2005 The Daily Journal Corporation.
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April 28, 2005


        Forum Column
        By Stephen R. Barnett
        My incoming mail was upgraded last week by an official letter from the grandly named Supreme Court Advisory Committee on Rules for Publication of Court of Appeal Opinions. This is the 13-member committee, chaired by California Supreme Court Justice Kathryn M. Werdegar, that Chief Justice Ronald George has appointed to study the existing standards for publication of appellate opinions and recommend appropriate changes, if any.
        George created the committee in November, six months after agreeing to do so in a deal with state Sen. Sheila Kuehl, D-Santa Monica; Kuehl in return dropped a bill that would allow what most of California's appellate judiciary considers anathema: citation of unpublished opinions.
        Stressing that citation was not on the table, George gave the Werdegar committee until June 2005 to report. With only some two months left, the committee now has bestirred itself to send out a survey, with a response deadline of May 13. This is the letter I have received. One wonders what the committee has been doing for the past five months, and what George was doing for the six months before that.
        The Werdegar committee was already a dubious enterprise in two respects. First was its composition. The 13 members include one Supreme Court justice, six (count 'em) Court of Appeal justices (one from each appellate district), three appellate specialists familiar to the Supreme Court, and three judicial-system officials (including George's chief attorney). Stacked with these insiders, the committee was hardly likely to question the way the chief justice wants things done.
        Second, this was made doubly sure by the way the committee operates: in secret, with closed meetings and undisclosed proceedings. Letters to Werdegar asking that the meetings be open, or at least that the committee's papers be made public, were answered by a Supreme Court official refusing to do any such thing.
        The survey asks some useful questions ("Have you ever requested publication of an opinion?" "In your view, are the publication rules uniformly followed?"). But as one would expect from the committee's insider domination and secret proceedings, the survey as a whole is shaped to exclude full consideration of the issues and to support the present system.
        One wonders, in the first place, who receives the survey and who may reply to it - nontrivial questions, one would think. Finding no answer, I called the committee's staff attorney (who signed the letter to me). She said the recipients numbered "30 or so." She pointed out, however, that the survey also exists on the state court Web site, www.courtinfo.gov - the committee's preferred mode - and that people beyond the chosen 30 could respond to it that way.
        The online version is titled: "Survey for Appellate Attorneys." I asked the staff attorney whether this meant that only "appellate attorneys" - however defined - could respond. Aren't there many other lawyers and judges in California - trial attorneys, business attorneys, academics, judges of all stripes, indeed all lawyers in the state and the public as well - who are affected by decisions whether to publish cases and make them law, and who might have suggestions about the process? The staff attorney agreed. But, she said, the committee had decided to "focus on people who do appellate work," so as to "stay closer to the workings of the system." She noted, reasonably enough, that I had been included.
        I asked whether people who are not appellate attorneys nonetheless could respond to the survey. The staff attorney replied, "We can't stop them." I asked whether their replies would be read. The staff attorney repeated: "The idea was to focus on people who do appellate work." So there will not be, apparently, any general announcement inviting responses to the survey; and responses submitted may not be read.
        The survey's sixth question asks: "Do you believe that anything other than the criteria currently set forth in Rule 976, such as local traditions, standards or practices, influence a court's determination whether or not to certify an opinion for publication?"
        Notable here, besides the awkward phrasing of the "such as" clause, is the one-sided content of that clause. The suggested non-Rule-976 criteria for publication - "local traditions, standards or practices" - are bland and inoffensive. Conspicuously absent is any suggestion of less acceptable reasons for failure to publish.
        There is no inquiry about whether decisions go unpublished in order to bury improprieties, or to protect decisions from reversal, or to assure that they won't face criticism from other courts, or in return for suppressing a dissent, or to make life easy for judges, or to suppress opinions containing judicial language or reported facts that embarrass the state's judicial system or individuals in that system. Plenty of such suggestions have been made over the years. In the committee's rosy view of the current system, however, such possibilities do not present themselves.
        Survey question 14 reads: "All opinions not certified for publication are available online. Do you regularly read these opinions?" This question continues the committee's slant. Of course most lawyers do not "regularly read" the unpublished opinions available online. But they may well use those opinions in their research, as when the opinions are brought up by electronic searches.
        By ignoring this possibility and asking only whether lawyers regularly "read" these opinions, the survey plays down the value of unpublished opinions.
        Finally, questions 16 and 17 are puzzling but important. Question 16 asks whether parties should be permitted, "in a petition for review or an answer, to draw the Supreme Court's attention to unpublished opinions within the relevant appellate district that arguably conflict with the decision made by the Court of Appeal in their case." Question 17 reads: "Should parties be permitted to refer, in the petition or answer, to unpublished decisions from any appellate district?"
        Question 17 thus continues question 16's limitation to "petition or answer," but apparently deletes the requirements of 1) "relevant appellate district"; and 2) use of the opinion to show a conflict with another court of appeal decision.
        By virtue of the "petition or answer" requirement, Questions 16 and 17 apparently are both limited to use in the California Supreme Court. Why should that be? Why shouldn't the unpublished opinions be usable as well to show conflicts to the courts of appeal? Why shouldn't they be usable, not just in petitions or answers in the Supreme Court, but also in briefs in the appeal courts or opinions of the appeal courts?
        Questions 16 and 17 present a further, fundamental question. In asking whether parties should be permitted to refer to unpublished opinions, even if only in the Supreme Court and only to show conflicts, the survey is opening the box that George has insisted on locking tight: whether unpublished opinions may be cited. If the committee itself raises the fundamental question of citing unpublished opinions, how does it justify ruling that question out-of-bounds for others?
        In sum, the committee's survey on the whole is slanted and unsatisfactory - just as one might expect from the committee's all-insider membership, its secret operation and its exclusiveness in choosing its subjects. Responses to the survey will lack credibility. And meanwhile, in Washington, D.C., the Appellate Rules Advisory Committee of the U.S. Judicial Conference last week approved a proposed rule for the federal circuits requiring that all unpublished opinions be citable - a rule like Kuehl's bill, where it all started. California is behind the curve, and the survey issued by the Werdegar committee is unlikely to help it catch up.
        Stephen R. Barnett is the Elizabeth J. Boalt Professor of Law Emeritus at UC Berkeley's Boalt Hall School of Law.