ADVISORY PANEL NIXES CALL TO PUBLISH ALL APPELLATE RULINGS
By Linda Rapattoni
Daily Journal Staff Writer
October 19, 2005
An advisory committee studying California rules for establishing case law
precedents has rejected a proposal to publish all appellate rulings, opting
instead to expand and revise the current rules.
The Supreme Court Advisory Committee's draft report on Rules of Publication of Court of Appeal Opinions summarizes results of a survey of more than 250 state justices and attorneys.
The proposed amendments would require that published opinions advance a new interpretation, clarification or construction of a law or rule; explain an existing rule of law; or invoke a previously overlooked rule of law.
The recommendations also identify criteria that courts should not consider in deciding whether to publish an opinion. These include the workload of the court, the presence of a concurring or dissenting opinion on the facts, and the potential embarrassment for litigants, attorneys or trial judges.
California Supreme Court Justice Kathryn Werdegar, chairwoman of the 13-member committee, characterized the committee's draft recommendations as "modest, but significant" because they aim to ensure consistency in how appellate courts decide which rulings should be published.
"California is unique in the number of Court of Appeal decisions rendered each year (approximately 12,000), all adhering to the Constitutional requirement that opinions be in writing with reasons stated," Werdegar said.
About 90 percent of rulings are not published, meaning they cannot be cited as precedent.
The state's appellate courts began posting all unpublished opinions on the Internet in 2001.
Werdegar said the committee was surprised to discover that even with all those unpublished rulings in circulation, there has been no increase in requests for publication.
The statistics show "interested persons are not discovering unpublished opinions they believe should have been published," she said.
The public is invited to comment on the report through the end of the year.
Ken Schmier, an Emeryville lawyer and crusader for the ability to cite unpublished opinions, said he was dissatisfied with the draft report.
"Clearly, the committee has made no recommendation that would bring California's practice in alignment with basic principles underlying the rule of law, among which is that law must be applicable to all similarly situated, not just to one litigant," Schmier said.