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A Superior Court panel has affirmed the court’s resolution barring litigants and the court from relying on unpublished, memorandum decisions.

Such decisions – which are non-precedential and not included in the volumes of published court opinions bound annually – are a “useful, although admittedly not ideal, tool for deciding cases while maintaining control of our time and the development of the law,” Judge Richard B. Klein wrote.

In Schaaf v. Kaufman, a published decision, the panel rejected arguments that the court’s rule violates the section of the state constitution investing the judiciary with the power to make law.

“[We] disagree that the Pennsylvania Constitution does not allow memorandum decisions – that is, judicial decisions that are non-binding and non-citable, except to the extent that the rules surrounding the law of the case doctrine require,” Klein wrote.

The decision Thursday was timely, with lawyers and judges nationwide anticipating what the U.S. Judicial Conference and Supreme Court might do with a proposed rule that would prohibit federal appellate courts from restricting the citation of unpublished opinions.

After hearings this month, an advisory committee to the Judicial Conference voted 7-2 for the rule.

Lawyers and judges from the San Francisco-based 9th U.S. Circuit Court of Appeals in particular have spoken out against the proposal, and Klein’s opinion last week echoed the feelings of 9th Circuit Judge Alex Kozinski, who wrote a letter to the advisory committee, urging it to snub the proposed rule.

In Pennsylvania, the Superior Court’s internal operating procedures state that “an unpublished memorandum decision shall not be relied upon or cited by a court or a party in any other action or proceeding. . . . “

The Schaaf appeal challenged an August defense verdict in a medical malpractice lawsuit. The defense had moved to strike the mention of an unpublished Superior Court opinion from the plaintiffs’ appellate brief.

The plaintiffs, Albert and Patricia Schaaf, resisted, contending that the “no citation” rule was unconstitutional under the Vesting Clause of the state constitution, according to the opinion.

The Schaafs relied on an 8th U.S. Circuit Court of Appeals decision from 2000 called Anastasoff v. United States, which held that barring litigants from citing unpublished opinions was unconstitutional under the federal section similar to the Vesting Clause, Article III of the U.S. Constitution.

Klein said the 8th Circuit’s reliance on Anastasoff was misplaced.

“The ‘judicial power’ referred to in Pennsylvania’s Vesting Clause is simply the power to decide cases. That is all,” Klein wrote. “Certainly we operate within the common law custom of judicial lawmaking, but that does not mean that we must make law (beyond the case at bar, that is) every time we make a decision.”

Put another way, just because courts have the power to make law “does not mean we must exercise that power in every case.”

In Anastasoff, Judge Richard S. Arnold concluded that the nation’s founders considered the doctrine of precedent an essential part of judicial power and intended it to be a limitation on the judiciary’s exercise of its power, Klein said. This analysis of history “puts the accent on the wrong beat,” Klein said.

The common law appellate courts that operated at the time the Constitution was written had a lighter docket compared with the “overwhelming crush” of cases state courts face today, Klein said, and “as things stand, the number of cases we review prevents us, as a practical matter, from writing each decision with sufficient attention to the wording for all of them to be binding law.”

“Although we give every case the attention necessary to render a decision, we cannot draft each decision with as great of care,” Klein said. “The wording of an opinion is nearly as important as the holding, since it will guide future cases. If every case were published, either the wheels of justice would be slowed intolerably or an innumerable amount of unintended loopholes would be created.”

The defense lawyer in Schaaf, Michael E. McGilvery of Young & McGilvery, said unpublished opinions seem to be the only way for judges to deal with the thousands of appeals before them.

“I think the system works fine the way it is,” he said.

The Schaafs’ lawyer, Craig Currie of Currie & McLafferty, said that if the court couldn’t handle all the appeals before it without resorting to unpublished opinions, “maybe we need a bigger court.”

