To Publish or Not To Publish – That is the Question . . . But Should It Be? Justice Clarence Thomas

U.S. Supreme Court Judge Clarence Thomas issued a highly critical dissent implicating that by not publishing its 39-page opinion in Plumley v. Austin, the majority for the Fourth Circuit Court of Appeals was avoiding Supreme Court review.[i] After calling the fact that the opinion was unpublished a “disturbing aspect” of the case, Thomas added, “it’s hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the circuit.”[ii]

Thomas’ dissent came from denial of certiorari in Plumley v. Austin, where the Court of Appeals ruled that a trial judge unlawfully increased a prison sentence of West Virginia inmate Timothy Austin out of vindictiveness.[iii]

Austin was approaching release on parole in 2010; however, his sentence was increased to an additional one to three years after pleading guilty to attempted escape.[iv] At sentencing, the trial judge was given the choice of when to start the new sentence – either that day at trial [November 12, 2009] or starting the day of Austin’s discharge, which would not be until December of 2014.[v] The trial judge “cut the baby in half” and chose the date of Austin’s parole as the start of his extra one to three years.[vi]

Austin challenged the new sentence claiming, “state law prohibited the trial court from imposing a sentence that was neither purely concurrent nor purely consecutive.”[vii] The trial judge then amended the order making the second sentence consecutive – ultimately resulting in a longer prison sentence for Austin.[viii] Austin appealed and was rejected by West Virginia’s highest court.[ix] Austin then applied for a writ of habeas corpus in federal court based on the same claim that the trial judge had acted vindictively when he filed the amended sentencing order.[x] After the District Court denied Austin’s application, the Fourth Circuit granted a certificate of appealability, reversed the District Court’s denial, and applied the presumption of vindictiveness.[xi]

The Fourth Circuit granted a habeas writ in a 2-1 per curiam panel opinion[xii], suggesting the legal question the decision resolved was a difficult one. Thomas claimed the difficulty stemmed from a 1969 case, North Carolina v. Pearce, which created a “presumption of vindictiveness” on the part of the sentencing judge when the judge imposes a higher sentence after a second trial is conducted.[xiii] According to Thomas, judges are typically presumed to act with integrity and therefore the 1969 case’s “presumption of vindictiveness” became an irregularity that created confusion among judges.[xiv] According to Thomas, the opinion in Plumley v. Austin should have been given review “to resolve the confusion.”[xv]

Over the dissenting votes of both Justice Thomas and Justice Scalia, the Supreme Court denied a review of the decision[xvi] – thus, the opinion set no precedent. Thomas claimed that a full briefing, hearing oral argument, arriving at a split vote, and writing a lengthy majority and dissenting opinion for the case did not meet established criteria for issuing unpublished opinions – “By any standard – and certainly by the Fourth Circuit’s own – this decision should have been published.”[xvii] Although Thomas has not been the first to criticize a lower courts’ decision not to publish an opinion[xviii], his dissent has opened a can of worms - reviving a long-standing debate regarding the controversy over unpublished opinions.

Close to 90% of all opinions issued by federal appeals courts are “unpublished”[xix]; however, many argue the ability to issue an unpublished decision is unconstitutional.[xx] In a country with a judicial system founded on the notion of stare decisis, having a separate and substandard class of judicial opinions is justifiably controversial. Precedent is not only the vital tool used by the legal system to afford a sense of predictability to the judicial system, but it also acts to separate judicial and legislative powers.[xxi] A judge is “sworn to determine, not according to his own judgments, but according to the known laws.”[xxii] Although a 2006 amendment to the federal rules of appellate procedure allowing attorneys to cite unpublished opinions issued after January 1, 2007 was approved[xxiii], the opinions are non-precedential nonetheless and only some states allow unpublished citations in their court cases.

According to Professor William Richman and Professor William Reynolds, designating some opinions as non-precedential ignores the value of accumulating decisions in an area of law, whereas publication serves the public interest in “openness and visibility of decision making.”[xxiv] Others question whether cases decided through non-precedential opinions receive full judicial consideration arguing that lack of public accountability results in less thorough consideration.[xxv] Some even argue that non-precedential opinions create new shortcuts that federal appellate courts adopt to manage their caseloads. [xxvi] Although criteria for publication of opinions vary between circuits, in a broad sense, appellate opinions are supposed to be published if they announce a new legal principle or interpretation, or if their significance is otherwise thought to extend beyond the facts of the particular case.

