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Suing to Abolish Unpublished Appellate Court Rulings
Special to Law.com
October 22, 2007
Howard J. Bashman
Related: Bashman Archive
At the federal appellate court level, efforts to implement a rule permitting citation to unpublished and non-precedential opinions relied on persuasion and logic. Eventually, those efforts succeeded when Federal Rule of Appellate Procedure 32.1 recently took effect.One of the jurisdictions that apparently remains the most hostile toward abandoning its prohibition against citing unpublished opinions is California's state judicial system. Earlier this month, efforts to overcome the reluctance of California's appellate courts to allow unpublished opinions to be cited leapfrogged from the state courts to the federal courts when one young personal injury litigant filed suit in federal court, claiming that California's two-tier system of appellate decisions (published versus unpublished) violated his right to due process of law and denies equal protection.
The federal lawsuit follows on the heels of a California state court suit that was ultimately resolved by means of an unpublished intermediate state appellate court ruling. The state court lawsuit arose after teenager Joshua Hild was rendered legally and permanently blind when an on-duty Southern California Edison employee discharged a paintball gun in Hild's direction, causing a pellet to strike Hild in the eye.
Hild sued Southern California Edison in state court, asserting that it was liable for its employee's actions that rendered him blind in one eye. The lawsuit went to trial, where a jury found in Hild's favor and awarded him damages in excess of $700,000. The utility then appealed to the regional intermediate appellate court having jurisdiction over the venue where his case was tried. That court reversed the decision, holding that Southern California Edison could not be held liable because the person who discharged the paintball gun was not acting in furtherance of her duties as an employee when she did so.
Although Hild would presumably have been satisfied with an unpublished intermediate appellate court ruling that affirmed the jury's verdict, what he received instead was an unpublished intermediate appellate court verdict that reversed the jury's verdict. And that reversal is what gives rise to his recent federal lawsuit against California's state judicial system.
According to press coverage of the federal suit and a blog post by one of Hild's attorneys, the federal lawsuit is advancing at least two separate challenges. The first prong of Hild's attack posits that non-precedential, unpublished intermediate appellate court rulings are far less likely to receive further review in the remainder of the appellate process. The second prong appears to posit that Hild's effort to obtain affirmance of his personal injury award suffered due to his inability to cite to other existing unpublished decisions that presumably would have supported his argument in a way that existing published opinions failed to do.
Because I oppose rules that preclude citation to earlier appellate court rulings that have been designated as unpublished or non-precedential, I have considerable sympathy for Hild's arguments. Nevertheless, it is unlikely that the federal courts would hold that a state court litigant's federal constitutional rights are violated by a state court's use of unpublished and non-precedential opinions to decide appeals.
In my view, the preferred approach would be to have later panels of the court that issued an opinion decide whether or not the earlier opinion created precedent. But if an appellate court is successful at predicting which of its opinions create new law at the time of the opinion's issuance, it should not be surprising that the decisions that merely apply existing law are not as likely to be reviewed by a higher court that gets to pick and choose which cases to hear.
The second ground raised in Hild's federal court lawsuit -- that state courts should not be able to prevent citation to their earlier rulings -- strikes me as somewhat more persuasive. The rules governing what may be cited in appellate briefs filed in California state courts presumably allow citation to judicial decisions from other states, judicial decisions from other countries, and even to literary works such as those by Shakespeare or Lao Tzu. A rule that prevents citing to the issuing jurisdiction's own opinions in relevant earlier cases merely because those decisions have been designated as unpublished could be viewed not only as a First Amendment violation, but also as entirely irrational and thus violative of due process.
I don't anticipate that a federal court will be enthusiastic about meddling in California's state court rules governing the publication and citation of non-precedential rulings, but this unusual federal lawsuit recently certainly merits continued attention.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
