BILL ANALYSIS
AB 2404
Page 1
Date of Hearing: April 25, 2000
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
AB 2404 (Papan) - As Introduced: February 24, 2000
SUBJECT : APPELLATE OPINIONS: PUBLICATION; CITATION
KEY ISSUE :
1)IS THIS BILL'S REQUIREMENT THAT ALL FINAL OPINIONS OF THE
CALIFORNIA SUPREME COURT, COURTS OF APPEAL, AND APPELLATE
DIVISIONS OF THE SUPERIOR COURTS BE MADE AVAILABLE FOR PRIVATE
PUBLICATION WORKABLE?
2)IS THIS BILL'S REQUIREMENT THAT ALL SUCH OPINIONS CONSTITUTE
PRECEDENT CONSTITUTIONAL?
SUMMARY : Requires that all final opinions of the California
Supreme Court, courts of appeal and appellate divisions of the
superior courts be made available for private publication, and
provides that such opinions shall constitute precedent under the
doctrine of stare decisis the same as opinions published in the
official reports.
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.)
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
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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
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.)
FISCAL EFFECT : Unknown
COMMENTS : Although the author has not provided this Committee
with any background on the bill, it is presumed that the bill's
intent is to allow all final appellate court opinions to be
citable. In order to achieve this objective, the bill requires
that all final opinions of the California Supreme Court, courts
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of appeal and appellate divisions of the superior courts be made
available for private publication, and provides that such
opinions shall constitute precedent under the doctrine of stare
decisis the same as opinions published in the official reports.
At the same time, the bill lets stand the California Supreme
Court's ability under Article VI, Section 14 of the California
Constitution, Government Code section 68902 and Rule of Court
979 to depublish an opinion certified for publication.
As a result, the bill creates a situation where the opinions
contained in both the Official Reports (which currently contains
opinions certified for publication under Rules of Court 976 and
978) and the private reporting system (which, under the bill,
would contain all final appellate court opinions) would be
considered citable and therefore of precedential value. Thus,
the body of law an attorney and a court would be expected to
know would expand tremendously under the bill. According to a
recent article entitled "On Publication, Opinions Abound," the
bill would result in a "? tenfold increase in the number of
legal opinions published by California's appellate courts ..."
("On Publication, Opinions Abound," Kenneth Livingston,
www.callaw.com/opinions/ stories/edt0419i.html.)
Constitutional Requirement that the Supreme Court Determine
Which Cases Should be Published . Article VI, Section 16 of the
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 Not About 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 published in a
separate private system and be citable. As a result, the bill
has the consequence of affecting the Supreme Court's discretion
to determine which cases are citable as precedent. The issue
this bill raises then is whether all final opinions of the
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courts of appeal and appellate divisions of the superior courts
should be citable as precedent. 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.)
Appellate Process Task Force . The Judicial Council's Appellate
Process Task Force, chaired by First District Court of Appeal
Justice Gary Strankman, has been charged with examining "the
manner in which appellate courts perform their functions." The
Task Force is required to "make recommendations to the Judicial
Council for how the functions, structure and work flow might be
revised to enhance the efficiency of the appellate process."
One of the issues to be addressed by the Task Force is the
publication of opinions.
ARGUMENTS IN SUPPORT : Stephen Barnett, Professor at Boalt Hall
School of Law, recently wrote in strong support of the need to
reform California's approach to publication in the San Francisco
Daily Journal . Barnett's own words succinctly and pithily
summarize the proponents' arguments in support of this
legislation:
Nonpublication of appellate opinions began in the
1970s as a response to the enormous growth in judicial
caseloads and the resulting demands on paper, shelf
space, lawyers' and judges' time and money. Today, 93
percent of California Court of Appeal opinions are
unpublished.
The system rests both on Court Rule 976, stating that
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no court of appeal opinion "may be published in the
Official Reports" unless it meets one of four stated
criteria (or unless the Supreme Court orders it
published), and on Court Rule 977, stating that an
unpublished opinion "shall not be cited" by a court or
party in any other case.