From a different perspective, non-publication helps fix the problem of too much written material creating too little new law.[xxvii] Non-publication of opinions was a practice that started in 1964 by the Judicial Conference of the United States.[xxviii] The Conference, the governing body of the lower federal courts’ administrative purposes, recommended “judges publish only those decisions which are of general precedential value.”[xxix] The main reason for this rule was to cut back on the volume of cases. In the 1980s, federal appeals courts disposed of 20,877 cases and in the 1990s the number of appeals disposed of reached 51,194.[xxx] “We simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent,” explained Judge Alex Kozinski of the Ninth Circuit. “[W]e can make sure that a disposition reaches the correct result and adequately explains to the parties why they won or lost, but we don’t have the time to consider how the language of the disposition might be construed (or misconstrued) when applied to future cases.”[xxxi]

Still, the notion that not all precedent are created equal has been well established in our legal system as legal authorities can differ from mandatory or controlling to simply persuasive. Unpublished opinions may not be precedential; however, when no other published authority on point exists, an unpublished opinion may be construed as controlling. In the past, “unpublished” decisions literally meant they were not published; however, today legal databases and the Internet sites publish almost every decision. Not only has technology made all cases – published and unpublished – easily accessible, technology has also made searching through various cases much easier. The days of reading case after case to find relevant authority are now over. Entering a relevant search term can narrow case law in minutes – rendering moot the concern of voluminous unpublished decisions. Will the recent rebirth of the deep-rooted debate concerning unpublished opinions -- coupled with new technological innovations -- transform courts’ views on how much weight to grant unpublished opinions?

[i] Plumley v. Austin, 135 S. Ct. 828 (2015) (Thomas, C., dissenting)

[ii] Id. at 831.

[iii] Austin v. Plumley, 565 F. App'x 175, 192 (4th Cir. 2014) cert. denied, 135 S. Ct. 828 (2015)

[iv] Id. at 178, 179.

[v] Id.

[vi] Id.

[vii] Plumley, 135 S. Ct. at 829.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id. at 830.

[xii] Autin, 565 F. App’x at 175.

[xiii] Plumley, 135 S. Ct. at 828; see N. Carolina v. Pearce, 395 U.S. 711, 713 (1969) overrules by Alabama v. Smith, 490 U.S. 794 (1989).

[xiv] Id.

[xv] Id.

[xvi] Id.

[xvii] Id. at 831.

[xviii] Cnty. of Los Angeles v. Kling, 474 U.S. 936, 938 (1985) (“That decision not to publish the opinion ... was plainly wrong.”); United States v. Edge Broad. Co., 509 U.S. 418, 425 n.8 (1993) (“We deem it remarkable and unusual that although the Court of Appeals affirmed a judgment that an Act of Congress was unconstitutional as applied, the court found it appropriate to announce its judgment in an unpublished per curiam opinion.”)

[xix] For the 12-month period ending September 30, 2013, 88.2% of all federal appellate opinions were issued as nonprecedential opinions. U.S. Courts of Appeals--Types of Opinions or Orders Filed in Cases Terminated on the Merits After Oral Hearings or Submission on Briefs During the 12-Month Period Ending September 30, 2013, U.S. Courts of Appeals,

http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2013/tables/S03Sep13.pdf

[xx] Anastoasoff v. United States, 233 F.2d 838, 900, vacated en banc as moot, 235 F.2d 1054 (8th Cir. 2000) (holding that the practice of issuing non-precedential opinions is unconstitutional).

[xxi] The Federalist No. 78, at 399 (Alexander Hamilton) (Buccaneer Books, 1992) (“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them....”).

[xxii] William Blackstone, Commentaries on the Laws of England Vol 1, Oxford: Clarendon Press, 1765, facsimile version Legal Classics Library, 1983; available at http://web2.uvcs.uvic.ca/courses/lawdemo/DOCS/BLACKSTN/B6367_73.HTM; see Anastasoff, 223 F.3d at 901 (quoting Blackstone)

[xxiii] Fed. R. App. P. 32.1, Citing Judicial Dispositions.

[xxiv] See generally, William L. Reynolds & William M. Richman, The Non-Precedential Precedent--Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167 (1978).

[xxv] See, e.g., Richard B. Cappalli, The Common Law's Case Against Non-Precedential Opinions, 76 S. Cal. L. Rev. 755, 788-91 (2003); Martha Dragich Pearson, Citation of Unpublished Opinions as Precedent, 55 Hastings L.J. 1235, 1251 (2004).

[xxvi] See, e.g., Amy E. Sloan, The Dog that Didn't Bark: Stealth Procedures and the Erosion of Stare Decisis in the Federal Courts of Appeals, 78 Fordham L. Rev. 713, 714 (2009).

[xxvii] Boyce F. Martin, Jr., In Defense of Unpublished Opinions, 60 Ohio St. L.J., 177 (1999).

[xxviii] Richard S. Arnold, Unpublished Opinions: A Comment 1, J. App. Prac. & Process, 219 (1999).

[xxix] Arnold, Richard S. (1999), Unpublished Opinions: A Comment 1, J. App. Prac. & Process, p. 219, citing, Administrative Office of the United States Courts, Judicial Conference Reports 1962-64, at 11 (1964).

[xxx] See Martha J. Dragich, Will the Federal Courts of Appeals Perish if They Publish? Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat?, 44 AM. U. L. REV. 757, 758 n.48 (1995).

[xxxi] Letter from Alex Kozinski, Chief Justice of the U.S. Court of Appeals for the Ninth Circuit to Samuel A. Alito, Jr., Justice on the U.S. Court of Appeals for the Third Circuit regarding Proposed Federal Rule of Appellate Procedure (Jan. 16, 2004) available at http://www.nonpublication.com/kozinskiletter.pdf

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