPHEN R. BARNETT,
Elizabeth J. Boalt Professor of Law
University of California, Berkeley
CHAIR CORBETT AND MEMBERS OF THE COMMITTEE:
Thank you for the opportunity to make this statement in support of Assembly Bill 1165, regarding the citation of unpublished judicial opinions. I have no client here today and speak independently as a legal scholar, attorney, and member of the public. As a legal scholar I have written several articles on the subject addressed by Assembly Bill 1165. 
I. Analysis of AB 1165
A. AB 1165 would do simply three things:
1. The bill provides that all appellate opinions issued on or after its effective date "shall be made available to public and private reporting services, electronically and without cost." (This is already being done, I believe, so this provision would simply ratify the status quo.)
2. In its key provision, the bill states that all appellate opinions issued on or after its effective date "may be cited to or by any court."
3. The bill provides that opinions issued on or before its effective date that have not been published in the Official Reports "shall have no precedential value, but may be cited for any persuasive value they may have." Any citation of such an opinion shall be accompanied by the notation, "unpublished opinion."
B. The heart of AB 1165 lies in its simple provision that, from now on, when a California Court of Appeal decides a case and issues an opinion, that opinion, whether or not it is published in the Official Reports, may be cited by attorneys and courts in other cases. The bill thus would bring into the light of judicial day the 94 percent of California Court of Appeal opinions that may not now be mentioned in a California court, no matter how important an attorney considers them to be to her client's case.
The bill says nothing about the precedential weight, if any, to be given to these unpublished opinions. That question would be left to the courts to which the opinions are cited. Court of Appeal opinions in California are not binding on other Courts of Appeal in any event, so these opinions would not be "binding" precedents for other Courts of Appeal. The courts would decide whether they are binding precedents for trial courts (and the courts would be free to lay down other principles concerning the weight to be given to these opinions). This approach is modeled after that which exists, as will be seen, in Texas and Ohio.
I daresay that most of the California public would be surprised to hear that California law now forbids attorneys to tell a court about cases -- indeed, 94 percent of the cases -- that the California Court of Appeal has decided. Our courts now are saying to lawyers, in the words of Judge Richard S. Arnold of the 8th Circuit Federal Court of Appeals:
We may have decided this question the opposite way yesterday, but this does not bind us today, and, what's more, you cannot even tell us what we did yesterday. ["Federal Appeals Court Decisions May Go Public," New York Times, Dec. 25, 2002, p. A13.]
Assembly Bill cancels this message; it would allow lawyers to tell courts "what [they] have done yesterday." The opponents of AB 1165 need to explain why a lawyer who thinks a previous court decision will help her client should be gagged from telling the court about that decision. That is the central issue here today.
An ancillary provision of AB 1165 deals with "unpublished" opinions in cases previously decided. Since the judges deciding those cases assumed they would not be citable, the bill provides that those opinions "shall have no precedential value," but may be cited "for any persuasive value they may have."
( AB 1165's differential treatment of new and old unpublished opinions follows the approach taken by the State of Texas in its new rule to be discussed presently. For myself, I do not see a large difference between the bill's treatment of future and past decisions, especially given the non-binding character of Court of Appeal opinions for other Courts of Appeal. I would not oppose eliminating the difference by providing that future unpublished opinions, as well as past ones, have no "precedential value" and may only be cited for their "persuasive value.")
II. The View of the Ostrich: Developments Outside California
Of all the statements opposing AB 1165 that I have read so far-- including the 11-page statement of the Los Angeles County Bar Association -- not one makes a single reference to developments outside California. This is the ostrich approach to state lawmaking. This Committee should know that in other jurisdictions, both state and federal, no-citation rules are crumbling. Here is a snapshot of recent developments.
A. In the federal courts of appeals, nine of the thirteen circuits, a distinct majority, now allow citation of their unpublished opinions. (This is clearly the trend, with the lst and D.C.Circuits having joined the majority in the past year and a half.) Today only the 2d, 7th, 9th, and Federal Circuits still ban citation of their unpublished opinions -- and even the 9th Circuit allows their citation for the purpose of showing intracourt conflicts. (See 9th Cir. Rule 36-3.)
Of the nine circuits (not counting the 9th) that permit citation of their unpublished opinions, all discourage the practice, but nonetheless allow it if the attorney considers it necessary. Two formulas are used: The 4th, 6th, and D.C. Circuits allow the cases to be cited as "precedents," while the 1st, 5th, 8th, 10th, and 11th Circuits deem the opinions not "precedents" but citable only for their "persuasive" value. (The 3d Circuit uses no formula but allows citation.)