When these rules first issued, non-publication and
non-citation were nearly synonymous. If a case didn't
appear in the official reports, it pretty much wasn't
available, so of course no one could cite it. Today,
the term "unpublished" is largely a misnomer, with
unpublished cases often freely available online and
elsewhere.
So the issue now isn't non-publication under Rule 976;
courts could make all their opinions available and
still publish in the official reports only those they
considered important. The issue is the citation ban
of Rule 977. If attorneys think an unpublished
opinion will help their client, should the law bar
them from telling the court about it?
According to Barnett, there are "at least" six arguments which
would say no. He lists them as follows:
The non-citation rule lends itself to unequal
application of law. A court's unpublished decision need
not apply to a subsequent case presenting the same facts.
Indeed, the court in the second case can't even hear about
the first decision.
The public is likely to suspect that worse things are
going on. Even if publicly available, court opinions not
citable to other courts are in some sense secret and
therefore suspect. They rob the judicial system of
visibility, accountability; legitimacy and respect.
The claim that California courts publish all their
"important" opinions passes belief. Publication rates vary
widely among courts of appeal - from 7 percent to 27
percent in civil cases - and many unpublished opinions
prove important enough for state Supreme Court review.
Unpublished opinions comprise what one judge has called
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"a vast underground body of law." That law is more
accessible now than it used to be thanks to computers, but
it still gives an unfair advantage to institutional
litigants who have the resources to collect and use the
unpublished opinions, request publication or
non-publication in selected cases and otherwise shape the
subterranean law to their own benefit.
Most fundamentally, the non-citation rule flouts the
Anglo-American principle that the law is what the courts
have decided. Judicial power derives its legitimacy from
deciding cases. When judges say they alone can determine
the lawmaking effect of their decisions, they're claiming a
power more legislative than judicial. Barring an attorney
from telling the court about a prior court decision may
deny due process.
It also may infringe free speech. As Judge Richard S.
Arnold of the 8th U.S. Circuit Court of Appeals has
observed, "If we decided a case directly on point
yesterday, lawyers may not even remind us of this fact.
The bar is gagged."
Against these arguments, Barnett unabashedly asserts the Schmier
court "produced mostly a parade of straw men." Concludes
Barnett:
The fact remains ? courts should not have the sole
prerogative to determine which of their opinions may
be cited. They should not be able to decree, as they
now have, that more than 90 percent of California
Court of Appeal decisions are not law. To lift this
cloud from our judicial system, AB 2404 deserves
support ...
ARGUMENTS IN OPPOSITION : The Judicial Council opposes the
bill, 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. ? Conferring precedential value on
the many thousands of unofficially published cases would
add nothing to the development of the law. On the other
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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. Further, if privately published
cases constituted, precedent, there would be no way to
ensure that counsel would be able to locate and review all
related opinions.
The California Judges Association also opposes the bill, citing
the following reasons:
AB 2404 would create an unconstitutional statute,
usurping the Supreme Court's prerogative and violating
the separation of powers doctrine. (Article VI, section
14, of the California Constitution provides 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 . . . ." [Bold
italics added.].)
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.
Circulation of opinions not certified for
publication is a moot issue. Those opinions are
presently available as public records. No Rule or
statute prevents private publication or circulation.
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:
Article VI, section 14 of the California Constitution
provides discretion to the California Supreme Court to
publish those decisions the high court "deems
appropriate." Given that AB 2404 merely amends the
Government Code, it would appear this legislation is
unconstitutional. Aside from questions of
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constitutionality, CDAA is also opposed to this
legislation for policy reasons. Presently, Rule 976 ?
standards help ensure that only the most worthy and
important cases are published. AB 2404 would impose
no similar standards on private publishers. This
creates the very real potential that all appellate
decisions no matter how poorly decided or otherwise
inconsequential, would be published and given the
authority of stare decisis.
The flood of published opinions resulting from this
legislation would create tremendous problems in the
litigation of criminal cases. The body of applicable
caselaw 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
cuffing out those cases warranting publication and
avoiding the unnecessary publication of those that do
not.
