Appeal Courts Are Publishing More Cases
The Recorder -- July 19, 2007

Attorneys and judges who have long wanted the California appellate courts to publish more rulings should rejoice — at least for now.

Preliminary figures show that during the first 2 1/2 months after an amended rule on publication took effect April 1, the number of decisions published by the state's six appellate courts rose 35 percent.

Edward Jessen, the reporter of decisions for the California Supreme Court and the state appellate courts, this week confirmed The Recorder's findings that the number of published opinions increased from 194 between April 1 and June 15 of last year to 262 during the same period this year.

He called it "premature to draw any conclusions" about the long-term results, but he believes the amended rule on publication was the major reason for the initial rise. Having dismissed other variables such as court caseloads, he added, "We are unaware of any other factors that would explain the difference."

California Rule of Court 8.1105 was changed to give appellate justices broader discretion for publishing rulings. Among the factors justices now take into effect 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. One of the biggest changes was to replace a presumption against publication with one in favor of it.

The changes were recommended in a report (.pdf) issued late last year by a 13-member advisory committee chaired by California Supreme Court Justice Kathryn Mickle Werdegar. In announcing the rule amendments in December, the committee said the changes were "designed to encourage the publication of all appellate opinions that may assist in the reasoned and orderly development of the law and to improve public confidence in the publication process."

Fred Morrison, a justice on Sacramento's Third District Court of Appeal, said that while his court hasn't begun to analyze the amended rule's effect, he thinks it "does kind of encourage a little more publication."

Morrison, who served on the publication advisory committee, said the 11 justices on his court haven't met as a group to discuss the new rule, but that each three-justice panel will "often talk about the rule" to decide if publication is warranted in individual cases.

"If I want to publish more, I'll publish more," he added.

ACROSS THE APPEAL COURTS

The advisory committee report came in response to critics pushing to change the rules to allow lawyers to cite any court of appeal decision, published or not — a change recently adopted by federal courts.

The state's amended publication rule might not go as far as critics would like, but it seems to be making more rulings available for citation.

COURT BY COURT

For a handy comparison of the published opinions coming from each of the state's six appeal courts, click here.

(Your Cal Law login may be required)
The Recorder's count of published rulings between April 1 and June 15 of 2006 and 2007 — a period that coincided with the information available from Jessen — showed all six appeal courts had increases, though some much more than others.

Justice Werdegar said the numbers seem to indicate her committee's work is achieving its purpose, "ensuring that all opinions of value to the bar and
the developing law of California are being published. And the courts of appeal seemingly are being very conscientious about that."

The Second District — which hears cases from the counties of Los Angeles, Ventura, Santa Barbara and San Luis Obispo — had the largest increase in the first 2 1/2 months. Its 32 justices published 90 rulings during that span this year as opposed to 62 in the same time frame last year.

The Third District — which hears cases from 23 mostly rural Sierra counties — had the smallest increase, going from 31 during that period last year to only 32 this year.

Several individuals, including some justices, cautioned against giving the early figures too much weight. After all, they said, they account for less than three months of work and many justices are still trying to accommodate the new guidelines.

"In such a short period of time, most statisticians would say this is statistically insignificant," Justice Judith McConnell, the San Diego-based presiding justice of the Fourth District, 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.'
— 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 future.

"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 routine.

"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 a rookie.

"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," he said.

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' attitudes.

"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."
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