Panel Weighs Opinions on Publishing Opinions

(Note: Updated Feb. 24 to add Friday developments)

A Supreme Court committee may be ready to nudge the judiciary to soften its long-held presumption that most appellate decisions should not be published.

The Advisory Committee on Rules for Publication of Court of Appeal Opinions, chaired by Supreme Court Justice Kathryn Mickle Werdegar, asked for comments Thursday on whether the rule that discourages publication should be changed to advocate it if one of nine criteria is met.

“The committee concluded that the proposed changes will help courts to focus on the relevant factors in determining whether to publish a particular opinion, while avoiding the publication of large numbers of cases that would not be helpful to the bench and bar,? the panel wrote.

Just 8 percent of opinions are currently published, according to the Judicial Council. The committee’s proposal doesn’t make advocates of total publication giddy. Veteran no-citation fighter Michael Schmier appealed to Assembly Speaker Fabian Nuñez late Friday to author a bill allowing unlimited publication. The Werdegar committee proposal “does not address the no-citation problem,? the Emeryville attorney said, and no one else in the Legislature will carry the bill. Friday marked the last day for lawmakers to introduce new legislation, and Nuñez appeared unlikely to sign on to the bill Friday afternoon.

The committee’s proposal does go a step farther than a draft 2005 report that only suggested there be factors that don’t determine whether an opinion is published.

Based on 20 responses to that report, the committee decided to reconsider the presumption against publication. Interestingly, the committee added one caveat to the nine publication criteria: “Factors such as the workload of the court, or the potential embarrassment of a litigant, lawyer, judge, or other person should not affect the determination of whether to publish an opinion.?

Opinions on the proposed changes will be accepted through April 28. The committee will ultimately submit its final recommendations on the publication rule to the Supreme Court.

— Cheryl Miller


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