The California Public Defenders Association also opposes the
bill, arguing that it is "concerned about the practical impact
this bill will have on its members, and for that matter, all
practicing attorneys throughout the state. ... Attorneys would
be required to review not only the official reporters to
determine the state of the law, but also a hodgepodge of
unofficial reporters with thousands more opinions that were
never intended to have precedential value in the first place."
In opposition, the California Attorneys for Criminal Justice
argues:
Deciding which interpretations of the law should be
published and therefore binding in other cases
properly rests with the Supreme Court. (See Calif.
Const., Art. VI, sec. 14.) If enacted, this measure
will be subject to constitutional challenges; it not
only conflicts with specific constitutional
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provisions, but it violates the separation of powers
by allowing the legislative branch to encroach on the
powers of the judiciary.
In addition, AB 2404 would greatly expand the body of
law attorneys and proper litigants are expected to
know. It will be virtually impossible to discern
which rule is the "right" rule. For every rule of
law, the opposite rule of law will exist. Some
factual situations are so common that the opinion
cannot possibly add anything to the existing body of
law. Often the analysis is illogical or simply
incorrect. This measure would completely blur what
little clarity and consistency we have in our
decisional law.
The Western Center on Law and Poverty cites concerns that the
bill "would give significant legal advantages to wealthy clients
and their lawyers who are better able to selectively publish and
cite decisions which benefit their interests. It would also
require investment of additional resources to do legal research,
and place attorneys with poorer clients and fewer resources at
greater risk of malpractice for failure to uncover obscure,
privately published precedent."
The Consumer Attorneys of California argue that:
? making all appellate decisions public will lead to
enormous practical problems. First, keeping abreast
of the large body of law that would be created under
such a system would be extremely difficult. The sheer
volume of cases would be impossible to follow.
Second, the volume of cases would lead to confusion.
Many appellate decisions that are not certified for
publication are fact dependent and should not form the
basis for precedent. This could lead to poor
decisions being used as precedent, especially in
rapidly developing areas such as employment products,
mass toxics and the more complicated areas of law.
While we understand the author's concern about the
increasing number of unpublished (and de-published)
opinions, we are concerned about the problems this
proposed solution would create.
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The California Defense Counsel fears that the bill's "approach
would result in total chaos, with opinions published by an
almost endless number of sources, all with precedential value.
The chances of missing a case to the detriment of our clients,
with resulting malpractice exposure, would increase greatly,
with no discernible offsetting benefit. Finally, we are not
sure exactly what problem the bill is attempting to solve - the
existing publication system works well, is understood by
practitioners, and is evolving as new technologies emerge."
The Attorney General's Office also opposes the bill, stating:
It is our opinion that this bill is in derogation of
the authority of the Supreme Court under article VI,
section 14, of the state constitution; it may be
beyond the Legislature's authority to prescribe the
precedential effect of decisions by purporting to
require application of stare decisis in later cases
heard by reviewing courts; it would cause a great
workload increase for the courts, thus delaying the
rendering of decisions; and it would impose a
tremendous burden on attorneys, including those in the
Department of Justice and other governmental agencies,
thereby delaying cases and increasing costs.
In opposition to the bill, the Los Angeles County Bar
Association Appellate Courts Committee states:
If all unpublished opinions are posted on the courts'
web sites, the justices and their staff will have to
invest extra time in drafting all opinions so that
they are minimally understandable to nonparties who do
not have the benefit of familiarity with the record
and briefs on appeal. Time spent polishing opinions
that offer no significant legal guidance beyond the
existing body of published precedent could be better
invested in deciding other cases expeditiously.
Moreover, if opinions are posted, it will likely be
more difficult to obtain a consensus among the
justices regarding the precise approach for arriving
at a result that all agree is proper. Again, if extra
time is spent to craft concurring opinions, costly
delays in the resolution of appellate litigation will
inevitably result.
