Bennett Quoted in Article Regarding Unpublished Court Opinions

St. Louis attorney files motion after unpublished opinion

Missouri Lawyers Weekly – Copyright 2007 Dolan Media Company
By Heather Cole

St. Louis attorney Laurence Mass was irked.

He had taken a legal malpractice case to the Missouri Court of Appeals Eastern District and received an order from a three-judge panel instead of a published opinion. Published opinions appear in caselaw books and on the court’s Web site and can be cited; memorandums such as the 10-page explanation that accompanied the order in Mass’ case don’t and can’t.

By using orders or unpublished opinions when it shouldn’t, “the Eastern District is creating an entire body of secret law, which is unknown to the general public or bar, is applied on an ad hoc basis, and risks losing the public trust and confidence in the judicial system,” Mass complained in a March 20 motion to publish.

An order or unpublished opinion is issued when appeals court judges decide that a ruling wouldn’t break any new ground, or set precedent. They can be a quicker way to dispose of the appeals courts’ hundreds of cases.

“There’s no need to have cases out there that say the same thing over and over,” said Western District Chief Judge Victor Howard.

The target of Mass’ disparagement, the Eastern District, makes more generous use of unpublished opinions than its sister courts in the Western and Southern districts, according to a Missouri Lawyers Weekly analysis of appeals court statistics in three fiscal years. In fiscal 2006, the Eastern District published 37 percent of its opinions, compared with 87 percent for the Southern District and 50 percent for the Western District.

Combined, the three districts published 52 percent of the 1,900 opinions issued last year.

While Mass’ comments in his filing may be unusually harsh public criticisms of state appeals courts’ use of unpublished opinions, he tackled a subject that some appeals attorneys have been grumbling about for a while.

They worry that the practice sometimes leads to the hiding of incorrect decisions from public view and the creation of new rules that are difficult for attorneys to research. In addition, if an appeals court decides a case doesn’t merit a published opinion because a ruling won’t set precedent, it makes it harder to convince the Missouri Supreme Court to take up the case, they say.

Even high-profile appeals can go unpublished.

Earlier this summer, the Western District in an unpublished decision affirmed the conviction of Ryan Ferguson in the 2001 slaying of Columbia Tribune Sports Editor Kent Heitolt. The conviction had been the subject of a “48 Hours” TV investigation after Ferguson’s parents launched a media campaign pointing to some apparent discrepancies in the testimony of his accuser.

Ferguson’s public defender was quoted in the media at the time as saying she expected a case of this magnitude to have a published opinion.

Anybody who has a concern about an unpublished opinion can seek to have it published, said Patricia Cohen, chief judge of the Eastern District. “That’s one way to address it.”

Still, it can be difficult to explain to clients if, after spending tens of thousands of dollars on litigation, they don’t get a true decision from the court and instead receive a memorandum opinion, said Bill Quirk, who heads up the appellate practice for Kansas City-based Shughart Thomson & Kilroy.

There’s a place for unpublished opinions, but Quirk said he’s occasionally seen them misused. “I think the parties are entitled to have a reasoned analysis of the case and a reasoned explanation from the court, and I think they don’t always get that under this memorandum procedure,” Quirk said.

Cohen said, however, equal attention is given to cases that end up with orders as to those with published opinions. “Sometimes there’s a difference of opinion between lawyers versus judges as to what’s a complicated case and what’s not.”

Eastern District Judge Clifford Ahrens said he tries to give both types of decisions equal amounts of time, but admits, “I do think on a published opinion I probably spend more time polishing it.”

Southern philosophy

When in doubt, publish.

Loosely stated, that’s the philosophy of the Southern District. Its view falls at the opposite end of the spectrum from the Eastern District, whose internal rule on publishing starts with the premise “an opinion should not ordinarily be submitted for publication.”

The different approaches are reflected in the districts’ published and unpublished opinion statistics. Clerks at the Western and Southern districts provided the numbers for published and unpublished opinions for the fiscal years 2001, 2004 and 2006. Those for the Eastern District were researched by counting the published opinions and orders listed on the court’s Web site.

In each of the fiscal years studied, the Eastern District published 37 percent of its opinions. The Southern District, on the other hand, published most of its opinions in those years. A 77 percent publication rate in 2001 was the lowest rate in the three years.

The Southern District issued considerably fewer opinions of either kind overall, with less than half as many as the Eastern District in 2006.

Comparing caseloads based on the total number of opinions would be inaccurate, and citing the caseload as a reason for the higher percentage of Southern District published opinions would be unfair, said Judge Jeffrey Bates, the immediate past chief judge for the Southern District. The Eastern District had twice as many opinions, but it also has twice as many judges than the Southern District, which has six, and more law clerks, he said. “If you’re talking about having the time to do something right, I hope in all our opinions, published or not, we have plenty of time to do something right.”

Bates chalks up the Southern District’s high publishing percentage to its philosophy. The district is usually reluctant not to publish an opinion unless it’s very similar to one on the books around the state, Bates said. “The goal is to makes sure trial judges and practicing attorneys receive guidance from us.” A small difference in the facts can sometimes make a big decision in how a case is decided, Bates added.

