[ Please visit the updated version of this page at: https://cotin.org/unpublished-opinions-as-tools-of-deceit-and-lawlessness/ ]
As most of what is done by judges is hidden from public view, it can take years for a non-lawyer to discover the extent to which a case could have been mishandled through judicial incompetence or deliberate wrongdoing — or both. It can take brutally hard work to establish why, how and to what degree the truth about the background to a case was reversed, buried or bypassed in the conduct of the trial — and appeal, if there was one. It can take even more sweat, at immense expense, to ferret out the means by which the law was misinterpreted or flagrantly ignored by the judge or judges, by accident or design.
Worst of all is discovering why they know that they can usually get away with doing this.
A whole year went by before it occurred to me to look into the reason why the clerk who gave me the bad news about the First District Court of Appeal’s affirmation of the trial judge’s ruling against me said that it would have been better if the appellate justices’ opinion in Barron v. Meredith (No. A145849) — written by Needham, J. (Henry E. Needham, Jr.) — had not been marked ‘unpublished’.
The ostensible justification for this practice is to discourage over-citation: prevent lawyers from referring to overlapping cases that add little value to their arguments and impose unnecessary reading on their opponents and courts. Scales fell from my eyes as I read about the more likely — real — reasons why most opinions issued by California courts of appeal are stamped ‘unpublished’, and the hair-raising history behind this designation. An excellent 2011 paper on the subject*** by Rafi Moghadam explains how the label discourages the California Supreme Court — to which I submitted a petition for a vetting and reconsideration of the lower appellate court’s decision — from granting such requests.
There are layers and layers of irony about the label and Moghadam paper.
An opinion marked ‘unpublished’ cannot be used as a precedent — that is, cited or relied on in the future by lawyers and litigants for similar cases. That categorisation is supposed to make it virtually invisible. But, since the advent of the internet, it is effectively published worldwide almost immediately after it is issued — downloadable, free, on several internet sites that somehow obtain a copy. Deliberately warped and corrupted truth about you and your life, and misrepresentations if not outright lies about the law that applies to your case — issued by a court of appeal rubber-stamping the work of a trial judge who could have been dishonest, sloppy or unqualified — may be read by anyone.
Also, when they find this convenient, lawyers and courts now frequently use these supposedly unusable opinions to prepare and argue about cases.
Moghadam’s study, published in the journal of a leading California law school, was posted on the Social Science Research Network (SSRN) site, which was created to make scholarship available to everyone for free. But, try downloading a copy there and you will find a ‘Not Available for Download’ notice, something I have never seen in that spot before. Click on the ‘full article’ link beneath the abstract on the site of the Hastings Law Journal or the UC Hastings Scholarship Repository and you meet a page-not-found dead end. (Update on 11 July 2018: the obstruction at the law journal (but not SSRN) has been removed and the paper is now downloadable here.)
Perhaps certain legal authorities do not want people to know what this researcher found. These excerpts from his text — a bombshell that should be read in whole by anyone who cares about justice — make the probable explanation obvious:
In California, not all court opinions are created equal. Some are published, but most are censored. […] By rules of court, appellate courts decide for themselves whether their opinions should be published [… ]. Through … the “no-citation rule,” citation to unpublished opinions is prohibited. An unpublished opinion, under this strict rule, is effectively treated as nonexistent, as it may neither be cited nor relied upon in subsequent cases. […] This ability to constrain opinions reduces accountability for decisions by discouraging supreme court review. As a result, the appellate publication process lends itself to a perception of secrecy, evasion, and injustice.
The California Supreme Court typically intervenes to resolve splits among courts, to address important issues, or to correct far-reaching errors. Unpublished decisions in this system are less likely to get the supreme court’s attention.
[ … ]
An intermediate court [ such as a district court of appeal ] bent on reaching a particular outcome, or one unsure of the correctness of its analysis, can exploit the no-citation rule to discourage supreme court review. The mechanism for rendering opinions uncitable, which is loosely regulated, is dangerous, because it enables intermediate courts to commit error with impunity.
Whether by design or in practice, unpublished decisions are less accountable for error. If an unscrupulous court wants to defy controlling precedent, ordering its decision not to be published is a prudent measure. Odds are less than one-tenth of one percent that the supreme court subsequently will decide the unpublished case. This potential for lawlessness makes the practice of selective publication seem unfair, even dangerous. What an honorable court may think is a harmless act, the public may construe as a surreptitious attempt to nullify the law in order to bring about a certain outcome.
… In the court of public opinion … refusal to certify publication may be seen as an attempt to insulate a decision from scrutiny. Courts, under a mandate to maintain an appearance of fairness, must steer clear of practices that risk injury to their reputation. The practice of unpublishing or depublishing opinions involves accusations so serious, with benefits so comparatively minor, that any court engaged in it recklessly risks harm to its integrity.
[ Emphasis in bold is by COTIN. ]
‘Legal Fiction of the “Unpublished” Kind: The Surreal Paradox of No-Citation Rules and the Ethical Duty of Candor,‘ Seton Hall Circuit Review, 2012.