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Date of Hearing: May 6, 2003 ASSEMBLY COMMITTEE ON JUDICIARY Ellen M. Corbett, Chair AB 1165 (Dymally) - As Amended: April 29, 2003 SUBJECT : APPELLATE OPINIONS: NEW PUBLICATION AND CITABILITY
RULES KEY ISSUES : 1)IS THIS BILL UNCONSTITUTIONAL? 2)WOULD THE PROPOSED NEW CITABILITY RULES MARKEDLY IMPROVE OUR SYSTEM OF JUSTICE, AS PROPONENTS CLAIM, OR WOULD IT "MERELY CLUTTER OVERCROWDED LIBRARY SHELVES WITH INFORMATION UTTERLY USELESS TO ANYONE OTHER THAN THE ACTUAL LITIGANTS AND COMPLICATE THE SEARCH FOR MEANINGFUL PRECEDENT,' AS THE APPELLATE COURT HELD IN SCHMIER V. SUPREME COURT TWO YEARS AGO? SYNOPSIS This bill, though a modification of their prior proposals, continues the tenacious and long-standing effort of active Bay Area attorneys Kenneth and Michael Schmier and Professor Stephen Barnett of Berkeley's Boalt Hall School of Law to require all state appellate opinions to be available for private publication and to, under specified circumstances, be citable as court precedent. These counsel sponsored a similar measure in 2000 which was strongly opposed by the same parties, principally the Judicial Council, the California Judges Association, the California District Attorneys Association, and the Attorney General. That measure, AB 2404 by Assemblyman Louis Papan, failed passage by a vote of 3-9 in this Committee based upon two primary concerns. First, that the proposal was likely an unconstitutional incursion into the Supreme Court's constitutionally-vested authority under Article VI, Section 14 of the California Constitution, which reserves for the Court the power to determine which appellate decisions "it deems appropriate" for publication. And second, that such proposals calling for publication and some measure of citation to all the state's over 10,000 appellate opinions annually will cause an unreasonable burden on attorneys and the courts. This analysis, while recognizing there are some differences in the proponents' AB 1165Page 2
current measure compared to their proposal in 2000, suggests that the same concerns expressed by the Committee two years ago are triggered by the present proposal as well, especially in light of the Committee's receipt of an Oral Opinion by the Office of the Legislative Counsel on April 25, 200, similarly raising constitutional concerns. In support of the latest version of this measure, the sponsors take strong exception with any concern that it may be unconstitutional, stating, among other things, that AB 1165 would in no way disturb the present system of publication, and "Determining what effect case decisions will have on future law is a legislative judgment, as is making the future law itself." In opposition, the Judicial Council summarizes the views of the bill's opponents as follows: "Conferring precedential or persuasive value on the many thousands of cases not certified for official report publication would add nothing to the development of the law. On the other hand, requiring counsel to search for and review all appellate cases, whether or not officially reported, would place undue time and cost burdens on litigants, their counsel, and the courts." SUMMARY : Seeks to ensure all final opinions of the state's appellate courts are available for publication, and that beginning next year, all such opinions may be cited as precedent under the doctrine of stare decisis. Specifically, this bill would: 1)Require all final opinions of the Supreme Court, of the courts of appeal, and of the appellate divisions of the superior courts to be in writing and made available for private publication, in full. 2)Specify that these opinions constitute precedent under the doctrine of stare decisis the same as opinions published in the official reports and may be cited as precedent. 3)Make related, clarifying changes that all opinions of the Supreme Court, a court of appeal, and an appellate department of a superior court issued on or after the effective date of the bill shall be made available to public and private reporting services, electronically and without cost. 4)Provide that all opinions of the Supreme Court, a court of appeal, and an appellate department of a superior court may be AB 1165Page 3
cited to or by any court; and that opinions issued on or before the effective date of the bill that have not been designated for publication in the Official Reports shall have no precedential value, but may be cited for any persuasive value they may have, as specified. EXISTING LAW : 1)Provides, in the California Constitution, that "the Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person." (Cal. Const. Art. VI, Section 14.) (Emphasis added.) 2)Provides that all opinions of the Supreme Court shall be published in the Official Reports. (Rule of Court 976.) 3)Provides that an opinion of a Court of Appeal or appellate division of the superior court may be published only if it meets one of the following standards or the Supreme Court orders it published: a) The opinion establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies or criticizes an existing rule; b) The opinion resolves or creates an apparent conflict in the law; c) The opinion involves a legal issue of continuing public interest; or d) The opinion makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law. (Rule of Court 976.) 4)Provides that a court may certify for publication any part of an opinion that meets the standard for publication in Rule 976(b). (Rule of Court 976.1.) 5)Provides that an opinion of a Court of Appeal or an appellate AB 1165Page 4
