Howard J. Bashman's appellate columns, etc.

In The Quest For Access To Non–Precedential Decisions, Don't Overlook The Possibility Of A Legislative Solution

By Howard J. Bashman
Monday, June 13, 2005
The May 23, 2005 issue of Pennsylvania Law Weekly, a sister publication of The Legal Intelligencer, contained a front page article headlined "A Thirst for Case Law: Practitioners favor posting unpublished memorandum decisions on court Web sites." The article noted that while attorneys and law professors generally seem to favor online access to the non–precedential rulings of the Superior Court of Pennsylvania, that Court's judges appear to remain strongly opposed to such access.

Of course, the opinions that the Superior Court of Pennsylvania issues -- whether or not designated as precedential -- are governmental public records that are available for review at the court's headquarters. But at present, as in the past, non–precedential Pennsylvania Superior Court decisions are not readily available for review because the court does not post them on the internet nor are the decisions available on Westlaw or Lexis. By contrast, the Superior Court does make its precedential opinions available on the internet and over Westlaw and Lexis.

The debate over non–precedential appellate rulings involves some difficult questions, chief among them whether appellate courts should be allowed to designate any of their rulings as non–precedential and whether appellate courts act properly in prohibiting citation to non–precedential rulings. By comparison, the issue of public access to non–precedential opinions is much less controversial.

To begin with, all concede that a non–precedential opinion is a court record that is properly made available to the public. The question is merely whether that public record is readily available, over the internet and via Westlaw and Lexis, or only available to those who know of its existence and are able to obtain a copy directly from the court itself. Furthermore, providing ready access to non–precedential rulings, over the internet and/or via Westlaw and Lexis, does not transform non–precedential rulings into precedent, nor would such access nullify court rules precluding citation to non–precedential rulings.

The United States Congress, in the E–Government Act of 2002, required all federal appellate courts to make available over the internet not only their precedential opinions, but also their non–precedential opinions. As a result, today anyone with access to the internet can browse all federal appellate court rulings that issue each day, both precedential and non–precedential. And non–precedential federal appellate court rulings are now also readily available on Westlaw and Lexis. Yet this easy access has not transformed non–precedential federal appellate court rulings into precedent, nor has the access in and of itself forced those federal appellate courts that still preclude citation to non–precedential decisions to abandon those no–citation policies.

If the U.S. Congress, notwithstanding separation of powers principles inherent in the U.S. Constitution, possesses the ability to require federal appellate courts to provide ready electronic access to their non–precedential rulings, then surely Pennsylvania's Legislature has the ability to require the Superior Court of Pennsylvania to likewise provide ready electronic access to that court's non–precedential rulings.

An appellate court's rulings, whether precedential or not, are public records that should be readily available to the public, not hidden away in a court clerk's office and available only to those who know to ask for them. If anything, the argument for making all rulings of Pennsylvania's appellate courts readily available to the public is even stronger than in the federal system, because Pennsylvania's appellate court judges are elected to those posts and then must stand for retention elections every ten years.

The electorate should be able to base its decision whether to retain an appellate judge not only on the judge's published rulings but also on the judge's non–precedential decisions. Under analogous circumstances, when the U.S. Senate considers whether to confirm a U.S. District Judge to a post on a U.S. Court of Appeals, the Senate Judiciary Committee requests not only the federal district judge's published opinions, but his or her unpublished opinions as well. Pennsylvania's electorate should demand access to that same type of information.

The greatest difficulty I face in discussing this issue is trying to understand why the Superior Court of Pennsylvania would not want to provide easier access to that court's unpublished opinions. I doubt that the cause is concern over potential embarrassment, because those opinions are already issued directly to the parties and the trial judge, who know much more about the case than the public generally. The Commonwealth Court of Pennsylvania's decision to make its non–precedential decisions available electronically shows that it is feasible to do so. And a recent study by the Federal Judicial Center dispelled concerns that easy access to non–precedential rulings would noticeably increase the workloads of appellate judges or lawyers handling appeals.

Accordingly, the Superior Court's reluctance to provide easy electronic access to its non–precedential rulings may just be a result of inertia -- a preference for having things remain as they have always been. Yet in this electronic age in which we live, inertia should not be permitted to triumph over providing to the citizenry easy access to government records in the form of appellate court rulings.

And if the Superior Court of Pennsylvania is unwilling to provide access to its non–precedential decisions over the internet and via Westlaw and Lexis, then Pennsylvania's Legislature should follow in the footsteps of the U.S. Congress and pass a law requiring the online availability of all Pennsylvania appellate court rulings, whether precedential or not. The goal of equal access to justice for all can and should include equal access for all to state appellate court rulings.

This article is reprinted with permission from the June 13, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.