Appeal Courts Publishing More, Barely

The Recorder

By Mike McKee

June 27, 2008

A controversial court rule aimed at encouraging appellate justices to publish more opinions has accomplished its goal barely.

Figures provided by the state's reporter of decisions show that during the rule's first year of application, published rulings by California's six appellate districts rose by nine-tenths of 1 percent. While that might seem small, some attorneys and legal scholars call it a success.

"It was constantly falling," said Santa Clara University School of Law professor Gerald Uelmen. "So if it's starting to rise again, that's a very good sign."

California Rule of Court 8.1105 was adopted in late 2006 in part to attempt to appease a small but vocal chorus of attorneys who have long advocated that all of the state's appellate rulings be published. Unpublished opinions, they contend, prevent them from citing the judicial thinking in more than 10,000 cases each year.

The new rule has started slowly. Of 11,581 opinions filed by the state's appellate districts between April 1, 2007, and March 31, 2008, only 1,151 9.9 percent of the total were ordered published, according to figures given to The Recorder by California's reporter of decisions, who oversees the editing and publication of Supreme Court and appellate opinions in the state's official reports.

By comparison, a year earlier, between April 1, 2006, and March 31, 2007, when the old rules were in play, only 999 or 9 percent of 11,067 rulings were published, according to the court's records.

"Some folks were hoping for a bigger impact, but those are the numbers," Edward Jessen, the reporter of decisions, said last week. "I think it's a pretty healthy increase."

Jessen noted that a rise of less than 1 percent in published opinions still translates into an additional 1,823 printed pages in rulings and one extra bound volume of the states' official reports.

"If that's an aspect of the debate," Jessen said, "I quipped to somebody that it raises how much more publication the bench and bar can afford."

But not everyone thinks a 1 percent increase is worth bragging about.

Judith McConnell, the San Diego-based administrative presiding justice of the Fourth District Court of Appeal, said she was "a little surprised" that the increase wasn't at least 4 or 5 percent.

"The difference between 8 percent [the approximate average two years ago] and 9-point something percent," she said, "is something I would consider a slight increase."

The new publication standard was recommended by a 13-member advisory committee headed by California Supreme Court Justice Kathryn Mickle Werdegar. The rule encouraged the publication of appellate rulings "that may assist in the reasoned and orderly development of the law and to improve public confidence in the publication process."

Among factors justices can consider are: whether the decision establishes a new rule of law; modifies, explains or criticizes an existing rule of law; involves a legal issue of continuing public interest; or makes a significant contribution to legal literature. The biggest change, however, was telling justices to have a presumption in favor of publication rather than against it, as in the past.

The recommendation came after years of debate about whether publishing more rulings would be of any benefit. Proponents argued it made no sense that up to 92 percent of the state's annual appellate rulings had no precedential value, while some opponents claimed publication of all rulings would increase backlogs because judges would take more time to write decisions that would be citable.

The U.S. Supreme Court upped the ante for the state on April 12, 2006, by adopting a rule allowing lawyers to cite unpublished federal court opinions.

The Werdegar committee essentially offered a compromise. But two leading publication advocates contended this week that the compromise is nothing more than a sham.

"I want to point out that the Werdegar committee achieved its aim to look like it was addressing the citation problem without changing anything," Emeryville attorney Kenneth Schmier said Monday.

He and his attorney brother, Michael, who share an employment law office, believe that rather than adopt a rule that gives justices discretion to publish, the committee should have made publication mandatory.

"That bit of discretion seems to have swallowed almost all appellate work," Kenneth Schmier said. "What we want to know is, what are the characteristics of opinions that establish new rules of law or otherwise meet the criteria of [rule] 8.1105 that do not assist in the reasoned and orderly development of the law? Are they emotional? Expedient? Capricious? Or just plain wrong? If so, why are cases being decided according to them?"

Opponents of total publication, including California Chief Justice Ronald George, have pointed out that because most appellate rulings contain no precedent, they would just add clutter to an already opinion-filled world.

George and Werdegar were not available for comment. But Beth Jay, George's principal attorney, said Tuesday that a majority of appellate rulings simply "apply basic law to standard facts, and they are not going to illuminate anything for anybody.

"Published opinions," she added, "generally are supposed to be the cases that consider new issues or involve novel analyses and thus provide effective guidance to the courts and the public."

Jay, who was on the Werdegar committee, was happy to see that the publication rate under the new rule appears to be "trending upward," while noting that the small percentage jump in the first year also might indicate "a sea change was not required" to ensure that valuable opinions are published.

The reporter of decisions' figures on the number of rulings issued in the last two years by the state's six appellate courts which Jessen called an "informal compilation" didn't break down the number of published rulings issued by each court. A tally conducted by The Recorder which was rough because the newspaper didn't have access to every single unpublished ruling shows that all but one of the districts published more opinions under the new rule.

The biggest increase occurred in San Francisco's First District Court of Appeal, which, according to The Recorder's count, went from 127 published opinions in 2006-07 to 162 a year later, for an increase of 27.5 percent. Next was the Fourth District which has branches in San Diego, Santa Ana and Riverside jumping 22.9 percent from 218 published rulings in 2006-07 to 268 a year later.

Sacramento's Third District was the only court to drop by only one ruling, going from 152 to 151.

Fourth District Administrative PJ McConnell, who likes the idea of justices having discretion to publish, said it might take a little time before her comrades warm up to the new rule.

"It is a pretty significant cultural change," she said, "especially for an institution that's not used to radical change."