The Superior Court of Pennsylvania recently announced it has approved a policy change that, once implemented, will result in that court’s posting to the court’s website of all newly-issued, nonprecedential opinions not issued under seal, thereby providing free and easy access to all of that court’s decisions to the public, the news media and attorneys.

At present, as in the past, the Superior Court issues two different types of written opinions: (1) published opinions that the court recognizes as having precedential value and that are published by West in the Atlantic Reporter and are published online by Westlaw, Lexis and similar automated legal research services; and (2) unpublished memorandum decisions, which the court does not recognize as having precedential value and which do not appear in the Atlantic Reporter or (for the most part) on Westlaw, Lexis or similar automated legal research services.

The Superior Court for quite some time has posted its own published opinions on its website, but it has not previously posted unpublished memorandum decisions. Consequently, until the new access rules take effect, unpublished Superior Court opinions will continue to be readily available only to the attorneys who represent the parties in a case that the Superior Court has decided by means of an unpublished opinion.

In deciding whether to allow increased access to the Superior Court’s nonprecedential memorandum decisions, the judges had to balance competing concerns. From a judge’s perspective, more time and effort are devoted to preparing and reviewing published precedential opinions than are devoted to preparing and reviewing unpublished, nonprecedential opinions. Nevertheless, in my experience, it is not uncommon for a nonprecedential memorandum decision of the Superior Court to reflect a substantial investment of judicial effort.

At the same time, the judges of the Superior Court no doubt recognized that the unavailability of nonprecedential memorandum decisions on the Superior Court’s website and the other commonly used forms of legal research seriously impedes the public’s access to the work of the court, seriously impedes the media’s ability to accurately cover the work of the court, and can seriously impede an attorney’s ability to provide the best possible representation to his or her clients. A few examples may perhaps better explain these points.

Often, the Superior Court will issue a decision in a newsworthy case in the form of an unpublished memorandum opinion. When that happens, the news media that lacks a significant presence nearby the court’s prothonotary’s offices is denied easy access to the text of these rulings. As a consequence, the public at large ordinarily has no access to those newsworthy unpublished rulings.

The denial of easy access to the Superior Court’s unpublished rulings can also seriously hamper attorneys seeking to provide the best possible representation to their clients. To give just a few examples, Westlaw, Lexis and the so-called D&C Reporter allow attorneys to read a variety of common pleas court rulings on various legal issues. On occasion, it may be useful or necessary to cite to or rely on those rulings. Where the subsequent history of such a trial court ruling reveals that the decision was affirmed in part and reversed in part by a nonprecedential memorandum decision of the Superior Court, the advocate is unable to readily determine whether the part of the trial court ruling of significance to the client was upheld or overturned. And tracking down the answer to that question is often neither easy nor inexpensive.

Similarly, Westlaw now offers online access to briefs that have been submitted to appellate courts. But of even greater value than an advocate’s written arguments is the manner in which a court addresses a particular fact pattern under applicable legal precedents. Even if an advocate remains prohibited from citing to an unpublished memorandum decision of the Superior Court, having access to the reasoning and case citations on which a panel of the Superior Court relied in addressing and resolving a particular case would have great value to a legal researcher or appellate advocate.

The unavailability of the Superior Court’s unpublished decisions can also disadvantage attorneys who are solo practitioners or who work at smaller law firms, while giving an unfair advantage to attorneys who represent repeat litigants before the Superior Court or who belong to networks of attorneys who practice frequently in a particular subject area. For example, county prosecutors or attorneys working for other similar governmental bodies may frequently handle certain types of appeals before the Superior Court. In those cases, lawyers working for those parties will have access to a variety of the Superior Court’s unpublished rulings on the subject matters involved in those cases, while attorneys for the opposing parties who do not regularly practice in those areas will not have the same access. Similarly, lawyers who bring or defend against various types of tort suits frequently exchange the Superior Court’s unpublished opinions in the areas of interest to them, while attorneys who do not practice in those areas as often may never achieve the same access to such rulings.