B. Also in the federal courts, the federal Judicial Conference's Advisory Committee on Appellate Rules, chaired by Judge Samuel Alito of the 3d Circuit, has proposed for the entire federal system a rule allowing the citation of what the Committee calls "nonprecedential" opinions. (The Committee may approve this rule at its upcoming meeting on May 15, 2003.) As the Committee stated in the minutes of its meeting last November: "It is difficult to justify a system that permits parties to bring to a court's attention virtually every written or spoken word in existence except those contained in a court's own . . . opinions." See N.Y. Times, Dec. 15, 2002, p.A13.
C. In the States, the appellate courts of Texas, as of January 1, 2003, abolished their "unpublished" opinions in civil cases -- which represented some 90 percent of those cases -- and made all their new civil opinions citable. Prior unpublished opinions "have no precedential value" but are citable, with a notation that they were "not designated for publication" -- essentially the treatment proposed in AB 1165.) See Texas Rules of Appellate Procedure, Rule 47.
I have two recent reports from Texas. An official of the Texas Supreme Court reports that practitioners "have embraced" the new system, concerns have been "allayed," and "the sky has not fallen." Attorney Charles Babcock, who spearheaded the rule change, tells me that he and his colleagues are "very pleased with the way our rule is working, and so far so good."
In Texas, incidentally, the mainstream press has found the issue of uncitable judicial opinions to be worthy of both attention and concern -- in striking contrast to the apparent embargo on that issue in the California press. Virtually all leading Texas newspapers editorialized in favor of the now-adopted rule change. Typical headlines read: "Publish or Perish: Unpublished Appellate Court Opinions Corrode Texas Law," in the Houston Chronicle; "Court Blackout: Too Many Opinions Are Kept Under Wraps," in the Dallas Morning News; and "Court Opinions Should Become Public," in the San Antonio Express-News. The Fort Worth Star-Telegram observed: "One would think that, any time a Texas appeals court issues a ruling, anyone could find it in the law books and rely on it to make an argument in one's own case. One would be wrong."
D. In other states, there are these recent developments, as catalogued in a recent opinion of the Alaska Court of Appeals (McCoy v. State, 59 P.3d 747 (2002):
1. At least eight states now allow lawyers and courts to cite and rely on unpublished opinions, not as "precedents" but for their "persuasive" value. These are Iowa, Michigan, Virginia, Minnesota, New Mexico, Oklahoma, Tennessee, and Alaska.
2. Two states have recently gone further.
In Ohio, until May 2002, the court rule provided that unpublished decisions of the Ohio courts of appeals were not "controlling authority" . . . but could be cited as "persuasive authority." In May 2002, this was superseded by a new rule that (a) eliminates the distinctions between "controlling" and "persuasive" authority, and (b) provides that all opinions issued henceforth "may be cited as legal authority and weighted as deemed appropriate by the courts."
The Utah Supreme Court achieved the same result in 2002 in striking down the no-citation rule promulgated by the Utah Judicial Council. Grand County v. Rogers, 44 P.3d 734, 738 (2002). The Supreme Court said:
The work of judges, the . . . decisions and opinions issued to the parties, bar, and public, is the very fabric of the common law. When judges speak on issues of law, that expression becomes part of the law until it is authoritatively revised. When the court of appeal renders a decision on an issue, that decision is automatically part of the law of this state, unless and until contravened by this court, the legislature, or the people . . . . For this reason, decisions of the court of appeals expressed in a memorandum decision, or in an opinion, are equally binding upon lower courts of this state, and may be cited to the degree that they are useful, authoritatively and persuasively. . . . .
E. Given all these developments in State courts and the federal courts, one has to wonder about California. If other jurisdictions can make their unpublished opinions citable without causing the sky to fall, why can't California? This Committee, I respectfully suggest, should require an answer to that question from those who oppose this bill.
III. The Constitutional Perspective
A. Article VI, Section 14
AB 1165 is not unconstitutional, as the Los Angeles County Bar Association claims. The Association relies on Art. VI, Section 14, of the California Constitution. That section instructs the Legislature to "provide for the prompt publication of such opinions of the Supreme Court and the courts of appeal as the Supreme Court deems appropriate." It is not easy to comprehend the constitutional argument, since AB 1165 would in no way disturb the present system of publication. Court of Appeal opinions could be judged by the criteria of the California Rules of Court, Rule 976, and selectively designated for publication in the Official Reports exactly as they now are. The text of the Constitution would in no way be offended.
Recognizing this, LACBA falls back on a claim that the policy of Art. VI, Section 14, would be undermined. The claim is that the change would "effectively nullify the Supreme Court's authority" under Article VI, Section 14; "it would be a pointless act for the Court of Appeal and the Supreme Court to select Court of Appeal cases for publication in the official reports if all written opinions are citable as precedent."
