Justice in The Dark

THREE YEARS AGO A FEDERAL jury acquitted Vicki Lopez-Lukis, a former commissioner in Lee County, Fla., of bribery for letting her lover, a Goldman Sachs lobbyist, reimburse her for their personal phone calls. But, bizarrely, the jury convicted her of one count of using the mails to deprive her constituents of "honest services" in connection with the same alleged bribery. This didn't make any sense, so she appealed to the 11th Circuit Court of Appeals. But in a one-word decision--"affirmed"--the appeals court rejected her argument.

Blind justice? For Lopez-Lukis, more like justice in the dark. She has no idea what the appellate judges were thinking when they brushed aside the obvious inconsistency in the verdict. Forget further appeals. The Supreme Court rarely accepts cases for review--only 124 of 8,445 sent to it in the 1999-2000 season--and almost never accepts one if there is no published opinion to look at. Lopez-Lukis is serving a 27-month term in Coleman federal prison near Orlando.

Last year federal appeals judges disposed of 79% of the 26,819 cases they decided by issuing so-called unpublished decisions, up from 37% in 1977. Over 7% of the unpublished decisions consisted of a single word. Whether curt or long-winded, an unpublished decision isn't precedent. That means the judges can be sloppy. They are not accountable for illogic or inconsistency in the rulings.

"This is judges disobeying the law," says William Richman, a University of Toledo law professor who has studied the problem.

At last, one federal appeals court has declared war on the practice. In August, in a case involving a late-filed tax refund claim, a three-judge panel in St. Louis, Mo. branded unpublished decisions unconstitutional. Despite the ruling, the taxpayer lost her refund.

The reasoning behind this momentous decision was that judicial decisions are intended not just to resolve particular disputes but also to tell Americans what the law is. So every decision must be a precedent. Though that decision is itself a precedent only in the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska and the Dakotas), litigants in other federal courts are starting to cite it. The Supreme Court will likely end up ruling on the matter.

The shortcut system began in the late 1960s when judges were struggling to deal with an avalanche of social-justice litigation as well as a parade of pro se litigants from the jailhouse. True, the appellate backlog does get scary at times. But does this justify lazy law? "[Unpublished decisions] are not prepared with the same kind of exactness," admits Procter R. Hug Jr., chief judge of the 9th Circuit on the West Coast, though he contends that they are still sound.

Judges insist that they issue unpublished decisions only in simple, noncontroversial cases, where the answer is clear cut. The statistics say otherwise. Appeals courts issue unpublished decisions in 24% of the cases where various judges disagree so much that one writes a dissenting opinion, and in 37% of the cases where they're reversing the trial court.

The 9th Circuit Appeals Court recently saw proof that unpublished decisions mask plenty of inconsistency. The court had affirmed the conviction of Pablo Rivera-Sanchez, an illegal alien who sneaked back into the U.S. after being deported. His lawyer found, though, that the court had in the past issued 27 separate unpublished decisions applying three different rules to the same immigration issue.

Consider how unpublished decisions have nearly driven out of business Beehive Telephone, a Wendover, Utah-based rural phone company. Last year the Federal Communications Commission cut Beehive's rates by 66%. An appeals court, swayed by the FCC's claim that Beehive had made a procedural error that barred appellate review, refused to hear the case.

Beehive lawyer Russell Lukas dug up an earlier decision by the same court that said even if a company makes that error--which he insists Beehive did not--it doesn't disqualify an appeal. But Lukas couldn't cite one of the key cases--it was deemed unpublished. Completing the insult, the appeals court ruled against Beehive in another unpublished decision only one word long. "They can't justify what they're going to do, so they don't publish it," says Lukas, who works out of Washington, D.C. He asked the Supreme Court for review, but naturally, was denied.

Alcan Aluminum, the Ohio subsidiary of the Canadian-based giant Alcan Aluminium Ltd., was the victim of a court's unpublished opinion that directly contradicted its earlier decision in the same case. A federal court in Philadelphia held Alcan liable in 1991 for part of the cost of cleaning up Pennsylvania's Susquehanna River after a spill. An appeals court kicked the case back to the lower court, saying in a published decision that Alcan would be off the hook if it could show that its emulsion hadn't caused the pollution. Though Alcan proved that its waste hadn't caused the harm, the lower court still found it liable, applying a new and impossibly high standard. The company appealed again, to the same appellate court, but this time the judges batted it down with one of those one-word grunts. Penalty, $500,000.

There are better ways to deal with backlogs. Congress might appropriate the money to pay for more judges. Or perhaps shrink the overpowering role of federal law in our lives.

By the Numbers
Looking for Justice