MORE PUBLISHING ON HORIZON?
San Francisco’s First District Court of Appeal publishes the largest percentage of its rulings, while Fresno’s Fifth District publishes the smallest among the state’s appellate courts.
That statistic � and plenty of others � were included in a report released (.pdf) by the state Supreme Court last week that could lead to the publication of more appellate opinions each year.
The 60-page report (.pdf), drafted by a committee overseen by Justice Kathryn Mickle Werdegar, set new guidelines for publishing court of appeal rulings. Appeal court justices will now be asked, among other things, to decide whether the ruling establishes a new rule of law; modifies, explains or criticizes an existing rule of law; involves a legal issue of continuing public interest; or makes a significant contribution to legal literature.
In addition, they are forbidden from taking into account the court’s workload or the potential embarrassment of anyone involved in the case, including litigants, lawyers or judges.
The report, meant to encourage consistency, could result in the publication of more rulings following years of high court encouragement to keep most appellate opinions unpublished.
The report indicates that, statewide, only about 8 percent of appellate cases were published between 1999 and 2005. The First District led the way with an average publication rate of 9.3 percent, while the Fifth District published only about 3.9 percent of its rulings.
Los Angeles’ Second District had the second highest rate at 8.1 percent, followed by Sacramento’s Third District at 8 percent, the Fourth District � with branches in San Diego, Santa Ana and Riverside � at 7.4 percent, and San Jose’s Sixth District at 5.2 percent.
The report notes that “the seemingly higher publication rate in District One can be attributed to the lower workload in this district, and the seemingly lower publication rate in District Six can largely be attributed to the higher workload in this district.” This differential may arise because published opinions take more time to craft than unpublished rulings, the report posits.
It also implies that the Sixth District’s workload is greater because it has far fewer justices than the First District.
Publication rates also could be affected by location, the report says.
“Larger, urban districts, such as District One in San Francisco and District Two in Los Angeles,” it concludes, “tend to decide cutting-edge issues before smaller districts do, simply by virtue of their larger pools of cases.
“Smaller, more rural districts, such as District Five, that review the same issues later,” the report continues, “may be less inclined to publish because another court has already spoken.”
The report also points out that all six appellate courts publish more of their civil rulings than criminal or juvenile opinions. Overall, the courts publish 14.6 percent of their civil rulings, but only 4.1 percent of criminal and 3.1 percent of juvenile ones.
The report also found that very few of the unpublished rulings ever lead to state Supreme Court opinions.
“Of the approximately 92 percent of cases overall that were not certified for publication,” it stated, “only one-tenth of 1 percent resulted in opinions issued by the Supreme Court.”
� Mike McKee
HOW NOT TO HELP YOUR DEFENSE
A recent decision by the First District Court of Appeal � upholding that recorded phone calls made from jail can be used as evidence against defendants � has Contra Costa County’s public defender ready for a fight.
In the case against David Windham � a man charged with assault in a domestic violence case last year � the court rejected his argument that the trial court should have suppressed the recorded conversations of his calls to the woman he was being prosecuted for hurting.
Public Defender David Coleman III, who represented the defendant in People v. Windham, 06 C.D.O.S. 11403, said the First District’s decision was a “fairly unusual move,” given that the court had recently granted a petition for rehearing.
“My reaction can be characterized by three words that begin with the letter D,” Coleman said. “The first is disappointed. The second is dismayed. And the third is determined to seek review in the California Supreme Court.”
Over a period of several months while Windham was in custody awaiting trial, he repeatedly used jail telephones to call the woman he was arrested for assaulting. And in 12 of those recorded conversations, he referred to the incident that led to his arrest, according to court papers.
Coleman argued that the recording and disclosure of the recordings violated the California Invasion of Privacy Act, while the prosecutor, Supervising Deputy Attorney General Rene Chacon, pointed to an exception in the Privacy Act for law enforcement.
“The jail regularly tapes inmate calls for security reasons,” Chacon said. “Everything that occurred consistent with that security rationale was within the law.”
� Millie Lapidario
