LAW PRACTICE  •  Nov. 16, 2005
Unpublished Opinions: Oh, the Shame of It!

Forum Column

By Stephen R. Barnett
        The state Supreme Court's "Werdegar committee" on publication of appellate opinions - chaired by Justice Kathryn Mickle Werdegar and formally dubbed the Supreme Court Advisory Committee on Rules for Publication of Court of Appeal Opinions - issued its draft preliminary report last month. The committee didn't propose much, and its report probably won't do much to reduce the famous disparities in publication rates or demystify decisions on whether to publish.
        Between the lines, though, the report says a lot about California's judiciary, its chief justice and its last-ditch determination to keep unpublished opinions uncited.
        The committee sprang from a horse-trade between Chief Justice Ronald M. George and state Sen. Sheila Kuehl, D-Santa Monica. To get Kuehl to drop her bill that would have permitted citation of unpublished opinions - anathema to George and other California judges, though desired by many California lawyers - George agreed to name a committee to look into the often inscrutable standards by which Court of Appeal justices decide which opinions to publish.
        Those standards presently produce an average publication rate, statewide, of only 8.4 percent, and create interdistrict disparities such as 9.2 percent in the 1st District Court of Appeal versus 3.7 percent in the 5th District. Two-thirds of attorneys surveyed by the committee believe, in what may be a masterpiece of understatement, that the publication rules "are not uniformly followed overall."
        The Werdegar committee dealt gently with these matters. It declined to alter the existing presumption against publication (Court Rule 976(b)), and it helpfully found "neutral factors that explain why certain districts have higher publication rates than others" - a finding that's not unpredictable when six of the committee's 13 members are Court of Appeal justices, one from each district.
        Unwilling to do more than tinker with the standards for publication, the committee proposed factors that should not be considered: court workload, fact-based dissents or concurrences, and "potential embarrassment of litigants, lawyers, or trial judges." The committee evidently hopes that Court of Appeal justices will take the hint and boost the average publication rate back up to 15 percent or so.
        Why did this passive committee feel compelled to go even this far? The answer apparently lies in dismay at factors listed by justices in a committee survey as contributing to decisions not to publish. These factors included:
• Potential embarrassment of litigants or lawyers (listed by 39 percent of justices).
• Potential embarrassment of trial judge (37 percent).
• The tone or content of the dissenting opinion (25 percent).
• "The case is controversial" (20 percent).
        These results smart. They appear to confirm that non-publication and no-citation rules serve to bury opinions that the courts find embarrassing. The committee's hortatory solution, though, seems unlikely to produce much change. This is especially so because, while the committee points the finger at potential embarrassment of litigants, lawyers and trial judges, it apparently does not disapprove of what may well be the most common cause of non-publication: potential embarrassment of the appellate judges who decide the case.
        Meanwhile, the Werdegar committee was at pains to avoid saying anything about the citation of unpublished opinions. This was "the gorilla in the room," a source of "severe constraint" for committee members, one of them reported. (The committee's meetings and papers were secret, with Werdegar and George - who often touts transparency - turning down requests for access.) Thus, while the committee invited public comments (due Jan. 6) on its report, it stressed that its charge "did not include discussing whether all opinions should be citable" (committee's emphasis).
        One would have thought the committee would welcome public views on a question so closely connected to its assignment. The committee did discuss citation practices in other jurisdictions, such as the federal courts and New York - though only for the purpose of claiming "distinctions" and not for evenhanded comparison. The committee's report is one-sided throughout, as one would expect from its entirely George-appointed membership.
        Nevertheless, three issues involving citability do poke into the report.
        One is the "tracking" of unpublished opinions. Disclosing a practice never before made public, the Werdegar committee says it "learned that the Supreme Court's criminal and civil central staffs internally track issues in cases seeking review, whether published or unpublished, in order to identify inconsistencies." This is done with "internal computer programs, along with a numerical system for identifying issues."
        Does this "tracking" system violate the edict of Rule 977 that unpublished opinions shall not be "cited or relied on?" Probably not; to cite or rely on a case probably implies communication to some outside party, not just internal staff work at the court. But if court staffers can use unpublished opinions in their memos to the court on whether review should be granted, it may seem unfair that an attorney is barred from using - or distinguishing - the very same opinions in her petition, answer or reply to the court.
        The judges' claim is that unpublished opinions are not law; and yet here we have the Supreme Court itself using those opinions to determine which of them will become law.
        A second issue is raised by the Werdeger committee's survey question asking appellate justices whether they had "relied on" unpublished opinions. Fifty-two - half the appellate bench - said they had. That's admirable candor; the trouble is that Rule 977 says an unpublished opinion "shall not be ... relied on." Taking the matter to its extreme, the irrepressible crusaders Kenneth and Michael Schmier have filed a complaint with the Commission on Judicial Performance, charging the 52 judges with judicial misconduct.
        A word is not a crystal; and it may be, again, that "rely" in the Rule 977 sense requires communication to another party, not just study in one's own chambers. But most of the 52 judges said they relied on the unpublished cases "in order to consider the rationale or analysis used in a similar decision, or to ensure consistency with their own prior rulings, as well as those within their district or division."
        That sounds very much like the way published cases are used to make law. There's something basically inconsistent, if not hypocritical, in admitting such "reliance" while continuing to claim that unpublished cases do not make law.
        A third issue was "limited citation": the Werdegar committee took a survey asking appellate justices and practitioners what they thought of allowing parties to cite to the Supreme Court unpublished opinions from the same judicial district that arguably conflict with the case before the court. Fully 67 percent of the attorneys - and 28 percent of the justices - thought parties should be able to do that.
        This was an important finding, possibly leading to a significant proposal by the committee. Because of the taboo on citability, however, the committee was gagged from even discussing anything of the kind. All the committee felt it could do - and all it did do - was recommend "that the Supreme Court consider asking an advisory committee to evaluate [the] possibility."
        That would be wasteful, folding the committee's present tent and delaying change until George or some other chief justice unilaterally decides the time is right. In the meantime, with the recent approval by the U.S. Judicial Conference of a rule allowing citation of unpublished opinions in the federal courts, California stands increasingly isolated.
        Stephen R. Barnett is the Elizabeth J. Boalt Professor of Law Emeritus at UC Berkeley's Boalt Hall School of Law.

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