'Now the bias seems to have switched and you have
to almost have a reason not to publish. Thats my way of looking at it.'
Justice H. Walter Croskey
Second District Court of Appeal
William Vickrey, director of the San Francisco-based Administrative Office of
the Courts, agreed, but said the raw stats might provide a glimpse of the
"While this data may be too limited to draw firm conclusions, it may
suggest a trend," he said. "Stronger conclusions will likely require
more data and further analysis."
Joseph Lane, clerk and administrator of the Second District, said a review of
the stats at the one-year anniversary would provide a much clearer picture.
"There are too many factors that go into play that can have an effect
from one month to the next," he said. "So we're not going to get a
large, close look at this until next year."
Meanwhile, the appellate justices are factoring the new rule into their daily
"Every time we get a case that we think is adding to the dialogue as
we say or setting a new rule or discussing something that's already been
published on, we talk about it," the Fourth District's McConnell said.
"If we feel we have something to say, we're going to publish it."
Second District Justice Kathryn Doi Todd, who also was on the advisory
committee, said newer justices are likely publishing more than the veterans.
And even after seven years on the appellate bench, Doi Todd considers herself
"We're still developing our publication sort of ethic, and so under the
new rules we might tend to publish more," she said. "I think that
people who have been on the court a longer time probably have already
developed the way they approach publication."
William McGuiness, the administrative presiding justice of San Francisco's
First District, seemed to agree. "It depends in part on how you handled
the matter in the first place."
GRANTING MORE REQUESTS?
Speaking of individual justices, the Second District's H. Walter Croskey has
the distinction of publishing the most rulings under the amended rules.
According to The
Recorder's count, Croskey published seven rulings
between April 1 and June 15 of this year.
He was closely followed by five justices with six published rulings each
the Second District's Paul Turner; the Fourth District's McConnell, Richard
Aronson and David Sills; and the Fifth District's Gene Gomes.
Croskey said he was surprised he led the pack. "I kind of chuckled when I
heard that," he said. "I have no explanation for you."
Croskey noted, though, that under the amended rule he and his colleagues seem
more inclined to grant attorneys' requests to publish a ruling that was
initially issued unpublished. "We give it a broader interpretation,"
In fact, by The
Recorder's reckoning the six appellate courts chose to
publish 41 rulings between April 1 and June 15 of this year that were
originally unpublished. That compares to 23 for the same time period in 2006.
Not only numbers have changed, Croskey said, but so have the justices'
"The difference in the new rules essentially is that, before you had to
provide literally a reason to publish," he said. "Now the bias seems
to have switched and you have to almost have a reason not to publish. That's
my way of looking at it."
McConnell, of the Fourth District, also noticed the number of civil and
criminal cases published by her court went up slightly compared to the same
time last year, while published juvenile cases dropped a bit.
Jessen, the reporter of decisions, said another figure stood out for him: In
the first three months of this year just before the new rule's April 1
effective date the appeal courts published 262 rulings. That was only
about a 3.5 percent increase over the 253 published over the same months last
year. That, he said, seems to indicate that there was only a small jump this
year before the amended rule took effect.
Jessen, who also served on the advisory committee that recommended the amended
rule, said his office will keep tracking the effects of the amendments, and
hopefully will have a clearer picture down the road.
"We'll be tracking this over time."