ADVISORY PANEL NIXES CALL TO PUBLISH ALL APPELLATE RULINGS
By Linda Rapattoni
Daily Journal Staff Writer
October 19, 2005
SACRAMENTO -
An advisory committee studying California rules for establishing case law
precedents has rejected a proposal to publish all appellate rulings, opting
instead to expand and revise the current rules.
The Supreme Court Advisory
Committee's draft report on Rules of Publication of Court of Appeal Opinions
summarizes results of a survey of more than 250 state justices and attorneys.
The proposed amendments would
require that published opinions advance a new interpretation, clarification or
construction of a law or rule; explain an existing rule of law; or invoke a
previously overlooked rule of law.
The recommendations also
identify criteria that courts should not consider in deciding whether to publish
an opinion. These include the workload of the court, the presence of a
concurring or dissenting opinion on the facts, and the potential embarrassment
for litigants, attorneys or trial judges.
California Supreme Court Justice
Kathryn Werdegar, chairwoman of the 13-member committee, characterized the
committee's draft recommendations as "modest, but significant" because
they aim to ensure consistency in how appellate courts decide which rulings
should be published.
"California is unique in
the number of Court of Appeal decisions rendered each year (approximately
12,000), all adhering to the Constitutional requirement that opinions be in
writing with reasons stated," Werdegar said.
About 90 percent of rulings are
not published, meaning they cannot be cited as precedent.
The state's appellate courts
began posting all unpublished opinions on the Internet in 2001.
Werdegar said the committee was
surprised to discover that even with all those unpublished rulings in
circulation, there has been no increase in requests for publication.
The statistics show
"interested persons are not discovering unpublished opinions they believe
should have been published," she said.
The public is invited to comment
on the report through the end of the year.
Ken Schmier, an Emeryville
lawyer and crusader for the ability to cite unpublished opinions, said he was
dissatisfied with the draft report.
"Clearly, the committee has
made no recommendation that would bring California's practice in alignment with
basic principles underlying the rule of law, among which is that law must be
applicable to all similarly situated, not just to one litigant," Schmier
said.