department of the superior court that is not certified for publication may not be cited or relied on by a court or party in any action or proceeding except: (1) when the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel or (2) when the opinion is relevant to a criminal or disciplinary action or proceeding because it states reasons for a decision affecting the same defendant or respondent in another action or proceeding. (Rule of Court 977.) 6)Provides a process for requesting publication of unpublished opinions and for requesting depublication of published opinions. (Rules of Court 978 and 979.) 7)Provides that such opinions of the Supreme Court, the courts of appeal and the appellate divisions of the superior courts as the Supreme Court may deem expedient shall be published in the official reports. (Government Code section 68902.) 8)Held, in Schmier v. Supreme Court (2002) 78 Cal.App.4th 703, that "The broad constitutional and legislative authority granting the Supreme Court selective publication discretion manifests a policy that California's highest court, with its supervisory powers over lower courts, should oversee the orderly development of decisional law, giving due consideration to such factors as (a) 'the expense, unfairness to many litigants, and chaos in precedent research,' if all Court of Appeal opinions were published, and (b) whether unpublished opinions would have the same precedential value as published opinions." (Id. at p. 708.) FISCAL EFFECT : As currently in print, this bill is keyed fiscal. COMMENTS : This bill, though a modification of their prior proposals, continues the effort of active Bay Area attorneys Kenneth and Michael Schmier and Professor Stephen Barnett of Berkeley's Boalt Hall School of Law to require all state appellate opinions to be available for private publication and to, under specified circumstances, be citable as court precedent. These counsel sponsored a similar measure in 2000 which failed passage by a vote of 3-9. Constitutional Requirement that the Supreme Court Determine Which Cases Should be Published . Article VI, Section 16 of the
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California Constitution originally provided: "The Legislature shall provide for the speedy publication of such opinions of the supreme court and of the district courts of appeal as the supreme court may deem expedient, and all opinions shall be free for publication by any person." In 1966, Article VI, regarding the judiciary, was revised. Section 16, in particular, was renumbered as Section 14 and revised to read: "The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person." This Bill is About Citability, Not Depublication . As mentioned above, the bill does not directly amend the Supreme Court's ability to determine which opinions should be available for publication. Instead, the bill provides that all opinions be available for publication, with diverse new rules of citability depending upon the enactment date of the bill. The issue this bill raises then is whether all final opinions of the courts of appeal and appellate divisions of the superior courts ultimately should be citable as precedent after the enactment date of the bill, i.e., commencing next January. It does not directly limit the ability of the Supreme Court to depublish cases, so for those who focus on that concern, this is not the bill. Selective Publication in Other States . California, like 22 other states, has a system of selective publication of the decisions of the Court of Appeal and the appellate divisions of the Superior Court. There are eight states with rules that require that all intermediate appellate court opinions be published in the official reports. The remaining states have rules that fall somewhere in between. In the eight states that require publication of all appellate court opinions, the court has the ability to determine that the disposition of the case requires something other than an opinion, for example, a decision or memorandum opinion or per curiam opinion. (C. Flango and D. Rottman, Appellate Court Procedures, (Williamsburg, Va: National Center for State Courts, 1998) 139-147.) Opinions By the Office of the Legislative Counsel and the Attorney General's Office that Bill Likely to Be Found Unconstitutional: As noted above, the Committee, faced with