The Eastern District’s internal rule, meanwhile, says an opinion should meet one or more of several criteria in order to be published, including whether a case is a case of first impression, or the first time the court has decided an issue; whether an opinion would alter, modify or significantly clarify a rule of law; whether an opinion would apply a rule of law to significantly different facts; whether it would settle a conflict within the Eastern District or between the other districts; and whether it concerns an issue of “significant public interest.”

There are cases in a number of categories, such as employment security and workers’ compensation, that have facts that are not unusual, Ahrens said. “We’re getting an increasing number of cases that need careful review and a decision, but do not have any precedential value.”

In particular, the Eastern District handles a lot of criminal appeals that raise repetitive issues, Cohen said. Forty-one percent of the court’s decisions last year were in criminal matters, according to Doug Bader, court administrator.

St. Louis solo practice attorney Brian Bild contends, however, that unpublished opinions contrary to caselaw can set new rules or affect settlements in other cases. Bild wrote an article published in the July/August 2005 issue of the Journal of The Missouri Bar that said one such Eastern District opinion seemed to establish a new requirement for probate claims.

“What they’re doing is just being sloppy. They take their vote not necessarily having read the law, say, ‘So-and-so wins,’ and don’t have the guts to make it public,” Bild said in a telephone interview.

National comparisons

Whether or not an appeals court decision is published makes a bigger difference at the Missouri appellate court level than in the federal courts. That’s because a U.S. Supreme Court rule change that took effect in January allows unpublished opinions to be cited in federal appeals cases, which isn’t the case at the Missouri state court level.

Federal “unpublished” opinions also are easier to find – they appear on the courts’ Web sites. Missouri appeals courts’ memorandums do not, and are harder to research, although they are public documents.

An 8th U.S. Circuit Court of Appeals ruling in 2000 on a tax matter spurred the controversial rule change six years later. Jim Bennett, an attorney with Dowd Bennett who was one of the lawyers representing appellant Faye Anastasoff in her case against the United States, said the new rule expands for lawyers the number of cases they could find that are factually on point. “I like the new federal rule system and I think it works very well,” Bennett said.

However, without the unpublished opinions available through electronic research, “repeat litigants,” like the government, would have an unfair advantage because they would have a database of similar cases tried and won, Bennett said.

Several surrounding states, including Oklahoma, Iowa and Kansas, allow the citation of unpublished opinions. Kentucky changed its rule to allow their use at the same time as the U.S. Supreme Court. Other states, however, such as Illinois, Nebraska and Tennessee, don’t allow unpublished opinions to be cited in other cases.

Shughart Thomson’s Quirk also sees a contrast in the quality of state and federal appeals courts’ unpublished opinions. There’s not much difference between federal published and unpublished decisions, he said, but there can be between Missouri appellate court published opinions and some memorandum opinions.

Sometimes a memorandum opinion will have just a brief explanation and no case citations, Quirk said, and it wouldn’t be useful to cite in future cases even if it were allowed. “It’s not really a legal opinion, just a cursory explanation.”

There are differences between the publishing rates of other states’ appellate courts. The Eastern District appeals court did a study of unpublished opinions in the mid-1990s, then adopted some internal guidelines on the publication of opinions, said Ahrens, who was chief judge in 1996 and 1997.

“When this came up, the state of Missouri was close to the state of Texas in terms of the number of opinions it was publishing,” judging by the volumes of caselaw printed for the two states, Ahrens said.

Historically, Missouri appeals courts have published at a higher rate than other states, said Western District Chief Judge Howard, whose court slowly has increased its use of unpublished opinions. Half the district’s opinions in fiscal 2006 were unpublished, up from 47 percent five years before. The district had a high of 59 percent published opinions in 2003.

A 2005 National Center for State Courts study appears to back up Howard’s contention. According to the study, Illinois appeals courts published 982 opinions in 2004. That’s 20 fewer than the amount Missouri appeals courts published that year, even though Illinois appeals courts dealt with many more cases -more than 4,000 more than Missouri appeals courts.

That’s not much of a consolation for an attorney whose unsuccessful appeal took the form of an unpublished opinion, however. “It means it will make it less likely the Supreme Court will take it on transfer,” Mass said.

The Missouri Supreme Court accepts only about 10 percent only of transfers sought from the appeals courts, and doesn’t track how many that it accepts that stem from unpublished opinions. Bader estimated, however, that at least 25 percent of the Eastern District cases accepted by the Supreme Court last year had orders instead of opinions. “I think I’m being conservative,” Bader said.

Having an unpublished opinion does not make it more difficult to get the case accepted, Ahrens said. “If the Supreme Court believed the Court of Appeals got it wrong, I’ve never thought it would matter if it was a published opinion or memorandum.”

Mass’ bid to have the opinion in his legal malpractice case published was unsuccessful – then-Chief Judge Booker Shaw denied the motion without comment in an April 5 order. Mass appealed the case to the Missouri Supreme Court anyway, but the court turned it down May 29.

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