Unpublished Opinions

The Attorney General of California requested that it this be heard by the California Supreme Court. 

California Supreme Court refused to hear the above request for rehearing by the Attorney General on December 12, 2001.  California Case "#S101311, Jerry Wayne Morgan, Appellant. Petition for review DENIED.  The Reporter of Decisions is directed not to publish in the Official Appellate Reports the opinion in the above-entitled appeal, filed August 30, 2001, which appears at 91 Cal.App.4th  1324.  (Cal. Const., art. VI, section 14; rule 976, Cal. Rules of Court.)"  Taken from Supreme Court website.

Issue of the Unpublished Case

 Circuit Sticks to Its Opinion Policy

 Practicalities of Unpublished Decisions - New Jersey Law Journal

 Rules for Publication of Appellate Opinions

Law That Is Arbitrary Is Illegitimate

Selective Publication of Opinions: One Judge's View

The case of Jerry Wayne Morgan was published, and then the Supreme Court ordered that it not be published.  So it is different in that most cases are never published at the Appellate level.

From the California Courts at: 

Unpublished opinions of the California Courts of Appeal are posted here for 60 days solely as public information about actions taken by the Courts of Appeal.

              Caution: Rule 977 (a), California Rules of Court, prohibits courts and parties from citing or relying on any unpublished opinion in any action or proceeding, except in limited circumstances specified by rule 977 (b). Availability of unpublished opinions on this Web site does not constitute publication under California Rules of Court, rules 976, 976.1, 977, or 978. Opinions that have been certified for publication or ordered published pursuant to those rules are available here.

              Unpublished opinions are not protected by copyright.


California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977. 





Cornell Law Review

January, 1996

B. Limited Publication: Deciding Without Writing

The court's tangible work product also has changed dramatically in recent years. "Published opinions," Judge Jones wrote recently, "were once the hallmark of the appellate courts' work." [FN38] The traditional expectation was that an appellate decision would be expressed *282 in a written and fully reasoned opinion, and that the opinion would be published and added to the stock of precedent. [FN39] That expectation no longer exists. Rather, each circuit has a local rule identifying those opinions that it will publish. [FN40] Although the actual criteria differ among the circuits, the publication decision is based on the assumption that opinions which do not "make law" do not need formal publication; as a corollary, unpublished opinions are
said to lack "precedential value" and usually cannot be cited as precedent. Given this underlying assumption, it is hardly surprising that published opinions today account for less than a third of federal circuit terminations. [FN41]

The decline in publication is unfortunate because the traditional, fully reasoned written opinion [FN42] serves a number of vital functions. [FN43] For instance, a published opinion enhances predictability. Even if the opinion does no more than restate existing legal doctrine, it can show how the doctrine applies to different facts. Publication thus increases certainty by increasing the stock of precedents. [FN44] Publication also hardens precedents because it is easier for a court to ignore one inconvenient
precedent than ten. [FN45]

Publication also serves to hold judges accountable for their opinions. [FN46] Accountability encourages well-reasoned decisions. When a judge makes no attempt to provide a satisfactory explanation of the *283 result, neither the actual litigants nor subsequent readers of an opinion can know whether the judge paid careful attention to the case and decided the appeal according to the law or whether the judge relied on impermissible factors such as race, sex, political influence, or merely the flip of a coin. Perhaps few losing litigants will be persuaded by a carefully reasoned explanation, but that explanation will often reveal whether the judge treated the case seriously. [FN47] Moreover, full publication helps to insure that judicial opinions are readily accessible, certainly a necessary condition for the realistic evaluation of either a judge or a court.

Similarly, the signed opinion assigns responsibility. The author of a bad opinion cannot hide behind the shield of anonymity; blame, or praise- worthiness, is there for all to see. "By signing his name to a judgment or opinion the judge assures the parties that he has thoroughly participated in that process and assumes individual responsibility for the decision." [FN48] In contrast,
the unpublished opinion (or order) rarely has an author other than that noted Norwegian jurist, " Per Curiam." [FN49] In per curiam decisions, blame or praise is spread out among three judges with the pernicious consequence of diffusing the judges' responsibility and accountability. Judges who cannot be held individually responsible either for the reasoning or the result have far less incentive to insure that they "get it right." More accurately, given the increasing reliance on staff to prepare opinions, the anonymous judge has far less incentive to see that they get it right.

Non-publication also diminishes the possibility of additional review. For all practical purposes, the courts of appeals are the courts of last resort in the federal system; fewer than one percent of their decisions receive plenary review by the Supreme Court. The limited appellate capacity of the Supreme Court makes it extremely unlikely that it will review an unpublished
opinion. After all, a cogent explanation also makes it possible for a reviewing court to understand the case. [FN50] Without that explanation, the likelihood of discretionary review by an en banc court or by the Supreme Court decreases to the vanishing point. [FN51] Moreover, a reviewing court is far less likely to spend its own *284 resources on a case already determined to be without precedential value. Although review is very unlikely anyway, a litigant should not have the chances of review further reduced merely because a panel did not think the case worthy of an opinion.

