Now we need to get a similar arrangement with state appellate court opinions. In IL our Supreme Court established Supreme Court Rule 23 which allows an appellate court to issue a non-precedential, unpublished ruling.
Essentially, it means the opinion isn’t published in those books you see in the law library. Because it isn’t published means it can’t be cited as legal precedent in any other case. It allows the appellate court to issue the most outrageous, one-of-a-kind rulings without those opinions ever seeing the light of day.
In my own case, the Second Appellate District Court of Illinois ruled that domestic violence is NOT a factor that a judge has to consider before awarding sole custody to a confessed spouse abuser.
If published, that opinion would stand decades of legal precedent on its collective ear, and would have feminist groups marching on Springfield. But mine was a Rule 23 opinion, and no one else can read it, and no other case which came after mine can cite the ruling as precedent.
This gives an appellate court tremendous power to bend or ignore facts, to ignore the law, or to make up the law as they go along.
Trial court judges know their equally bizarre and outrageous rulings can also be upheld on appeal without the ruling making it into the law books.
Since the IL Supreme Court is not obligated to accept every case which litigants try to appeal from the appellate courts, a Rule 23 ruling is a ‘de facto’ red flag to the state Supreme Court. If it’s a Rule 23 opinion, the state Supreme Court simply won’t touch the case, and will deny a litigant’s leave to appeal. That buries the opinion back in that dark underbody of law with all the other unpublished Rule 23 opinions.
Personally, I think this ruling by the federal circuit courts is still only a half-measure on the way to opening up the judiciary.
Instead of allowing citation of unpublished opinions, the courts should abolish unpublished opinions completely. Under this new relaxed rule, it is still a huge burden for a litigant to find a specific point of law in the ocean of unpublished opinions. Because they aren’t indexed in a law book, the litigant’s attorney is forced to sift through what could be thousands or even tens of thousands of unpublished opinions looking for that one useful nugget.
It all goes back to something my Dad would say. He’d tell me, “Don’t do anything you wouldn’t want to read about in tomorrow’s newspaper.”