another proposal addressing the issue of citability and a debate over the Supreme Court's authority under Article VI, Section 14, AB 1165Page 6
asked the Office of the Legislative Counsel for an oral opinion whether this measure might violate the Court's constitutional prerogatives. According to the Office of the Legislative Counsel in an oral opinion delivered to the Committee and the author's office on April 25, 2003, the prior version of this legislation dated February 21, 2003, which similarly required appellate opinions to constitute precedent under the doctrine of stare decisis, would indeed be an unconstitutional encroachment into the Supreme Court's enumerated powers under Article VI, Section 14 of the California Constitution. Though not a formal opinion, the Office of the Attorney General also wrote the Committee that "It is our opinion that AB 1165 as enacted most likely would be found to be an impairment of the core power of the Supreme Court in violation of the separation of powers clause of the California Constitution (Cal. Const. art. 111, 3)." Co-Authors : The author notes the following Members wish to be
added to the bill as co-authors should it be subsequently substantively amended: Assemblymembers Hancock, Koretz, Longville, and Wiggins. ARGUMENTS IN SUPPORT : Stephen Barnett, Professor at Boalt Hall
School of Law, has spearheaded with the Schmiers this effort to require the courts to make all of their opinions citable. Barnett's own words succinctly and pithily summarize the proponents' arguments that it is "time to lift the veil of legal secrecy" on all court opinions. He states among many arguments that: The heart of AB 1165 lies in its simple provision that, from now on, when a California Court of Appeal decides a case and issues an opinion, that opinion, whether or not it is published in the Official Reports, may be cited by attorneys and courts in other cases... I daresay that most of the California public would be surprised to hear that California law now forbids attorneys to tell a court about cases -- indeed, 94 percent of the cases -- that the California Court of Appeal has decided. Our courts now are saying to lawyers, in the words of Judge Richard S. Arnold of the 8th Circuit Federal Court of Appeals: We may have decided this question the opposite way yesterday, but this does not bind us today, and, what's AB 1165Page 7
more, you cannot even tell us what we did yesterday. ["Federal Appeals Court Decisions May Go Public," New York Times, Dec. 25, 2002, p. A13.] Assembly Bill 1165 cancels this message; it would allow lawyers to tell courts "what [they] have done yesterday." The bill thus would bring into the light of judicial day the 94 percent of California Court of Appeal opinions that may not now be mentioned in a California court, no matter how important an attorney considers them to be to her client's case. The bill says nothing about the precedential weight, if any, to be given to these unpublished opinions. That question would be left to the courts to which the opinions are cited. Court of Appeal opinions in California are not binding on other Courts of Appeal in any event, so these opinions would not be "binding" precedents for other Courts of Appeal. The courts would decide whether they are binding precedents for trial courts (and the courts would be free to lay down other principles concerning the weight to be given to these opinions). This approach is modeled after that which exists ... in Texas and Ohio. The Committee for the Rule of Law also wrote the Committee in support of the bill stating that "Even if a never overruled, prior decision of our California Court of Appeal would exonerate us from civil or criminal liability, we are now prohibited to mention this decision in California state courts when the decision was ordered "Not Published" by the judges who wrote it (Cal. Court Rule 977)... Virtually all legal scholars that have considered this issue and many judges agree court rules that prohibit citation of unpublished opinions, like Rule 977, create unpredictability and randomness, remove accountability and debase the rule of law." ARGUMENTS IN OPPOSITION : The Judicial Council continues its years-long opposition to these measures, arguing that: The current rules for publication and citability best serve the public interest. Pursuant to the California Constitution, the California Rules of Court, Rule 976, establish the grounds for publication of appellate opinions in the official reports... All other AB 1165Page 8