The costs of non-publication are not limited to reduced predictability, accountability, responsibility, and reviewability. It should come as no surprise that unpublished dispositions are also dreadful in quality. In a study conducted fifteen years ago, we found that twenty percent of unpublished opinions in nine of the eleven circuits failed to satisfy a very undemanding definition of
minimum standards, and that sixty percent of the opinions in three circuits failed to meet those standards. [FN52] There is no reason to think that the situation has improved in the years since. It is no wonder, therefore, that former Chief Judge Markey of the Federal Circuit once told his Circuit Conference that unpublished decisions were "junk" opinions. [FN53] One cannot help but ask, however, whether the losing litigants thought of their claims as "junk," or whether the definition of "junk" has changed over the years. [FN54]

It is not difficult to understand why unpublished opinions are dreadful in quality. The primary cause lies in the absence of accountability and responsibility; their absence breeds sloth and indifference. Moreover, a judge's mastery of the case is
reduced when she does not publish. Every author knows that views often change as she actually begins to write and seek
support for what she has to say. Writing out an opinion helps the author to understand the problem, to see things she otherwise
would not see. [FN55]

*285 However poor the quality of unpublished opinions, they are Cardozoesque in comparison to the practice of issuing mere "Orders"-- dispositions that contain no explanation at all. [FN56] Orders fail any quality test. Their proffered justification is that it is unnecessary "to explain even to the loser, why he lost." [FN57] That statement is dead-wrong, even for the most frivolous
cases. Explanation is fundamental to our system of justice. [FN58] Its absence in the one-word Orders effectively converts the statutory appeal of right into a denial of a petition for certiorari; in both cases the decision maker has declined to explain its decision. The difference, of course, is that the Supreme Court has been given statutory discretion to deny certiorari without explanation, while the circuit courts are under a statutory duty to hear every appeal. [FN59]

A final cost of non-publication stems from the problem of unequal access. The circuit courts limit public access to their unpublished opinions by restricting their distribution [FN60] and prohibiting their citation as precedent. [FN61] These no-citation rules were designed to off-set the advantages of well-financed and institutional litigants who might possess private data banks of unpublished opinions. [FN62] That *286 hope has not been realized. Even though they cannot cite unpublished opinions, repeat litigants (the federal government is an example), are able to catalog them and use their arguments. They also may request formal publication of those unpublished opinions that they believe will make favorable precedent. [FN63] In other words, such repeat litigants have been able to skew the precedent- setting function by obtaining publication of a favorable set of unpublished opinions. [FN64] The negative effects of these practices, once again, bear most heavily upon the poor and the
weak. Once again, the losers are prisoner civil-rights litigants, disappointed social security claimants, and other under-represented litigants lacking both the resources to amass and catalog unpublished opinions and the clout and incentive to ask for publication of favorable precedents. [FN65]


Posted on Wed, Dec. 13, 2006  

Ruling to boost court scrutiny
By Fredric N. Tulsky
Mercury News

In a significant shift, the California Supreme Court adopted rules Tuesday encouraging the publication of a wider number of appellate opinions in legal journals -- a practice that could reduce errors of fact or law in such cases.

The court amended state court rules to abolish a longstanding presumption against publishing court cases.

The change, to take effect next April, ``creates a different mindset,'' said Beth Jay, chief of staff to the chief justice. ``It should tip the scales'' in favor of publishing cases of legal interest.

``I think this is a big step forward,'' said Michael A. Kresser, executive director of the Sixth District Appellate Project, a state-funded agency that coordinates the appeals of indigent criminal defendants.

The Mercury News' series ``Tainted Trials, Stolen Justice'' documented that locally, the unpublished opinions of the Sixth District Court of Appeal repeatedly misstated facts or legal principles and that those rulings -- no matter how faulty -- were routinely left unchallenged by the state Supreme Court.

Fewer than 5 percent of all criminal case appeals from the Sixth District, which covers Santa Clara, Santa Cruz, Monterey and San Benito, historically have been published. Unpublished opinions cannot be cited as legal precedents, and therefore are of little relevance to those not immediately involved in the case.

In its examination of more than 700 criminal jury trials over a five-year period, the newspaper found that the appellate court misstated facts or the law in 30 and, at times, the opinions ignored established law. At times, the court based its analysis on misunderstandings of the facts in ways that hurt defendants.

Legal experts have told the paper that unpublished opinions may tend to reflect less caution in writing.

Arlin Adams, a former judge of the Third Circuit U.S. Court of Appeals, said, ``Writing an opinion for publication often forces the writer to analyze more carefully alleged errors.''

In addition, published opinions are more likely to be reviewed by higher courts. Over the past decade, the newspaper found, the state Supreme Court reversed defense appeals in unpublished criminal cases only about twice a year out of the more than 3,000 requests it receives statewide for review.

Kresser said he thought the new rules would promote more consistency, both in decisions to publish cases and in the legal reasoning justices adopt. And he said greater publication would promote a more transparent court system. ``I believe the virtue of openness applies to the work of the appellate courts'' as much as any other institution, he said.

The high court's new rule requires publication if the opinion offers a new interpretation of the law, modifies or explains rules of law, or advances a new interpretation of a state law, among other factors. The Supreme Court also is requiring publication if a decision is not unanimous and the competing opinions significantly contribute to the development of the law.

When deciding whether to publish an opinion, the appellate courts are not to consider the workload of the court or the potential embarrassment publication might bring to a lawyer, judge or parties to the case.

Contact Fredric N. Tulsky at  rtulksy@mercurynews.com .  


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