Of some surprise to me, Justice Hecht is reporting that perhaps a majority of the intermediate appellate court judges are not actively fighting the proposed amendments to Rule 47. While I did not get to attend last Friday and Saturday's meetings of the SCAC, it seems the move for this change is gaining ground. I think this would be one of most significant changes in the rules in a long time. I am just not sure exactly what the effect will be, and it may vary widely from court to court. Since the new rule will not eliminate Judge Per Curiam's rulings, I am not sure how much accountability will be fostered. I also cannot help but believe the new rule would require more time on the part of the courts, meaning their backlog will further increase or the opinions that would have been alloted more time under the present rule will receive less. Certainly there are a lot of dnp opinions which decide important issues not found in the published opinions. Personally, for that reason, I favor retroactive change in "citeability" rather than prospective, if the change is going to be made. The proposal that dnp opinions have no precedential value but may be cited makes no sense to me. Obviously there are a myriad of old opinions out there that a particular lawyer may have access to (especially big law firms), but which are not available to anyone else, so maybe the court should provide any dnp opinion cited must be included in the appendix.
My guess is this proposed change will not affect criminal practitioners as much as civil, but does anyone have any thoughts on this rule? Should we be pushing for/against this change? Apparently the Supreme Court could adopt it but the CCA might refuse to.
I am against publishing all criminal law opinions. Most of the appeals of criminal cases are frivolous. The opinions add nothing but paper and make research of real new law more difficult. Leave publication to the discretion of the court.
John Bradley District Attorney Williamson County, Texas
Maybe we could look into a rule (at least in criminal cases) that opinions where the appellate court grants relief may be cited / must be published. This would address John's concern re: a bunch of new published cases that say the appellant / defendant loses, while still giving the rest of us the benefit (?) of cases where there was some error or problem. I agree that not all cases need to be published -- there really are too many appeals that raise no new issues or are based on alleged errors that were not preserved for appeal. I don't see a problem with allowing citing DNP opinions, although that seems to destroy the distinction between published and unpublished opinions.
Posts: 54 | Location: Fort Stockton, Texas USA | Registered: April 04, 2001
I think the only winner in the new rule would be Westlaw. There would be no distinction between published and unpublished. Therefore, everyone is going to have to do that much more computer research to find the unpublished. (Kind of silly that unpublished would only mean not printed in a West publication.)
Appellate courts routinely dispose of cases in short order (and short opinions) because they know they don't have to give the detailed analysis behind their reasoning when they are clearly in the right to begin with. Erasing the distinction between published and unpublished would seem to be an unnecessary burden on the courts and those of us keeping up with what the courts do.
I served a year as a briefing attorney at a court of appeals. There are many more factors in the publish/don't publish decision than those listed in the appellate rule. It suffices to say that some (many) of those factors would irk the typical prosecutor.
As an appellate prosecutor, I've often been at a loss for published authority when abundant unpublished authorities were at hand. Several times I've had to craft arguments explaining the use of unpublished authority as authority. I've had several cases that should have been published but weren't. The opposite is also true, but I've had more trouble with good authority I couldn't use than bad authority I could.
I think it suffices to say that, since most criminal appeals are affirmed, most unpublished opinions would be helpful to us because they would support prosecution arguments, whether at trial or on appeal. Unfortunately, a court of appeals can accomplish almost the same thing as not publishing through the use of a memorandum opinion that really isn't an opinion. I think this would be avoided in most cases because it would actually require more work on their part.
The courts will need increased staff in order to meet their performance measure deadlines imposed by the legislature. Those of us that rely on digests and headnotes will suffer. Probably, al the unpublished cases will be available on the internet for free. As a person who writes briefs for a living, I think the change is fine.
[This message was edited by John Rolater on 08-13-02 at .]
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
Frank, I have always thought that if the trial judge got it wrong, the issue probably presented a matter of importance to the jurisprudence of the state and thus should have been published (even if part was ordered not published). I presume they weren't published to protect the trial judge more than any other reason. But, I realize I was biased in this regard because for many years I represented the appellant rather than the appellee. You really like to see your name in the lights when your wonderful argument shows you were as "learned" as the trial judge. I also have thought that publication of opinions on fact-specific issues, like search and seizure, should more often than not be published. What better way to learn what probable cause or reasonable suspicion is or isn't than to have more examples? The new rule would certainly solve some problems, while creating some new ones.
It is important to note that the standards for publication are basically left unchanged, so the amount or number of first tier precedents will not necessarily change, its just that the dnp's are given a new label. All the new rule means is that on occasion, there may be a new source of information, or an angle not yet expressed in a published opinion available for discussion. Good opinions, bad opinions, published opinions or not, all just represent the exchange of ideas, and that can't be such a bad thing. One key will be the form of the memorandum opinions (which are, of course, not anything new, just something that has not been very well utilized). The old arguments about the size and cost of the law library are pretty well gone now. And why can't two separate computer databases be maintained to solve the research "clutter" problem? You search section b only when you're not satisfied with the outcome from section a. Also, it is not clear how Lexis and West will handle the extra expense of 8-9 times more opinions. Maybe some entirely new company, Memorandum, Inc., will take that part of the market. It will be interesting to see the outcome. One thing the new rule would do is give us all a better insight into how each particular court is applying the publication standards, since I think it is ridiculous to say they are being applied equally or mean the same thing in Dallas and Beaumont at present.