“It’s frustrating if you find an opinion that’s directly on point and you can’t cite it. It seems grossly unfair,” Currie said. “I should at least be able to cite it – and let the court decide how much weight they want to give it.”

Currie said he intends to ask an en banc panel of the court to rehear the case.

Howard Bashman, an appellate attorney in Fort Washington, said that the general idea behind published opinions is that they decide issues of first impression – with judges taking more time to carefully and thoroughly write out the opinions.

Unpublished opinions should be employed for deciding routine cases involving fact patterns that commonly recur, Bashman said.

Bashman said litigants should be able to quote unpublished opinions back to the court that decided them.

“At a minimum, if appellate courts issue decisions that are binding on the parties in front of the court, these decisions should be able to be cited back to the court in later cases – whether precedential or not.”

The 3rd U.S. Circuit Court of Appeals, for example, has allowed litigants to cite its unpublished opinions in briefs and at oral arguments in recent years.

The U.S. Circuit Court of Appeals for the District of Columbia issued a local rule in 2002 saying that its opinions decided in 2002 and after – published or unpublished – would be binding precedent.

A problem that can crop up, Bashman said, is courts relying too much on the unpublished option.

In the Superior Court, it happens regularly, Bashman said.

“It’s depriving the public of useful resources in the law by saying these cases can’t be cited back to them.”

The time and detail that the Superior Court puts into some of its unpublished opinions would seem to suggest it could permit the opinions to be cited, Bashman said.

For the most part, unpublished opinions from both federal and state appellate courts are deemed “unpublished” because of the skeletal, incomplete summary of facts they provide, explained Arthur Hellman, who teaches constitutional law and federal courts at the University of Pittsburgh School of Law.

Hellman said courts that don’t allow citation of unpublished opinions are “misguided,” noting that most courts across the country are moving away from no-citation rules.

“Judges can deal with citations one case at a time,” Hellman said. “Ones they don’t want to deal with, they don’t have to.”

As a practical matter, Hellman said, “judges should be willing to disregard or not follow unpublished opinions, because, if all you have is a skeletal or incomplete statement of the facts, there’s a limit to how much you can use that case.”

Often, lawyers won’t cite unpublished opinions because they’re telling the judge they didn’t find a published opinion to support their position, Hellman said.

“People forget that unpublished opinions should be used only when you have a routine application of existing law,” Hellman said. “Ideally, if the system’s working as it should, every proposition of law in an unpublished opinion should be citing a binding authority in a published opinion.”

In his opinion, Klein expressed concern that small firms and solo practitioners would have a hard time getting access to unpublished opinions, which the Superior Court doesn’t provide online. (Its sister court, the Commonwealth Court, and the 3rd Circuit both provide their unpublished opinions on their Web sites.)

Klein said this would give wealthy law firms an advantage because they would be able to develop huge databases of unpublished cases – a problem, he added, that would not be alleviated by online databases such as Westlaw and LexisNexis.

“Again, only those with the funds to pay for the access would be able to survey the unpublished decisions,” Klein wrote. “And this says nothing of the time required to wend through the bottomless pit of cases or what such research would cost. The time factor similarly militates against publishing all our decisions in bound reporters.”

But Hellman said that sooner or later, all courts are going to have to deal with the reality of today’s technology.

“Everybody has this access,” said Hellman.

Most courts’ unpublished opinions are available online or through one of the electronic databases, and most lawyers have access to the Internet either at the office or through the public law library, Bashman said.

“The issue of lack of access is really falling by the wayside,” Bashman said. “There’s no reason the Superior Court shouldn’t make its unpublished opinions available online.”

Last year, the Superior Court filed 5,026 opinions. Ninety percent of those were unpublished memorandums, according to the court’s Web site.

Senior Judge Peter Paul Olszewski and Judge Seamus P. McCaffery also participated in the Schaaf decision.

(Copies of the 20-page opinion in Schaaf v. Kaufman , PICS No. 04-0628, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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