Appeal
Courts Publishing More, Barely
The Recorder
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
"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 Unpublished opinions, they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
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."