The Cal. Supreme Court's Advisory Committee on the Rules of Publication is seeking comment on the proposed changes to the Rule 976 of the California Rules of Court (a rule that governs publication of the appellate court opinions).
I filled out a survey on this issue a few months back, but am still very ambivalent as to whether the proposed changes make sense. But for my money, the bigger question is not whether the courts of appeal publish enough, but what is the quality of what is published and what is not published. I think most appellate practitioners would agree with me that the quality of our state published opinions is much more uneven than, let's say, in the 9th Circuit. While there are justices who are very thorough in their analysis and immensly entertaining in their writing, many are not. There are several key reasons for this and they would be a great topic for separate discussion. But back to the issue of rate of publication: if the opinions were uniformly better in quality, there would not be a need to publish more.
Also, I am a bit leary of the committee's draft conclusion that the presumption in favor of publication is not necessary and that the issue of citation to unpublished opinions as persuasive authority should be studied in the future. Again, the question for me is not so much whether we need to publish more, but whether status quo allows the courts to hide poorly written opinions behind a "non-published" status. Based on my experience with criminal appeals, the quality of the opinions drops off in unpublished opinions affirming criminal convictions (presumably, with the idea of "no harm, no foul"). So, perhaps, allowing more opinions to be published and some reference to unpublished opinions may go a long way in keeping the courts "honest" and forcing them to write better-reasoned opinions.
I agree. Opinions that are not published have less quality.
Posted by: Radi Rashid | April 22, 2009 at 17:35