Debate Heats Up Over Unpublished Opinions

California Lawyer Magazine.  May 2008

S. Todd Rogers    

Chief Justice Ronald M. George    

Do unpublished opinions open the door to inconsistencies in the law and a lack of judicial accountability? A federal lawsuit against the California Supreme Court recently raised the stakes over this question, asking the district court to overturn the state's prohibition on citing unpublished opinions.
      Hild v. California Supreme Court(No. C-07-5107-JCS (N.D. Cal. filed Oct. 4, 2007)) argues that the state's publication rules violate Californians' due-process and equal-protection rights by creating "a de facto policy of refusing review of unpublished decisions in civil cases."
      The suit came about after a jury awarded $704,633 to Joshua Hild, a Big Creek teenager who was blinded in one eye when an employee of Southern California Edison fired a paintball gun. On appeal, the Court of Appeal for the Second District rejected the verdict in an unpublished opinion.
      While a petition hearing was pending in the state Supreme Court, personal injury firm Bisnar Chase then filed the federal lawsuit in California's Northern District. According to the suit, the high court routinely declines review of unpublished decisions in civil cases except in "extremely rare" instances in which it has previously granted review from a published decision presenting the same issues. This practice, the firm alleges, violates the 14th Amendment.
      Earlier this year, U.S. district Judge Thelton E. Henderson roundly rejected that argument, saying the suit's "claims are doomed to fail on the merits." Bisnar Chase has appealed the case to the Ninth Circuit.
      Although federal Rule of Appellate Procedure 32.1 has, since 2006, allowed unpublished opinions to be cited, the California Constitution lets the courts decide which opinions they publish. However, California's appellate courts still publish only 8 percent of their opinions, Chief Justice Ronald M. George said last year.
      The question of publication in California divides, roughly, the bar and the bench. A 2006 survey found that two-thirds of attorneys favored the citing of unpublished opinions, compared with only 28 percent of jurists-who, after all, must labor over the writing of those opinions.
      For those who want to change the rules, the heart of the matter is the principle of stare decisis, says Ventura solo appellate attorney Greg May, author of The California Blog of Appeal.
      Defenders of the current system, meanwhile, point to the already overburdened courts. Chief Justice George has said that allowing citation of all decisions would force judges, lawyers, and law clerks to sift through twelve times as many cases as they do now.
      "The amount of work ... would drastically increase the cost of delivering legal services," adds David Axelrad, a partner with Encino appellate firm Horvitz & Levy. "One hundred percent of the appellate court decisions [would be] citable precedent-you'd have to read all of them!"
      Kimberly Kralowec, an appeals attorney at San Francisco's Schubert & Reed, agrees that a change would mean extra work for lawyers. But she also finds some truth to the claim that the state Supreme Court is much less likely to grant review of unpublished decisions. "I can hear the frustration that is coming through in [the Hild] complaint," says Kralowec, who blogs at The Appellate Practitioner. "Whether it rises to a constitutional violation is a different story."