Why would that be a pointless act? If we look again outside California, we see many jurisdictions, both federal and state -- including nine federal circuits -- that select some of their opinions for publication while allowing their other opinions to be cited. If this were done in California, the purposes of selective publication still would be served, as they are in other jurisdictions. Not only would paper and shelf space still be saved, but the courts by publishing selected opinions still could inform other courts, attorneys, and the public which opinions the courts themselves considered to be significant and precedential, thereby focusing research on those opinions and imparting to them an enhanced precedential value -- without, however, preempting the judgment of attorneys and courts who find something worth citing in an opinion that the court has not designated for publication. Allowing citation of unpublished opinions does not effectively nullify the Supreme Court's publication power any more than that power is nullified by "publishing" all court of appeal opinions electronically, as the California courts now do themselves.
B. This Legislature and the Judicial Function
LACBA's constitutional argument also claims that "[f]ew tasks could be more characteristic of the judicial function than determining which cases may be cited as precedent." That is most doubtful. The characteristic task of the judicial function is to decide cases. Determining what effect those case decisions will have on future law is a legislative judgment, as is making the future law itself. This is especially so in a "Code State" such as California, with its tradition of Legislature-made law.
An example of this Legislature's authority to revise the future legal effect of court judgments was demonstrated a few years ago by adoption of Code of Civil Procedure § 128 (a) (8), overruling the decision of the California Supreme Court in Neary v. Regents of the University of California, 3 Cal. 4th 273 (1992). Neary had held that when parties on appeal wanted to have the trial court's judgment reversed by stipulation, as a general rule they were "entitled to a stipulated reversal by the Court of Appeal absent a showing of extraordinary circumstances that warrant an exception." Id. at 275. Neary thus represented the California Supreme Court's view of one aspect of the effect to be given to court judgments. This Legislature overruled that view by enacting CCP § 128 (a) (8). Section 128 deals -- significantly -- with "[p]owers of courts," and the new § 128 (a) (8) provides that "[a]n appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties" unless the court makes two required findings (emphasis added).
If this Legislature, in exercising its authority over "[p]owers of courts," can overrule the Supreme Court's view of the reversible effect of a court judgment, there is no reason why this Legislature cannot overrule the Supreme Court's view of the citability or the precedential effect of court judgments.
C. The constitutional shoe on the other foot.
Far from preventing this Legislature from lifting the veil of legal secrecy that now shrouds 94 percent of Court of Appeal opinions, the Constitution, I believe, condemns the no-citation rule. That rule raises serious constitutional questions on at least two grounds.
(1) In Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), a decision of the federal 8th Circuit Court of Appeals subsequently vacated as moot (235 F.3d 1054 (8th Cir. 2000) (en banc), the court held that its own rule denying precedential effect to unpublished opinions exceeded the judicial power conferred by Article III of the Federal Constitution. Although the court in Anastasoff was not, of course, interpreting California's Constitution, "[t]he judicial power of this State" conferred by Article VI, Section 1, of the California Constitution has been held to be similar in fundamental respects to the federal Article III power. See, e.g., Arrieta v. Mahon, 31 Cal.3d 381, 386 (1982) (discussing "case or controversy" requirement under both Constitutions); Barnett, Making Decisions Disappear: Depublication and Stipulated Reversal in the California Supreme Court, 26 Loyola L.A.L.Rev. 1033, 1038-39 & ns. 26-30 (1993).
Moreover, the no-citation rule at issue here intrudes further into judicial than did the rule at issue in Anastasoff, which allowed citation and denied only precedential effect. As Judge Alex Kozinski has written for the 9th Circuit: "we would consider it bad form to ignore contrary authority by failing even to acknowledge its existence"; and "[s]o long as the earlier authority is acknowledged and considered, courts are deemed to have complied with their common law responsibilities." Hart v. Massanari, 266 F.3d 1155, 1169-70 (9th Cir. 2002). If cases cannot be cited, they cannot be "acknowledged and considered." California's no-citation rule thus precludes what Judge Kozinski apparently considers an essential part of the judicial function.
(2) A no-citation rule also may well violate the Free Speech Clauses of the federal and state Constitutions. In Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001), the Court struck down, under the First Amendment, a congressional prohibition against the use of Legal Services Corp. funds in cases involving efforts to amend or challenge existing welfare law. Calling the ban "inconsistent with the proposition that attorneys should present all the reasonable and well-grounded arguments necessary for proper resolution of the case," the Court declared that the enactment under review, in its attempt to "prohibit the analysis of certain legal issues and to truncate presentation to the courts, prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power." Id. at 545.
