Subject: Unpublished Opinions; Vacated Opinions
Date: Wed, 26 Jun 2002 03:37:20 -0700
From: Doug Schafer <d_schafer@bigfoot.com>
To: "Rep. Lantz, Patricia" <lantz_pa@leg.wa.gov>,
"Sen. Kline, Adam" <kline_ad@leg.wa.gov>
CC: " Armstrong, Dick (Sen JUD Counsel)" <armstron_di@leg.wa.gov>,
" Perry, Bill (Hse JUD Counsel)" <perry_bi@leg.wa.gov>Senator Adam Kline and Representative Patricia Lantz:
Please give some thought to the objections being widely expressed about unpublished appellate opinions in both federal and state courts. A Congressional committee is holding a hearing on the subject this Thursday, according to an article at:
http://www.law.com/jsp/article.jsp?id=1024078887242That article describes a determined CA lawyer who has a very informative website on the subject at: http://www.nonpublication.com
Our WA Court of Appeals now publishes only a fraction of its opinions. Its authority to dispense with publication of nonprecedential opinions was granted by the legislature in 1971. I question whether the reasons given in 1971 for nonpublication outweigh the arguments being made today supporting universal (electronic) publication. The seminal case on nonpublication is State v. Fitzpatrick, 5 Wn. App. 661 (1971) review denied (1972), in which the court said, at 668:
""The state has cited an unpublished opinion of this division of the Court of Appeals. The unpublished opinion would not have changed the result of this case, but we feel called upon to explain why the Court of Appeals will not consider an unpublished opinion to have precedential value. In Laws of 1971, ch. 41, § 1, the legislature amended RCW 2.06.040. The amended portion reads as follows:In the determination of causes all decisions of the court shall be given in writing and the grounds of the decisions shall be stated. All decisions of the court having precedential value shall be published as opinions of the court. Each panel shall determine whether a decision of the court has sufficient precedential value to be published as an opinion of the court. Decisions determined not to have precedential value shall not be published.
In enacting this amendment the legislature recognized that opinions which do not have sufficient precedential value to affect the common law of our state should not be published. To continue the publication of cases which merely restate well established principles of the law fills up our bookshelves, complicates legal research and will inevitably adversely affect the computerization of the case law of our state.
[9] We therefore hold that unpublished opinions of the Court of Appeals will not be considered in the Court of Appeals and should not be considered in the trial courts. They do not become a part of the common law of the state of Washington. If the trial courts were to consider them it would not only be wasteful of their time but would permit any group of lawyers to collect such opinions and create an unfair advantage by citing cases not available to their opponents.
[10] In determining whether a case has sufficient precedential value to justify publication we are considering the following criteria:
OPINIONS OF THE COURT OF APPEALS SHOULD BE PUBLISHED:
(1) Where the decision determines an unsettled or new question of law or constitutional principle.
(2) Where the decision modifies, clarifies or reverses an established principle of law.
(3) Where the decision is of general public interest or importance.
(4) Where the case is in conflict with a prior opinion of the Court of Appeals.
(5) Where the decision is not unanimous.
OPINIONS OF THE COURT OF APPEALS SHOULD NOT BE PUBLISHED:
(1) Where an affirmance is based upon the conclusion that the evidence is sufficient to sustain the findings of fact of the trial court, except where the issue of sufficiency involves a novel or important question of law.
(2) Where the decision, whether an affirmance or reversal, is determined by following a legal principle or principles well-established by previous decisions.
(3) Where the decision, whether an affirmance or reversal, is based upon a question of practice or procedure, except where the question is one of such importance in the administration of the law that it should be settled by an authoritative pronouncement.""
[END OF OPINION EXTRACT]
VACATUR ISSUE: A related issue that concerns me is the practice of litigants (usually "big business" like insurance carriers) who lose an appellate case purging the adverse opinion from the body of published case law by paying the winning litigant to join them in moving the court to vacate the adverse ruling. That is exactly what appears to have happened in the case of Butko v. Stewart Title Co. that was published in the Washington Advance Sheets at 99 Wn. App. 533 (Booklet No. 4, April 25, 2000), but later "withdrawn" per an announcement on an unnumbered page following page 1029 in 100 Wn. App. (Booklet No. 2, May 23, 2000).In the published Advance Sheets opinion, the court stated, at 551:
"[W]e hold that an escrow agent has a fiduciary duty to inform the parties to the transaction if it has reasonable cause to believe a party has perpetrated a fraud against another party to the transaction."The Butko opinion was by Washington Court of Appeals, Division 2, authored by Judge Karen D. Seinfeld, and concurred in by Judges C.C. Bridgewater and J. Dean Morgan. It was filed Jan. 21, 2000, and its endnote stated, "Reconsideration denied March 8, 2000."But the page in 100 Wn. App. Advance Sheets Booklet No. 2 stated, under the Butko case caption:
"By an opinion of the Court of Appeals dated May 5, 2000, the opinion in the above captioned case, which appears in the advance sheets at 99 Wn. App. 533-58, has been withdrawn and the appeal dismissed."
I did review the Court's public file on the Butko case. That confirmed that the stated reason why Stewart Title Insurance moved to vacate and depublish the opinion was because it and the members of its industry were concerned about the rule announced in the opinion. It is unstated how much money Stewart Title paid to Butko to cause it to join in the vacatur motion. Since the court granted the motion, the opinion cannot be found in the bound volumes of COA decisions nor on Westlaw, Lexis, or Loislaw. But it is available on the new free on-line WA caselaw database of Municipal Research & Services Center <http://www.legalWA.org> because it used the advance sheets for the source of its data in 2000.
The full opinion also is posted, along with many other vacated judicial decisions, at a website called The Vacatur Center hosted by a national law firm that philosophically opposes such "bought and paid for" case law.
<http://www.andersonkill.com/Vacatur_Center/Introduction.asp>Please consider legislation that would bar insurance companies and other unsuccessful litigants from "erasing" adverse case law.
Thank you.
Doug Schafer, Idealistic lawyer in Tacoma.
Comment (not sent to Senator Kline and Representative Lantz (both lawyers)):In the Butko case, the losing party, Stewart Title Co., that paid whatever it took to get the Court of Appeals to erase what would have been its precedent-setting opinion was represented by Seattle high-rise law firm Foster Pepper & Sheffelman and its partners, Richard Keefe, Peter Ehrlichman, and Camden Hall.