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Do unpublished opinions open the door to inconsistencies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
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rights by creating "a de facto policy of refusing review of unpublished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rejected the verdict in an unpublished opinion.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to the suit, the high court routinely declines review of unpublished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
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32.1 has, since 2006, allowed unpublished opinions to be cited, the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.
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attorneys favored the citing of unpublished opinions, compared with only 28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
For those who want to change the rules, the
heart of the matter is the principle of stare decisis,
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!"
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."