The Indiana Law Blog posted an excellent updated article on the status of citing unpublished opinions at the federal and state levels. Kentucky non-published opinions have long been available on Westlaw and have been online at the Court of Justice website for some time, so we did not have to address the transparency issue. There was very little opposition by the bench or bar to the publication of previously unpublished opinions and less to the prospective publication of all decisions. However, our appellate judges, with the rule change, will have a heavier burden and more responsibility, sentiments expressed by Arizona judges and which caused them to reject publishing all opinions.
"Appellate Judge Donn Kessler (Arizona) said there is one big reason he and his colleagues decide not to publish a ruling. 'A good percentage of the briefs we get are either extremely poorly written, or an issue is not properly presented, or the record is not there,' he said. Kessler said it would be wrong to put out a published decision, which then automatically could be cited as precedent, in those kinds of cases.
Ruth McGregor, chief justice of the Arizona Supreme Court, also is cool to the idea. McGregor, who was an appellate judge before being named to the state's high court, conceded there's something else at issue. Judges who are faced with 120 to 150 rulings a year just don't take the same amount of time in their rulings when they know they won't be published. 'You only have so many hours each day and weekend and night,' she said. 'There's only a certain amount of time and care you can take in decisions,' McGregor said. 'When they're unpublished, it allows a little more freedom. So long as you get to the right result you don't have to be quite so careful about the language that you're using.' "
Consider a Kentucky family law issue arising from the 1996 legislative amendment to KRS 403.190. Last year an unpublished opinion was rendered as to what this change meant. The decision was unpublished. While it still won't be precedent, on January 1, 2007 it may be cited and considered. We ordered the briefs and the issue was not even argued by the lawyers. Oral arguments were not requested nor held. No motion for reconsideration was filed by either party and no motion for discretionary review filed. We then ordered the legislative history and the legislative intent is abundantly clear and is contrary to the unpublished opinion. So, now we have a statement of law from the Court of Appeals which may be cited and considered where the court had no help from the advocates. As a practitioner, it will be interesting to see how such issues are argued when an opposing party cites an unpublished opinion. Arguing the legislative history is simple, of course, but what will be good techniques to show a court that the appellate panel issuing the unpublished opinion did not have the benefit of the arguments that you are now making and that should be dispositive? How can you make briefs or the record of an oral argument held in a different case part of your record or authority? Add to this the issue of page limitations on appeals briefs and we're entering a doozy of a time for creative advocacy.
I suspect we will see more call by the court for oral argument, increased judicial time spent writing opinions, and increased need for staff attorneys. If our dockets continue exponential growth without corresponding financial resources, we may need to explore further some system of ruling on appeals that is not all published or nothing published.