23 January 2008

Unpublished Opinions

Most appellate court decisions in Colorado are unpublished. The decision not to publish several of those cases, on the very face of the caption, in tomorrow's batch of rulings from the Colorado Court of Appeals, seems questionable. Some cases with wide public interest ought to be published even if they don't state profound new legal principles. The cases in question are:

06CA1636 Brenda E. Tibbitts v. Michael Combs and Deborah Combs

A high profile multi-million dollar ex-polygamist case widely covered by the press in previously rulings.

06CA2432 Elton Deville v. Jim Betus, Loveland City Police Department, and City of Loveland

Probably a civil rights case.

06CA2511 Brad Farkas v. City of Boulder, a Colorado home rule city; Frank Bruno, in his official capacity as City Manager; Boulder City Council; Boulder Landmarks Preservation Advisory Board; Scott Woodard; and Mapleton Place LLC

A case of considerable interest to the general public in Boulder.

06CA2651 Aaron Fink v. Senate Majority Fund, a Colorado limited liability company and Office of Administrative Courts

A campaign finance case, a field where almost every case makes new law in some respect because there are so few decided cases. Also, notably, the Colorado Secretary of State doesn't list this as a decided case.


Andrew Oh-Willeke said...

Notably, both the cases involving governmental entities described above involve reversals of lower tribunal opinions, which is suggestive of the notion that the legal issues in the cases are not obvious and settled.

Anonymous said...

Farkas was not a reversal of the lower court. The judgment was affirmed.

In any event, it must be a VERY slow news day for you to complain about the Court of Appeals' decisions regarding which cases to publish. Do you think every litigation involving a public entity is of "wide public interest"? If so, you must not be very familiar with such litigation. Much of it is mundane and/or frivolous.

Andrew Oh-Willeke said...

I personally think that every case should be published, and that short of that, almost every case involving a public entity and almost every case involving a reversal of a lower court should be published.

Failure to publish opinions undermines the system of precedent and undermines confidence in government. If trial judges are ignoring law that is so well settled that it doesn't deserve to be published, that in itself is notable and should be published becaue it should be a rebuke to the trial judge. If a suit could impact tax dollars, yes, the public should know.

These decisions are being made with our resources and we the people should know precisely what is being done in our name.

Likewise, I take great offense at the Lexis-Nexus claim of copyright for state statutes.

Anonymous said...

so you have abandoned your overbroad claim that these particular cases are of "wide public interest," and have now substituted your true feelings (hidden before): all opinions should be published regardless of their interest or impact on the public. Please be honest next time.

Also, most appellate opinions affirm a trial court. Given your desire for an expose of trial court errors, I assume you have less of a demand that these affirmances be published, which -- again -- are most opinions. Once that is settled, it seems your grievance is about a small number of cases...hardly something that undermines the entire of foundation of precedent or spends millions of your tax dollars fancifully.

Another windmill please...

Anonymous said...

The graveyard of unpublished opinions conceals many a judicial felony. Consider this example, wherein the Supreme Court read the Tenth Circuit the riot act:

It may in the final analysis be shown that the District Court was correct to grant respondents’ motion to dismiss. That is not the issue here, however. It was error for the Court of Appeals to conclude that the allegations in question, concerning harm caused petitioner by the termination of his medication, were too conclusory to establish for pleading purposes that petitioner had suffered “a cognizable independent harm” as a result of his removal from the hepatitis C treatment program.

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Specific facts are not necessary; the statement need only “ ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.

The complaint stated that Dr. Bloor’s decision to remove petitioner from his prescribed hepatitis C medication was “endangering [his] life.” It alleged this medication was withheld “shortly after” petitioner had commenced a treatment program that would take one year, that he was “still in need of treatment for this disease,” and that the prison officials were in the meantime refusing to provide treatment. This alone was enough to satisfy Rule 8(a)(2). Petitioner, in addition, bolstered his claim by making more specific allegations in documents attached to the complaint and in later filings.

The Court of Appeals’ departure from the liberal pleading standards set forth by Rule 8(a)(2) is even more pronounced in this particular case because petitioner has been proceeding, from the litigation’s outset, without counsel. A document filed pro se is “to be liberally construed,” and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”

Whether petitioner’s complaint is sufficient in all respects is a matter yet to be determined, for respondents raised multiple arguments in their motion to dismiss. In particular, the proper application of the controlling legal principles to the facts is yet to be determined. The case cannot, however, be dismissed on the ground that petitioner’s allegations of harm were too conclusory to put these matters in issue. Certiorari and leave to proceed in forma pauperis are granted, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

Erickson v. Pardus, No. 06-7317, 551 U.S. ___ (2007), slip op. at 6-7.

A review of the case history of Erickson reveals a familiar pattern. The magistrate hands his opinion to the district judge, who affirms the decision, often without even looking at the file, in a boiler-plate opinion bearing no objective indication whatsoever that the judge has reviewed the case at all. The case is appealed to the Tenth Circuit, where it is handed to a clerk right out of law school with directions to ‘make it disappear.’ The clerk does what he is told (often, inartfully), and a judge signs off on it without even bothering to read his own opinion.

The work quality in unpublished opinions is uniformly abysmal, as one federal district court judge admitted in open court:

THE COURT: At a conference of the Third Circuit, the Court of Appeals defended their unpublished opinions on the ground that they’re not well reasoned, they don’t give them much thought. So it’s hard to say that that’s a well-reasoned opinion that has any precedential value.
MR. WINEBRAKE: Well, we concede—
THE COURT: It’s instructive on what they’ll do without much thought.

Sarah E. Ricks, The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit, 81 Wash. L. Rev. 217, 269 (2006) (emphasis added).

Judge Kozinski called unpublished opinions "inedible sausage"; pity he never explained why litigants themselves should be compelled to swallow their detritus.