Confessions of a Non-Publication Troglodyte

By Gideon Kanner

It's deja vu all over again. A headline in this newspaper tells us that "Judges Debate Unpublished Opinions". Again. Unpublished appellate opinions have been around for some 45 years, but their legitimacy has never been fully accepted, and they are still a source of controversy. The idea of nonpublication of appellate opinions made its debut in 1965 as a response to the proliferation of Cal.App.2d volumes that were gobbling up law library shelf space while failing to deliver much new law. The cause of it was an increase in what Justice Leonard Friedman called "junk appeals" - mostly criminal cases that, while not quite frivolous, did not raise significant issues of law.

But nonpublication (later coupled with a rule forbidding citation of unpublished opinions) gave rise to problems. First of all, we think of appellate opinions as precedential, stare decisis and all that, so how could their holdings be brought to bear on trial litigation involving similar issues if one did not know about it and could not cite it? Second, experience demonstrated that embedded in the growing volume of unpublished and hence uncitable opinions there lay a disquieting number of significant holdings. Some went so far as to note explicitly that they were deciding issues of first impression (see quotations appearing in 25 U.C.L.A. L. Rev. at 896, n. 16). Also, the decision whether to publish a particular Court of Appeal opinion turned out to be highly subjective. By 1984, my colleague, Professor Gerald F. Uelmen and I discovered that publication rates varied widely among 2nd District divisions, ranging from 12.4 to 34.2 percent. See "Random Assignment, Random Justice," 6 L.A. Lawyer 10 (February 1984). In short, the nonpublication practice was generating problems, particularly as the proportion of unpublished Court of Appeal opinions kept rising. The Supreme Court added to the confusion when it began "depublishing" published Court of Appeal opinions, a practice that Bernie Witkin once described as an unsanctioned form of review, that plainly disapproved the work of the Court of Appeal without indicating what was wrong with it. But I'm getting ahead of the story.

Back in 1973, I got a telephone call from Ed Lascher, then one of the leaders of the California appellate bar, and the editor of the California State Bar Journal. Lascher wanted to devote an issue of the Journal to appellate courts, and he was looking for authors. Oh goody! As it happened, I had been pondering the problems engendered by unpublished opinions in my unmentionable field of law, so I thought that this would be a golden opportunity to voice some of my concerns in the hope of stimulating reasoned debate and in the end improving the judicial product. So I did. See, "The Unpublished Appellate Opinion: Friend or Foe?" 48 Cal. St. Bar J. 386 (1973).

By thus taking note of unpublished opinions that plainly failed to meet the non-publication criteria, and that ventured into uncharted legal territory, I thought I was performing a public service. Actually, I was rushing in where the proverbial angels fear to tread. My article was at first favorably received. Readers were heard from in large numbers, echoing my concerns. One of them was an obscure Deputy Public Defender from Northern California, named Rose Elizabeth Bird.

So I enjoyed my 15 minutes of fame, such as it was. I was even invited to a couple of judicial conferences. But under the surface, things were not what they at first appeared to be. Years later I learned from Bernie Witkin, that their Lordships in the 2nd Appellate District were so displeased with my scholarship, that they delegated a research attorney to go through all the unpublished opinions I cited, to see if I had misrepresented their contents. Ever the legal wit, Bernie was hugely amused by that. I was not. Still, that research attorney must have come up empty-handed because though in time I found myself criticized for what I said in that article (to say nothing of some things I didn't say but which were imputed to me anyway), no one accused me of misrepresenting the law. My problem, it appeared, was that I had depicted it accurately.

That my views were in the mainstream of opinions held by practicing lawyers became clear when in 1978, as part of a response to widespread dissatisfaction with nonpublication practices, I was appointed to the Chief Justice's Advisory Committee to review California's selective publication practices, and to recommend improvements. Interestingly, the committee heard from major legal publishers, and when we explained to them our concerns with the proliferation of decisions and resulting retrieval problems, they laughed at us, noting that they published everything, including Internal Revenue Service letter rulings, without experiencing any problems - and that was before computers.

To make a long story short, the Committee (composed of several appellate judges and experienced practitioners) did come up with a number of recommendations for improvements in non-publication rules. You can find all that written up in detail in the journal of the San Francisco Bar: M. Reed Hunter, "Not to Be Published in Official Reports (Or, the Truth About the Status of Selective Publication in California)," The Briefcase, Vol. 5, May 1980, at p. 10. Alas, the Supreme Court evidently did not think much of our endeavors because it largely disregarded our recommendations, though partial publication was eventually authorized.

That was not quite the end of it. Lawyers continued to complain about the persistent trickle of novel but unpublished opinions. Eventually, the State Bar became so concerned that it appointed a Committee on Publication Review (to review unpublished opinions and recommend that the Supreme Court order publication of opinions that appeared to meet publication standards), and named me as its Chairman, thereby forcing me to disavow my Marxist (Groucho Marxist, that is) conviction that I wouldn't want to be a member of any outfit that would have me. Still, I took on this unrewarding task, only to discover that the Supreme Court gave no indication of paying the slightest attention to our recommendations. During the committee's existence the Supreme Court ordered publication of only one (count 'em, one) unpublished opinion whose publication we recommended, but in doing so the court went out of its way to note that it was doing so at the request of the Court of Appeal, which had evidently changed its mind. I took the hint, and in what I am told was an unprecedented act of heresy on the part of any self-respecting bar bureaucrat, I requested that my committee be dissolved. The Bar Governors agreed.

So why go into all that now? Good question. Making good on Reed Hunter's 1980 prophecy, the controversy over nonpublication cum noncitation, has not gone away. In recent years two more reform efforts took place. One of them, in 2006, consisted of yet another committee and another refusal by the Supreme Court to reform nonpublication/noncitation practices, although it obverted the publication/nonpublication presumption. All Court of Appeal opinions would now be presumed to be publication-worthy unless the issuing court ordered them unpublished, which changed nothing substantively. Predictably, the core concerns of the practicing bar - the ban on citation of pertinent but unpublished opinions - went unaddressed.

In the words of this newspaper's coverage of these events, Justice Kathryn Werdegar who chaired that committee "said [that] most attorneys surveyed said the language of the existing rule must be changed to encourage publication. Most judges interviewed for the report, on the other hand, thought that opinions worthy of publication were already being published." No surprises there.

But on the federal side, things were not going well for noncitation hawks. After considerable controversy, in which 9th Circuit Judges led by Judge Alex Kozinski opposed modification of counterpart federal rules to permit citation of unpublished opinions, Federal Rule of Appellate Procedure 32.1, was promulgated, permitting their citation. Still, the nonpublication/noncitation rule remains controversial. According to this newspaper, the latest skirmish involves Justice Mark Simons of the 1st Appellate District, who favors citation of unpublished opinions for their persuasive value, and Judge - now Chief Judge - Alex Kozinski who continues to oppose citablitity of these opinions. (John Roemer, "Judges Debate Unpublished Opinions," April 16, 2010).

So it looks like the noncitation problem is not going away any time soon, even if this ongoing saga is now a spectator sport for me. The controversy goes on because lawyers steeped in the common law tradition resist the idea of unknowable precedents, as well as treating one set of litigants one way, and another set of similarly situated litigants another way, both purportedly under the same citable "law." They evidently are in agreement with Chief Justice John G. Roberts Jr.'s common sense observation that "A lawyer ought to be able to tell a court what it has done."

Gideon Kanner is professor of law emeritus at Loyola Law School and of counsel to Manatt, Phelps & Phillips.