Moreover, although Westlaw and Lexis do not ordinarily make the Superior Court’s nonprecedential rulings available online, an attorney (or anyone else with an interest in a case) has the ability to forward an unpublished opinion of the Superior Court to Westlaw, and Westlaw will then make the text of the opinion available online. In other words, attorneys and others now have the ability to influence which of the Superior Court’s unpublished opinions are available online at Westlaw and Lexis. That type of tampering in the marketplace of judicial decisions will disappear once the Superior Court begins providing free and easy online access to its unpublished opinions.

In the past, there were two main arguments against easy access to unpublished decisions. The first was that too many opinions were already crowding the published case law reports, and thus it was appropriate for judges to spare lawyers and others from having to grapple with those decisions that the judges believed lacked any precedential value. At present, however, the vast majority of all legal research is performed online, and the search methods attorneys regularly use serve to separate irrelevant rulings from relevant rulings. In the course of performing legal research as an appellate attorney over the past 21 years, I have frequently found unpublished federal appellate rulings that have pointed me in the direction of directly relevant published and precedential appellate court rulings that I have then relied on in arguing cases to appellate courts. In short, when it comes to legal research and case law availability, the more case law that is available to research, the better.

The second major objection that is sometimes raised is that judges are already horribly overworked, and making their unpublished opinions more readily available will only serve to increase the workload as they become hesitant to issue unpublished opinions that are not as polished and heavily researched as published opinions. This objection, which was voiced by some in the federal courts of appeals as an argument against the adoption of Federal Rule of Appellate Procedure 32.1 (allowing advocates to cite the unpublished opinions of federal appellate courts in briefs filed in those courts), has not proved true to any significant degree at the federal court level.

Likewise, there is no reason to believe that ensuring easy online access to the Superior Court’s unpublished decisions will cause any increase in the workload of that court’s judges. In my experience, the Superior Court’s unpublished opinions as a category already tend to reflect the devotion of a great deal of resources from the judges. Moreover, the Superior Court cannot currently limit the further dissemination of its unpublished opinions. Rather, the Superior Court’s previous refusal to post its nonprecedential decisions online has only resulted in unequal and unpredictable access to its nonprecedential rulings, to the prejudice of the public, the news media and the legal profession.

Now that the Superior Court is on the verge of authorizing online public access to its nonprecedential memorandum decisions, the Superior Court is laying the groundwork for eventually reconsidering and rescinding its internal operating procedure that prohibits, under most circumstances, citation to the court’s unpublished opinions in briefs and other court filings. (See Pa. Super. Ct. I.O.P. §65.37(A).)

On December 1, 2006, Federal Rule of Appellate Procedure 32.1 went into effect in the federal courts of appeals. Rule 32.1(a) provides, in pertinent part, that "a court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been designated as ‘unpublished,’ ‘not for publication,’ ‘nonprecedential,’ ‘not precedent,’ or the like" with regard to opinions issued on or after January 1, 2007.

Similarly, if and when the Superior Court were to amend its internal operating procedures to allow advocates to cite to its nonprecedential rulings, the Superior Court should give such a rule prospective effect only beginning on or after the date on which the court has begun to provide online public access to its newly-issued, nonprecedential rulings.

Although Rule 32.1 allowed advocates to cite to unpublished and nonprecedential federal appellate court rulings, the rule did not take any position on the dispute over whether an appellate court may or may not permissibly characterize a subset of its rulings as nonprecedential. In the five-plus years since Rule 32.1 took effect, federal appellate courts have continued to issue the majority of their opinions as nonprecedential rulings, and none of those courts has encountered any difficulties in denying precedential effect to opinions that have been issued as nonprecedential.

Finally, as an academic and philosophical matter, arguments continue over whether appellate courts should or lawfully may designate certain opinions as nonprecedential. Fortunately, those arguments have largely receded from view within the federal appellate courts in the aftermath of Rule 32.1′s adoption. In other words, now that unpublished federal appellate court rulings are readily accessible and can be freely cited in briefs filed in federal appellate courts, fewer and fewer objections to the propriety and lawfulness of unpublished opinions have been raised in the federal appellate courts.

The Superior Court deserves praise for making it far easier for the public and attorneys to access newly-issued, nonprecedential rulings and for laying the groundwork for possibly allowing, sometime in the near future, citation to nonprecedential rulings. •

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached by telephone at 215-830-1458 and via email at hjb@hjbashman.com. You can access his appellate blog at www.howappealing.law.com.