Sorry, I have to stick with my opinion that more opinions being published is bad for the law. Sure, occasionally, there is an unpublished opinion that would help. But more often than not, some really bad published opinion causes everyone trouble until a higher court kills it. How about leaving the decision to publish to someone other than the court writing the case?
John Bradley District Attorney Williamson County, Texas
I don't write that many briefs, but when I do, and I win, I like to see my name in the SW Reporter. If the court says "do not publish" at the end, and I think their opinion might be of use to me or another prosecutor somewhere, sometime, I dash off a motion to publish. I point out how the opinion illuminates some wrinkle in the law, that this is useful for trial courts, and that the opinion in a masterful yet consise way helps further the law.
I've never had a motion to publish granted. I'm not aware that any of us in Dallas have had a motion to publish granted in the last six years. Goliad sounds like a nice place to practice!
I know that in some other states the higher courts can "unpublish" a bad authority without reversing the lower court.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
Maybe its the recipe you're using in your motions to publish. Do they use enough sugar and butter? My rule of thumb: if the praise for the opinion is enough to make a normal person start to feel a little queezy, then its probably just about right. Here are some lines you might try: " . . . this opinion brilliantly illuminates what has heretofore been a dark and difficult area of the law . . ." ". . . trial judges will sing 'hallelujah!'welcoming the brevity of this opinion, and the way it consisely explains the law in an oftentimes over looked area . . ." " . . . this opinion, reminiscent of some of the better opinions of Learned Hand, Coke, and Gladstone . . ."
Having formerly served as a staff attorney for many years on an intermediate court of appeals, I can tell you that the decision whether to publish is generally not made according to any formula in the rules. I have seen some very significant decisions of law hidden in an unpublished opinion, while the sort of bland opinion that only repeats the obvious gets published. As long as the writing judge gets the first say in what gets published, he is far safer to avoid publishing controversial, law-changing decisions that might get him or her reversed. Perhaps John Bradley's idea of involving a third-party in the decision would work, but who has the time and impartiality to make that decision?
Posts: 33 | Location: Corpus Christi, Texaas | Registered: February 07, 2002
Presiding Judge Keller has now indicated that she and her court agree with JB that because there are so many frivolous criminal appeals, they will not adopt any change to Rule 47 for opinions in criminal cases. So, if the Supreme Court accepts the proposal I guess we'll end up with memorandum civil opinions and dnp criminal opinions. Will the courts still start using the memorandum idea more freely in criminal cases, since they will be growing accustomed to it in their civil cases? Maybe the fact that the criminal side balks will kill the civil initiative too, since there is something to be said for uniformity. Will be fun to see how it all turns out.
Something changed between early May and August. The CCA seems to have decided use of dnp's in briefs was not so bad after all. Considering the resistance to this move for more than 50 years, I am still shocked to see it happen.
I've found the change in the rules to be very helpful for the most part. It gives us access to many unpublished affirmances with comparable facts. It does not seem to have helped the other side as much.
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
Has anyone seen many memorandum opinions on the merits? This would seem like a great way to accomplish what the old "do not publish" rule really accomplished--preventing bad facts from making bad law.
The Fifth Court seems to use memo opinions only for dismissals and Anders cases. What are the other courts doing?
Does anyone know if the CCA has ever used its power to order a case "unpublished"? SeeTex. R. App. P. 47.2(b).
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001
Maybe it has happened, but I have yet to see any published case which indicates it got that way as a result of an order from the CCA.
If by "merits" you mean rulings on evidentiary issues and procedural issues that seem worthy of being part of our "real" jurisprudence, then I see memo ops in criminal cases being utilized in that way all the time- basically without regard to whether any part of the opinion meets the criteria for such designation under Rule 47.4. Of course, these opinions are also designated as "dnp", which is the more important designation for our purposes.
But, there are several which are published, e.g., Bryant, 135 S.W.3d 130; Cantwell, 85 S.W.3d 849.
I guess I do not understand your question, since there was no change in the rule with respect to DNP opinions in criminal cases in 2002. Presumably that designation continues to be used for the same purposes and in like manner as before. Are you asking about civil memorandum opinions? I certainly think the CCA decides not to publish its opinions largely on the stated basis.
The interesting thing to me is when a memorandum opinion in a criminal case is designated for publication, since supposedly the issues are well settled yet the opinion has precedential value. Seems like an oxymoron.
[This message was edited by Martin Peterson on 08-22-06 at .]