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We aware of the contention that selective publication
gives institutional litigants an edge because they are
aware of some of the unpublished opinions. However,
from our committee's collective experience, we do not
believe that any one litigant or law firm has access
to unpublished opinions that offers a measurable
advantage over any other party. More importantly, it
is far from clear that indiscriminate posting of all
opinions, presumably on an internet-accessible site,
would remedy the perceived inequality between smaller
and larger firms or litigants; the reverse is likely
to he true. The resources of better-heeled litigants -
newer computers, faster internet connections, larger
staff, and more money to pay electronic services like
Lexis and Westlaw - may well give them a greater
ability than smaller competitors to plow through a
dramatically increased body of law for insights into
judicial trends or individual justices' thinking.
Posting all opinions raises a number of logistical
problems that will drain the court system's limited
monetary resources. We anticipate that commercial
services would step into the mix, seizing the
opportunity to compile the opinions and make them
available on a fee-paying basis. But without strict
court oversight, the sites would be unofficial and
potentially unreliable. In addition, fee-based sites
would undercut any benefit to litigants with limited
funds. ?
We already have an enormous common law base upon which
to build -- a base promised on the rule that decisions
announcing new or important rules of law will be
published. (See Cal. Rules of Court, rule 976(b),)
Multiplying that base ten-fold by granting stare
decisis effect to opinions that offer no additional
meaningful guidance to litigants would only require
courts and counsel to parse innumerable opinions in an
attempt to analogize, harmonize, and/or distinguish
the results in cases that differ in insignificant
particulars. This would hinder, not advance, the
development of a coherent body of precedent. ?
Issue #1: Is This Bill Constitutional? Many opponents of the
bill have indicated a belief that the bill's requirement that
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all final opinions of the California Supreme Court, courts of
appeal and appellate divisions of the superior courts be
published and citable as precedent is subject to Constitutional
challenge because it contravenes the Supreme Court's authority
to determine the precedential effect of opinions under Article
VI, Section 14 of the Constitution.
Issue #2: Is This Bill Workable? According to the Judicial
Council and other opponents, regardless of how one feels about
the citability issue, the mechanism created to address this
concern is completely unworkable because it creates a situation
where the cases contained in both the Official Reports (which
currently contains opinions certified for publication under
Rules of Court 976 and 978) and the private reporting system
(which, under the bill, would contain all final appellate court
opinions) are considered citable and therefore of precedential
value.
As a result, the body of law an attorney and a court would be
expected to know would be significantly greater under the bill.
The Los Angeles County Bar Association Appellate Courts
Committee states that "No one would escape this burden. Counsel
could not write briefs without undergoing the time-consuming
effort of researching the database of "persuasive" cases for
fear of missing key cases and being charged with malpractice;
courts could not write opinions without undertaking the same
effort."
Even one of the bill's strongest supporters, Professor Stephen
Barnett, notes that he "might question the language of the
present bill in one or more minor respects."
Issue #3: Is This Bill Timely? As noted above, the Judicial
Council's Appellate Process Task Force is currently studying
"the manner in which appellate courts perform their functions,"
including the issue of publication of opinions. The Committee
may therefore conclude that it is best to permit the Judicial
Council process to move forward on this issue prior to making
any Legislative reforms.
REGISTERED SUPPORT / OPPOSITION :
Support
Stephen Barnett, Professor of Law, Boalt Hall, UC Berkeley
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Jeff Brown, Public Defender of San Francisco
Committee for the Rule of Law
Terence Hallinan, District Attorney, City and County of San
Francisco
Peter Keane, Dean, School of Law, Golden Gate University
David Ratner, former Dean, School of Law, University of San
Francisco
San Francisco Democratic County Central Committee
Four Individuals
Opposition
Attorney General
California Attorneys for Criminal Justice
California Defense Counsel
California District Attorneys Association
California Judges Association
California Public Defenders Association
Consumer Attorneys of California
Judicial Council
Los Angeles County Bar Association Appellate Courts Committee
Los Angeles County District Attorney's Office
Western Center on Law and Poverty
Analysis Prepared by : Saskia Kim / JUD. / (916) 319-2334