Glad to see someone else has heartburn over them.
My experience with them is at the State appellate level. Over the last few decades, the State courts adopted a custom of issuing unpublished opinions, i.e., opinions that the West Reporters (the standard books you go to to find decisions) are instructed not to publish and which, even if you find one, you cannot cite as precedent. In part this was understandable. Lots of appellate decisions (esp. on the criminal side) rule on nothing interesting or noteworthy, or point out that this case is obviously governed by earlier opinions. No sense wasting paper reporting them.
But I've also seen some where the ruling clearly WOULD have added to or changed the law in a significant way, and which I'm convinced were unpublished simply because the court wanted to go in a way contrary to the law. So it did it, and didn't have to worry about this decision binding the court in a later case where it did want to follow the law.
UPDATE: These are State appellate judges. I think they are on the ballot with approve or disapprove (in the 30 year history of the system, I think there's been just one who lost that vote). That may have affected one unpub that I got. The appeal concerned the "natural life" sentence, then recently created by the legislature as a "real life sentence" (ordinary life was parole-eligible after 25 years).
The Arizona Constitution has a provision that every bill must concern one subject. Case law says the purpose was to prevent omnibus bills where you round up votes by sticking in things that appeal to other legislators, attaching their pet ideas to get them to agree with a bill that, alone, they might vote against.
The natural life sentence was created in a monster of a bill that was even entitled "Omnibus Bill." It had everything. I remember around a dozen provisions -- one that I remember established some sort of a bureaucracy to regulate collector auto sales. Most of it didn't even concern the criminal code, and natural life was just a couple of sentences buried in it. Presumably somebody wanted it and just stuck it on.
I forget what the court of appeals said, but they managed to claim the bill had a single subject and wasn't an omnibus bill. Bottom line -- they were NOT going to be blamed for striking down natural life sentences (and also every other provision of that bill, thus riling the entire legislature). I think they made it unpublished because the reasoning they had to use was tenuous to the point of humor, and they didn't want to be bound in future cases by a ruling that essentially made the single purpose provision meaningless.
I'm convinced were unpublished simply because the court wanted to go in a way contrary to the law. So it did it, and didn't have to worry about this decision binding the court in a later case where it did want to follow the law.
A kind of judicial nullification?
Posted by: Tom Gunn at October 17, 2008 11:17 AM
I think unpublished opinions exhibit judicial cowardess. Judges make decisions without taking responsibility for them.
Posted by: Melvin McDowell at October 17, 2008 11:19 AM
Levin seems to be carping mostly about unpubs at the district level.
Are these the judges who are retained or removed when balloting takes place for elected office?
Unsavory unpub opinions would be harder to obtain for activists campaigning to remove judges.
Posted by: Tom Gunn at October 17, 2008 12:10 PM
I have never voted to retain any judge in an electecd position. Oftentimes, I didn't know much about the particular judge, but I knew the system was fubarred and the judge was part of the system.
Posted by: straightarrow at October 17, 2008 07:34 PM
Posted by: Tom Gunn at October 18, 2008 08:58 AM
OK, Kids, here's one for you. As you may, or may not know, up until fairly recently Pennsylvania had a "county practice" system, i.e., you had to "reside" in the county in which you practiced, And each of the counties' courts were somewhat autonomous. The upshot was that any time a big city lawyer - Philadelphia or, say, Pittsburgh - wanted to appear they had to retain local counsel.
Good for the homeboys, irritating to the snooty big guys, so, of course the system was doomed. Under the state-wide practice system anybody could go anywhere without hiring locally, or filing a petition to appear "pro hoc vice," or whatever.
HOWEVER, one aspect of county practice that didn't go away immediately were the local rules of procedure which supplemented the state procedure. Rules such as: All filings were to be on 8.5 x 14 legal paper, with blue backer, double folded and triple taped with duct-tape (I kid you not) so the judge's clerk didn't run the mortal danger of pricking his/her finger on an errant staple, blah, blah, blah. Local rules also had the salubrious effect of providing tripping blocks for out-of-county attorneys.
Now very early on in my lackluster career I attended one of my county bar association's semi-annual meetings. You know, where you get away form the spouse for a weekend of golf and decorous drunken revelry with the folks you're going to try to screw in court in the upcoming week. Well, anyhow, the meeting was all a twitter with the news that the county was going to publish an updated version of the local rules and make them available. Heretofore, these rules were to be found only in one disorganised three-ring binder, misplaced in the law library. Then, once found, you had try to read what was on the faded onion skin carbons. Or, you could go to a local shamen who would cast chicken bones -- and be right as often as you would be with the rule book. Perhaps needless to say, the court would sometimes make things up as it went along - many times favoring local counsel - in the interest of expeditious justice, etc., etc.
At the meeting in the Poconos, there were great lamentations and rending of Brooks Bros. garments over the loss of what was referred to as "The Great ______ County Oral Tradition." Not just the tradition itself, but of the tradition of it being a tradition. Everyone, especially the older guys, realiized that they were about to be run over and bulldozed by young punks from the city.
But, hey! That's what happens when you let "progress" trump tradition.
Posted by: C. Cox at October 18, 2008 12:25 PM
Mr. Cox, what you describe was not just intended to provide local attorneys with gainful employment, though that was obviously one of the motives for it. Another main benefit for such an arrangement is that it cripples an out of town attorney who may be representing a client in a suit against the local government or sub-division thereof.
Anybody ever try to hire a local attorney to oppose the local power structure, whether it be the police, sheriff's office, zoning board, etc. It is almost, if not entirely, impossible, because that local attorney has to live and work there in front of those same judges long after your case is over. That is tantamount to a vow of poverty for any local lawyer not in a large metropolitan area with wide availability of judges, courtrooms and large pool of potential clients.
Posted by: straightarrow at October 19, 2008 03:49 PM