Commentary: It's Time to Abolish
'Invisible' State Appellate Court Rulings

Howard J. Bashman
Special to Law.com
January 8, 2007

Our government, to the greatest extent practicable, should conduct its business in the open. That principle is central to the proper operation of a democracy. Yet in many state court systems, one particular class of public documents -- non-precedential appellate court rulings -- remain all but inaccessible to the general public, locked away in court filing cabinets but unavailable over the Internet, on Lexis or on Westlaw.

The time has come for state appellate courts to abolish their practice of hiding from public view the vast bulk of their rulings. In the not-too-distant past, some federal appellate courts were likewise guilty of this reprehensible practice of hiding from public view their non-precedential rulings. But then, the United States Congress passed into law the E-Government Act of 2002.

That law required all federal appellate courts to make available over the Internet not only their precedential opinions, but also their non-precedential ones. As a result, anyone with online access can now browse all federal appellate court rulings that issue each day.

Unfortunately, at the state court level, progress toward making non-precedential appellate court rulings more readily available has varied from slow to non-existent. Just last month, reporter Howard Fischer had an article in The Arizona Daily Star that noted a state ruling on the issue of whether lawmakers were "constitutionally required to provide more cash to certain public schools. To the public affected, however, the decision was essentially invisible because the three judges issued it as a 'memorandum decision.'"

That article goes on to report: "That designation means the legal reasoning and conclusions reached cannot be cited as precedent in future cases. It also means the rulings are not available to the public on the court's Web site. The only way to find out that the judges ruled at all is to go to the court's office and manually go through those files. And there are a lot of them. About nine out of every 10 appellate-court rulings are designated as memo decisions."

A similar situation exists in my home state, where the Superior Court of Pennsylvania -- the state's principal intermediate appellate court -- posts online its precedential rulings but makes available only to counsel for the parties its non-precedential rulings. And, as in Arizona, the bulk of the Pennsylvania Superior Court's rulings are non-precedential, which means the vast majority of that court's work escapes public scrutiny.

Efforts at attempting to persuade these state appellate courts that they should make their non-precedential rulings more readily available to the public are not succeeding. And the reason why these efforts are not succeeding should be familiar to those who have followed with interest the similar battle that occurred in the federal court system.

Judges are creatures of habit, and appellate courts' longstanding practice in general is to issue non-precedential opinions only to the parties and the trial court judge. Non-precedential rulings don't receive the time and attention that for-publication rulings get, and judges are often reluctant to facilitate access to work that is not their best. In addition, judges may be concerned that providing easy access to non-precedential rulings will encourage lawyers and litigants to cite to such decisions, in violation of state court rules that may discourage or prohibit doing so.

On the other side of the ledger is the massive loss to the public of the wealth of knowledge contained in the public records that non-precedential state appellate court rulings represent. This absence of information is particularly troubling in states like Arizona and Pennsylvania that hold elections on whether to retain appellate judges.

As I have previously written in a column criticizing the Pennsylvania Superior Court's refusal to make its non-precedential rulings more readily accessible: "The electorate should be able to base its decision whether to retain an appellate judge not only on the judge's published rulings but also on the judge's non-precedential decisions. Under analogous circumstances, when the U.S. Senate considers whether to confirm a U.S. District Judge to a post on a U.S. Court of Appeals, the Senate Judiciary Committee requests not only the federal district judge's published opinions, but his or her unpublished opinions as well. Pennsylvania's electorate should demand access to that same type of information." It took federal legislation to require all federal appellate courts to provide easy online access to their non-precedential rulings. Those of us who live or practice in jurisdictions where the state appellate courts refuse to provide easy access to non-precedential rulings should consider supporting state legislative remedies. If the U.S. Congress can force federal appellate courts to provide online access to all court rulings, whether precedential or not, surely state legislatures can force state appellate courts to do the same.

In 2006, the battle for the ability to cite federal appellate courts' non-precedential rulings ended in victory. In 2007, the battle for easy access to non-precedential state appellate court rulings should be renewed with vigor -- and if reason prevails, that battle, too, will end in victory.