Views Favoring Nonpublication

The opinion rendered in the case Sorchini v. City of Covina is here: Sorchini v. City of Covina No. 9956257p - 05/04/2001
The reader should note the following about Sorchini:
  1. It is a per curiam opinion - with a dissent!
  2. The dissent is unexplained. We do not know if Judge Tallman disapproves of no citation, or whether he thinks attorney Cindy Lee ought to be sanctioned. What is to be learned of the Judge's thinking? What force silences him?
  3. The underlying point of law regarding use of force is still unknown and unmentionable, even after two successive considerations by the appellate court. Is this an efficient use of court time?
  4. In footnote 1 the court references General Order 4.3.a ("Because the parties and the district court are aware of the facts, procedural events and applicable law underlying the dispute, the disposition need recite only such information crucial to the result.") Judge Kozinski, defending nonpublication before a program of the SF Bar said that no one can show inconsistencies among 9th Circuit decisions. But how are we to spot them given this General Order?
  5. Footnote 2 cites Bush v. Gore as authority for one time application of law. "This excuse is valid only in this case. See Bush v. Gore, 121 S. Ct. 525". If the Supreme Court has expressly announced that it may make rules of law and limit their prospectivity, and that policy is reiterated and acted upon by the 9th Circuit, is the rule of law now dead in the 9th District and replaced by ad hoc decision making?
  6. Sorchini explains...
    "she cited Kish v. City of Santa Monica, No. 98-56297 (9th Cir. Apr. 13 , 2000), which she acknowledged to be an unpublished disposition. Kish held that "no past decision by this court or the Supreme Court can be read for the rather broad proposition that the police should give a warning before force is used against a person."...
    "neither Kish's holding, nor Kish's observations about the state of the law, have any bearing on this inquiry. The only way Kish could help counsel's argument is prohibited by Ninth Circuit Rule 36-3 --by persuading us to rule in the City's favor because an earlier panel of our court had ruled the same way. Unpublished dispositions are neither persuasive nor controlling authority, and the limited exceptions to the noncitation rule contained in section (b) are not intended to change that."
Is this language consistent with the common understanding of the manner in which our legal system works? Does this not deprive the City of Covina of a equal protection of a defense against liability that was made available to others?

Some other position statements in favor of nonpublication:


ARGUMENTS IN OPPOSITION to California AB2404: The complete text of the Assembly's bill analysis is here. The Judicial Council opposes the bill, arguing that: The current rules for publication and citability best serve the public interest. Pursuant to the California Constitution, the California Rules of Court, Rule 976 establish the grounds for publication of appellate opinions in the official reports. Conferring precedential value on the many thousands of unofficially published cases would add nothing to the development of the law. On the other hand, requiring counsel to search for and review all appellate cases, whether or not officially reported, would place undue time and cost burdens on litigants, their counsel, and the courts. Further, if privately published cases constituted, precedent, there would be no way to ensure that counsel would be able to locate and review all related opinions.

The California Judges Association also opposes the bill, citing the following reasons: AB 2404 would create an unconstitutional statute, usurping the Supreme Court's prerogative and violating the separation of powers doctrine. (Article VI, section 14, of the California Constitution provides that "The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate . . . ." [Bold italics added.].) The number of opinions published in California is already staggering. Publication of all written appellate opinions would promote obfuscation and increase the complexity of judicial decision-making. Circulation of opinions not certified for publication is a moot issue. Those opinions are presently available as public records. No Rule or statute prevents private publication or circulation. Precedential use of all opinions for stare decisis purposes would monumentally increase costs of litigation both for the judiciary and for the legal community. (Both lawyers and courts would require costly and complex new legal research mechanisms.)

In opposition to the bill, the California District Attorneys Association (CDAA) states: Article VI, section 14 of the California Constitution provides discretion to the California Supreme Court to publish those decisions the high court "deems appropriate." Given that AB 2404 merely amends the Government Code, it would appear this legislation is unconstitutional. Aside from questions of (AB 2404 Page 8) constitutionality, CDAA is also opposed to this legislation for policy reasons. Presently, Rule 976 standards help ensure that only the most worthy and important cases are published. AB 2404 would impose no similar standards on private publishers. This creates the very real potential that all appellate decisions no matter how poorly decided or otherwise inconsequential, would be published and given the authority of stare decisis. The flood of published opinions resulting from this legislation would create tremendous problems in the litigation of criminal cases. The body of applicable caselaw would expand dramatically, requiring practitioners to undertake the virtually impossible task of, at a minimum, becoming aware of all such cases, if not actually reading them. Moreover, it would require prosecutor and defense offices to subscribe to all private publishing services at considerable public expense. CDAA strongly believes that discretion whether to publish appellate decisions soundly and appropriately rests with the California Supreme Court. The Court performs admirable work cuffing out those cases warranting publication and avoiding the unnecessary publication of those that do not.

The California Public Defenders Association also opposes the bill, arguing that it is "concerned about the practical impact this bill will have on its members, and for that matter, all practicing attorneys throughout the state. ... Attorneys would be required to review not only the official reporters to determine the state of the law, but also a hodgepodge of unofficial reporters with thousands more opinions that were never intended to have precedential value in the first place."

