To publish or not: Courts try selective approachAuthor(s): Faye A. SilasSource: ABA Journal, Vol. 71, No. 6 (June 1985), p. 28Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20758171 .

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LawScope

Reynoldson: This year the institute will either fly or fail.

Now or never? Justice Institute in limbo

It's now or maybe never for the pro

posed State Justice Institute, a top priori ty since 1978 with the National Confer ence of Chief Justices.

This year the institute probably will fly or fail, conceded W. Ward Reynoldson, chief justice of the Iowa Supreme Court and president of the conference. He said

the institute would fill a void in efforts to

improve law enforcement.

As authorized in State Justice Institute Act of 1984,15 U.S.C. ? 1127, passed last November, the new agency is an indepen dent, federally chartered, nonprofit cor

poration run by a board of directors, most of whom are state court officials.

If funded, the institute would provide a forum for the study of state and federal rules and other state-federal concerns

and would provide some support for pilot or experimental projects to enhance the

justice system.

To publish or not Courts try selective approach

Increased litigation, which has led to a voluminous number of court opinions, has prompted many courts to limit their

publication of opinions. Although selective, partial and non

publication are fairly common in many courts, particularly at the appellate level, these practices still provoke debate. Pro

ponents say it is unnecessary to publish opinions in cases that are not of prece dential value. Judges often issue per cur

iam opinions, affirming lower court rul

ings, which are not published or cited. This practice saves time and library shelf space, they say, adding that too many court opinions cannot be assimilated by the legal community.

But critics maintain that failing to pub lish opinions can undermine the system,

make the judiciary unaccountable and prevent lawyers from determining how courts rule. Unpublished cases often can

not be cited, despite having precedential value, they say.

In Florida, with an appellate caseload among the highest in the nation, appel late judges often issue "PCAs"?per cur

iam affirmances without opinion, accord

ing to John Beranek, former chairman of an appellate rules committee of The Flor

ida Bar. As the caseload has risen, so

have the number of PCAs. Beranek, a

former appeals court judge in West Palm Beach, is now in private practice.

The Florida Bar committee opposed the practice. Harry Lee Anstead, chief

judge of the Fourth District Court of

Appeal in West Palm Beach, believes selective publication is a better alterna

tive.

"It enhances the appellate process," Anstead said. "I feel better when reasons

[for reaching a ruling] are explained." PCAs are an institutionalized part of the Florida judicial system, and Anstead said he believes few lawyers and judges are aware of the selective publication option.

The California Supreme Court adopt ed a selective publication provision for its appellate courts in the mid-1960s, and now only 15 percent of written opinions are published, said Robert Formichi, re

porter of decisions for the administrative office of the courts. Up to 16 volumes of court decisions are published each year, he said, but to publish all opinions would take about 120 volumes. Court panels do

not publish cases that do not establish or

change a rule.

But even the 15 percent published pro duced "a gargantuan amount of facts," said Formichi, so the Judicial Council of California and the state supreme court in

1983 tried a one-year experiment with selective publication. Appellate judges were asked to limit the length of written

opinions but to make them complete with all legal and factual information. The concept was adopted on a permanent basis last year.

In Ohio, where nearly 90 percent of the courts' appellate opinions are not pub lished, the University of Akron School of Law library adopted a system in 1981 under which unpublished opinions from the Ohio Courts of Appeals are placed on

microfiche and issued quarterly to sub

scribers, said Paul Richert, law librarian

and associate professor of law.

These unpublished opinions can be cited but do not have binding status if a case is reviewed by the Ohio Supreme Court. More important, the opinions are

accessible to lawyers, said Judge Robert Black Jr. of the First Appellate District in Cincinnati. "It was ridiculous," said

Black of the large number of unpublished appellate opinions. "We were ending up with a lot of law that was not known."

?Faye A. Silas

Congress is considering whether to ap propriate the $9 million requested by the conference for the first year of the insti tute's operation. The Office of Manage ment and Budget has appeared cool toward the institute in the past and may not like the wording of the authorization that apparently allows the conference to

make the initial budget request. Attorney General Edwin Meese III

lent his support to the institute at a recent seminar held in Williamsburg for federal judges, said Justice Robert Utter of the

Washington Supreme Court.

Meese's support is a good sign and represents progress on funding, said

Meese: His support represents progress on funding.

28 ABA Journal, The Lawyer's Magazine

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