appellate cases are available to the public from both the clerk of the court and the courts' website. Moreover, these cases are already privately publishable and indeed are published in unofficial reports. However, they cannot be cited as binding precedent nor can they be cited for persuasive value... Conferring precedential or persuasive value on the many thousands of cases not certified for official report publication would add nothing to the development of the law. On the other hand, requiring counsel to search for and review all appellate cases, whether or not officially reported, would place undue time and cost burdens on litigants, their counsel, and the courts. The California Judges Association also opposes the bill, citing the following reasons: The bill would create an unconstitutional statute. The number of opinions published in California is already staggering. Publication of all written appellate opinions would promote obfuscation and increase the complexity of judicial decision-making. Precedential use of all opinions for stare decisis purposes would monumentally increase costs of litigation both for the judiciary and for the legal community. (Both lawyers and courts would require costly and complex new legal research mechanisms.) In opposition to the bill, the California District Attorneys Association (CDAA) states: The flood of published opinions resulting from this legislation would create tremendous problems in the litigation of criminal cases. The body of applicable case-law would expand dramatically, requiring practitioners to undertake the virtually impossible task of, at a minimum, becoming aware of all such cases, if not actually reading them. Moreover, it would require prosecutor and defense offices to subscribe to all private publishing services at considerable public expense. CDAA strongly believes that discretion whether to publish appellate decisions soundly and appropriately rests with the California Supreme Court. The Court performs admirable work AB 1165Page 9
cuffing out those cases warranting publication and avoiding the unnecessary publication of those that do not. The Attorney General's Office also opposes the bill, stating that in addition to the fact that the bill would "most likely would be found to be an impairment of the core power of the Supreme Court in violation of the separation of powers clause of the California Constitution (Cal. Const. art. 111, 3):" We also believe that opening all opinions of the courts of appeal and the superior court appellate departments to citation as precedent dilutes the well-established and vital body of precedential case law for no useful purpose... Under current estimates less than 10% of decisions of the courts of appeal are published. Based on our experience in handling numerous appellate court cases, this office believes that the reason the vast majority of the appellate decisions are not published is because they do not: (1) establish a new rule of law, criticize or modify an existing an existing rule or apply an existing rule to a set of facts significantly different from those stated in published opinions, (2) resolve or create an apparent conflict in the law, (3) involve an issue of continuing public interest, or (4) make a significant contribution to legal literature by reviewing development of the common law or the legislative or judicial history of a constitution provision, statute or other written law. In other words, they have no precedential value as a matter of fact. This determination not to publish was made in most cases by the jurists who decided the case. Interested parties who believe a court overlooked the significance of a decision may petition the court rendering the decision and the Supreme Court to reconsider the original determination of the precedential value of a case. Unless there is reason to believe that many truly precedential decisions are not being published, there is no reason to require the publication of decisions that add nothing to the body of law supporting the rule of stare decisis. On the other hand, if AB 1165 were to pass, to ensure AB 1165Page 10
no relevant precedent was missed, attorneys would need to search a huge body of case law knowing that the vast majority of cases are valueless as precedent in the view of the very who decided them. Legal research would turn into a scavenger hunt for all cases supporting or opposing a legal point even though counsel would know many of the cases available for citation would be of little, if any, additional precedential value. The costs of legal representation in many cases would likely increase because of the additional legal research required. REGISTERED SUPPORT / OPPOSITION : Support Stephen Barnett, Professor of Law, Boalt Hall, UC Berkeley Jeff Adachi, Public Defender of San Francisco Committee for the Rule of Law Terence Hallinan, District Attorney, City and County of San Francisco Many Individuals Opposition Attorney General California Attorneys for Criminal Justice California Defense Counsel California District Attorneys Association California Judges Association Judicial Council Los Angeles County Bar Association Appellate Courts Committee Western Center on Law and Poverty Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
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