Similarly here, a rule that prohibits a lawyer from citing a case which the lawyer considers helpful to her client's cause truncates presentation to the courts and prevents lawyers from making the arguments necessary for proper resolution of the case. Recently, for example, a severely beaten plaintiff had summary judgment against him affirmed by the Court of Appeal without being able to tell that court about an arguably inconsistent decision nine weeks earlier by another Court of Appeal, in which the earlier court had rejected a published decision on which the later court relied. See Barnett, "Hidden Wisdom," S.F.Daily J., Nov. 18, 2002, p. 4. By thus gagging lawyers in their presentation of cases, California's no-citation rule may well violate the First Amendment, as did the law in Velasquez. It may also deny Due Process of Law to the litigant thus hobbled. See Katsh and Chachkes, Constitutionality of `No-Citation' Rules, 3 J. Appellate Practice and Process 287 (2001).
If this Committee is to conduct any further constitutional inquiries, I respectfully suggest that it should consider not only the constitutional validity of AB 1165, but also that of the no-citation rule that AB 1165 would correct.
IV. Statistical Perspectives
Finally, a look at the latest Court Statistics Report of the Judicial Council (for fiscal year 2000-2001) yields facts worth noting here in three respects:
A. The numbers game. The Los Angeles County Bar Association speaks apocalyptically of the "staggering," "enormous," and "drastically increase[d]" costs that would be imposed by making the decisions of the California Courts of Appeal mentionable in California's courts. At issue, LACBA says, are some 13,000 written opinions issued by the Court of Appeal that would now be citable, "some sixteen times the number of opinions that were published" (emphasis in original). A look at the statistics shows that these figures perhaps are not so scary. Of the 13,000 opinions, some 6,500 were in criminal cases and another 2,000 in juvenile cases, leaving only some 3,900 in civil cases. When you are researching a civil case, you aren't much bothered by precedents in criminal or juvenile cases, and vice versa. And, of course, it isn't as if you have to go to the library, stack those 3,900 opinions on your desk, and go through them individually; it's all done by the computerized data base.
B. LACBA concedes (p. 10), "[it] is undeniable that, on occasion, some courts fail to publish opinions that are appropriate for publication." This is a whopping understatement. The latest statistics show that the percentages of opinions published by the various Districts and Divisions of the Court of Appeal continue to vary wildly. Among civil cases, the rates within the First District alone vary from 4% in Division 1 to 23% -- almost six times as high -- in Division 4. In the Second District, the percentages range from 7% in Division 5 to 20% in Division 3.
Are we to believe that all the Divisions of the Court of Appeal are interpreting and applying equally the publication criteria of Rule 976, and that the cases coming up in Division 4 of the First District just happen to be six times more important or interesting than the cases coming up in Division 1? Given the wide divergences among Divisions, one can only conclude that California's judicial system is being denied access, not only to designedly "unpublished" decisions, but to many decisions that should have been published by the courts' own standard. The drastic inconsistencies in publication rates scream out that the law is not being applied equally in California. If publication alone were at stake, it would not much matter; but when the unpublished cases are also non-citable, these cases are walled off from lawyers and litigants who might use them for the benefit of their clients. The damage is considerable and the affront to the rule of law is palpable. How can the Judicial Council defend such a system? The gaping inequality in publication rates itself requires making the unpublished opinions citable, so as to protect litigants and lawyers in California's courts from the arbitrary inequality that now prevails.
C. Finally, it is interesting to note some data on the work of the California Court of Appeal. While some 13,000 opinions were issued by the Court statewide last year, the percentage published was only six percent, or 780 opinions. That is not very many; one may ask whether California's judicial system, legal profession, and public are getting their money's worth.
With respect to individual Court of Appeal Justices, the average number of majority opinions -- both published and unpublished -- issued by California's Court of Appeal justices last year was a very respectable 134 per justice. The average number of published majority opinions issued by a Court of Appeal justice last year, however, was -- eight. Once again, one wonders whether California is getting its money's worth in law from the Court of Appeal. I have a high regard for the California Court of Appeal and its justices; I think they are hard-working -- as the average of 134 total opinions per justice testifies -- and I think their opinions on the whole are highly competent, including their unpublished opinions. But California's legal profession and judicial system at present have access to only a tiny part of the Court of Appeal's product. I think they deserve more.
I respectfully urge the Committee's approval of AB 1165, and I will be happy to answer your questions. Thank you.
# # #
 See, e.g., From Anastasoff to Hart to West's Federal Appendix: The Ground Shifts Under No-Citation Rules, 4 Journal of Appellate Practice and Process 1 (2002); "Hidden Wisdom," San Francisco Daily Journal, Nov. 1, 2002, p. 4.