In opposition, the California Attorneys for Criminal Justice argues: Deciding which interpretations of the law should be published and therefore binding in other cases properly rests with the Supreme Court. (See Calif. Const., Art. VI, sec. 14.) If enacted, this measure will be subject to constitutional challenges; it not only conflicts with specific constitutional (AB 2404 Page 9) provisions, but it violates the separation of powers by allowing the legislative branch to encroach on the powers of the judiciary. In addition, AB 2404 would greatly expand the body of law attorneys and proper litigants are expected to know. It will be virtually impossible to discern which rule is the "right" rule. For every rule of law, the opposite rule of law will exist. Some factual situations are so common that the opinion cannot possibly add anything to the existing body of law. Often the analysis is illogical or simply incorrect. This measure would completely blur what little clarity and consistency we have in our decisional law.

The Western Center on Law and Poverty cites concerns that the bill "would give significant legal advantages to wealthy clients and their lawyers who are better able to selectively publish and cite decisions which benefit their interests. It would also require investment of additional resources to do legal research, and place attorneys with poorer clients and fewer resources at greater risk of malpractice for failure to uncover obscure, privately published precedent."

The Consumer Attorneys of California argue that: making all appellate decisions public will lead to enormous practical problems. First, keeping abreast of the large body of law that would be created under such a system would be extremely difficult. The sheer volume of cases would be impossible to follow. Second, the volume of cases would lead to confusion. Many appellate decisions that are not certified for publication are fact dependent and should not form the basis for precedent. This could lead to poor decisions being used as precedent, especially in rapidly developing areas such as employment products, mass toxics and the more complicated areas of law. While we understand the author's concern about the increasing number of unpublished (and de-published) opinions, we are concerned about the problems this proposed solution would create. (AB 2404 Page 10)

The California Defense Counsel fears that the bill's "approach would result in total chaos, with opinions published by an almost endless number of sources, all with precedential value. The chances of missing a case to the detriment of our clients, with resulting malpractice exposure, would increase greatly, with no discernible offsetting benefit. Finally, we are not sure exactly what problem the bill is attempting to solve - the existing publication system works well, is understood by practitioners, and is evolving as new technologies emerge."

The Attorney General's Office also opposes the bill, stating: It is our opinion that this bill is in derogation of the authority of the Supreme Court under article VI, section 14, of the state constitution; it may be beyond the Legislature's authority to prescribe the precedential effect of decisions by purporting to require application of stare decisis in later cases heard by reviewing courts; it would cause a great workload increase for the courts, thus delaying the rendering of decisions; and it would impose a tremendous burden on attorneys, including those in the Department of Justice and other governmental agencies, thereby delaying cases and increasing costs.

In opposition to the bill, the Los Angeles County Bar Association Appellate Courts Committee states: If all unpublished opinions are posted on the courts' web sites, the justices and their staff will have to invest extra time in drafting all opinions so that they are minimally understandable to nonparties who do not have the benefit of familiarity with the record and briefs on appeal. Time spent polishing opinions that offer no significant legal guidance beyond the existing body of published precedent could be better invested in deciding other cases expeditiously. Moreover, if opinions are posted, it will likely be more difficult to obtain a consensus among the justices regarding the precise approach for arriving at a result that all agree is proper. Again, if extra time is spent to craft concurring opinions, costly delays in the resolution of appellate litigation will inevitably result. (AB 2404 Page 11) We are aware of the contention that selective publication gives institutional litigants an edge because they are aware of some of the unpublished opinions. However, from our committee's collective experience, we do not believe that any one litigant or law firm has access to unpublished opinions that offers a measurable advantage over any other party. More importantly, it is far from clear that indiscriminate posting of all opinions, presumably on an internet-accessible site, would remedy the perceived inequality between smaller and larger firms or litigants; the reverse is likely to he true. The resources of better-heeled litigants - newer computers, faster internet connections, larger staff, and more money to pay electronic services like Lexis and Westlaw - may well give them a greater ability than smaller competitors to plow through a dramatically increased body of law for insights into judicial trends or individual justices' thinking. Posting all opinions raises a number of logistical problems that will drain the court system's limited monetary resources. We anticipate that commercial services would step into the mix, seizing the opportunity to compile the opinions and make them available on a fee-paying basis. But without strict court oversight, the sites would be unofficial and potentially unreliable. In addition, fee-based sites would undercut any benefit to litigants with limited funds. We already have an enormous common law base upon which to build -- a base promised on the rule that decisions announcing new or important rules of law will be published. (See Cal. Rules of Court, rule 976(b),) Multiplying that base ten-fold by granting stare decisis effect to opinions that offer no additional meaningful guidance to litigants would only require courts and counsel to parse innumerable opinions in an attempt to analogize, harmonize, and/or distinguish the results in cases that differ in insignificant particulars. This would hinder, not advance, the development of a coherent body of precedent.

Also, please see the following links for other documents in favor of nonpublication: