Daily Journal - Apr 22, 2004
Courts Shouldn't Put Publishable Data in Unpublished Opinions
        Forum Column
        By Robert S. Thompson
        Given the manner in which the state appellate courts have administered the present regime of published and unpublished opinions, state Sen. Sheila Kuehl's pending bill to permit citation of unpublished opinions is on the right track. Consistency in doctrine is vital to the rule of law, but the existence of two separate bodies of law, one open and the other sub rosa, producing the bulk of the appellate decisions in the form of legal essays, makes inconsistency inevitable.
        It's ironic that inconsistency in doctrine would have been avoided if the appellate courts had administered the publication/no-publication program as designed. Opponents to Kuehl's bill would be well advised to focus on the lessons to be drawn from history, which teach that their objections are best met by the appellate courts administering the program as intended.
        On its face, the California process requires that Court of Appeal opinions not be published if grounded in settled precedent, save for a rare exception in which the opinion deals with an issue of continuing, as opposed to transitory, public interest. Witkin, "Manual on Appellate Court Opinions," 28-29.
        Counsel should have no motivation to cite unpublished opinions because of the availability of the pre-existing authority on which unpublished opinions are based. The very fact that a number of appellate practitioners seeks the end of the no-citation rule shows that the body of unpublished opinions includes data meeting the criteria for publication but being consigned instead to the unpublished dust bin. Examination of the intended function of opinions that are not published demonstrates that the data should not be there.
        The no-citation rule is part of a nationwide package of proposed appellate-court reforms proposed in the l960s. Recognizing that the intermediate appellate courts of the larger states were inundated with appeals beyond their capacity to cope and that many of these appeals in general and most appeals in criminal cases, were cut-and-dried, respected academics, including Bernard Witkin, undisputed guru of the California judiciary, proposed that the volume crisis be addressed by adding to the judicial capacity staffs of career research attorneys. Witkin.
        The call for unpublished opinions in the l960s was accompanied by Witkin's plea that these career research attorneys replace the traditional judicial law clerks serving one- or two-year stints, whose task was to check and digest the record as cited in the briefs, perform research as directed by the justice, and edit opinions written by the justice - but not to write opinions themselves.
        As Witkin put it, "[the] courts need not seek excuses for delegating part of the opinion-writing function to talented legal experts with superior legal training and experience in writing. It is the task of stating the reasons for the decision, not the authority to decide, that is delegated. No matter how elaborate or polished the opinion may be, the justice must make the final version his own opinion, because he is responsible for what it says."
        In practice, Murphy's Law conjoined with Gresham's law as Witkin's vision was carried out. Murphy's Law holds that what can go wrong will go wrong. Gresham's law postulates that, when a valuable and a base currency are equally acceptable, the base will drive the valuable out of circulation.
        Witkin's call for opinions written by staff attorneys of superior ability, while thrusting responsibility for the ultimate decision on the justice, creates a problem of understanding. While it can be read as the "superior" staff attorney drafting opinions that dispose of the case, with the justice assuming responsibility for the staff's work, it also can be misread as calling for the judge to decide the outcome and delegate to the experienced staff attorney the job of supporting the result.
        The first can trigger a staff-written opinion with language designed to educate the justice but unnecessary to the decision. The second turns the judicial craft posterior-backward, because rather than judicial reasoning compelling the result, the result drives the stated reasons. In either case, language in an unpublished opinion can be the grist for argument in a subsequent case if it can be cited.
        At this point, Gresham's law kicked in as it became perfectly respectable for appellate justices to sign off on unnecessarily long unpublished opinions or to determine a result with a staff attorney's unpublished opinion written with language out of the pattern of the law but required by the posterior-backward approach.
        No respectable voice in the California judiciary or the bar has openly criticized the use of rambling unpublished opinions or the posterior-backward approach to appellate judging.
        By no means do I suggest that this is the norm of California appellate judging. But scarce appellate time pressures the justices to accept staff drafts as written, rather than to edit them closely to the minimum necessary to decide the appeal. Some - I believe few - justices are so firmly predisposed to the result in some classes of cases that the result is predetermined, with the result driving the reasoning in the opinion. Some more, but few, justices, with a strong sense of fairness, sense stringent application of the judicial craft as an impediment to their vision of justice.
        Overloaded by the pressure of caseload, even the most conscientious and able justices are sometimes unable to give the detail of opinions the full critical attention they deserve. In these cases, nonpublication is attractive. In the first two instances the justice is aware of both the lesser attention to detail by the two other members of the appellate panel given to unpublished opinions and a reluctance of the Supreme Court to grant hearing in them. In the third instance, the conscientious justice is aware that undue time pressure may have resulted in erroneous or ambiguous language that should not be in the books, but the justice is required by the pressure to accept that risk and mitigate it by not publishing.
        In the end, there are very good reasons for the rule precluding citation of unpublished opinions. But there are equally good reasons to question the manner in which it is being administered by the state's appellate courts. The remedy is twofold. It lies first in the devotion of our justices to judicial craft and sufficient confidence in their judicial reasoning to feel comfortable with their opinions seeing the light of day where necessary to the pattern of the law.
        It lies second, and more significantly, in recognition of the purpose of the unpublished opinion. Unlike the published opinion, which both adds to the pattern of the law and informs the parties and counsel of the reason for the result, the opinion that is not published serves only the latter function. Witkin. Unpublished opinions should be no longer or more detailed than necessary to accomplish their purpose.
        No detailed exposition of the facts is required; a brief summary is sufficient. Points of law are best addressed in an opinion that is not to be published by a citation or two with no more than a very brief description of the content of the cited authority. Witkin. If necessary to fully inform the justices, staff-attorney product in a case that is not destined for publication can be accompanied by a more extensive internal memorandum to the justices.
        In the end, an optimum regime of appellate opinions, some of which are designed both to decide the appeal and to add to the pattern of the law while the bulk of which serve only the former function and are not to be published or later cited, is best achieved by the internal process of the appellate courts. The process itself is optimized by a system that produces unpublished opinions which appellate counsel will have no reason later to cite rather than by a no-citation rule alone.
        Robert S. Thompson, retired Court of Appeal justice and Legion Lex Professor Emeritus at USC Law School, is a member of the committee appointed by Chief Justice Donald Wright to examine the administration of the nonpublication/no-citation rule in the rule's early stages. He is co-author with John B. Oakley of "Law Clerks and the Judicial Process."