John v. State

¶1concurring.

¶2I agree with my colleagues that this court misinterpreted Criminal Rule 18 in Wilson v. State.1 I am writing separately for two reasons: first, to issue a mostra culpa with regard to this court's long-ago decision not to publish Wilson, and second, to discuss some of the problems inherent in our policy of issuing most of our decisions as memorandum opinions.

¶3Since the mid-1960s, American appellate courts have been issuing decisions that are designated as "memorandum" or "unpublished" opinions. The use of unpublished decisions was in full swing when the Alaska Legislature created the Court of Appeals in 1980, and one of this court's early administrative acts was to promulgate a standing order governing the issuance of unpublished decisions.

¶4In Standing Order No. 8 (issued March 20, 1981), this court adopted "Guidelines for *64Publication of Court of Appeals Decisions". Paragraph 1 of these Publication Guidelines declares that it is this court's policy to "reduce the proliferation of published opinions" by "avoid[ing] the [publication] of lengthy opinions dealing with legal issues of little or no precedential value or of minimal public interest". An opinion will not be published if the court concludes that the opinion does not present "new points of law [giving] the decision ... value as precedent".

¶5Paragraph 2 of the Publication Guidelines clarifies this policy by specifying that Court of Appeals decisions should not be published unless they meet one or more of the following criteria:

(a) the opinion establishes a new rule of law [or] alters, clarifies[,] or modifies an existing rule; or

(b) the opinion involves a legal issue of continuing public interest; or

(c) the opinion criticizes existing law; or

(d) the opinion resolves or comments upon an apparent conflict of authority.

¶6If this court concludes that an opinion does not meet any of these criteria, the opinion will not be published. And to make sure that our appraisal of the opinion is binding, Paragraph 7 of the Publication Guidelines states that our unpublished decisions "[are tol be considered ... to have no precedential value."

¶7The original idea was that unpublished decisions would truly not be published-4.e., not widely disseminated, and not printed in the reporters. Copies would be sent to the parties and to all judges in the state, but the opinion would not be distributed to the public at large, nor would it be sent to any legal publisher. Paragraph 6 of the Publication Guidelines states that memorandum opinions are to be routinely distributed

only to the parties and/or their respective counsel, to justices and judges of the State of Alaska, and to the Administrative Director of the Court System, provided, however, that [memorandum opinions] shall be available upon request through the office of the clerk of the appellate courts to the press and to all members of the public.

¶8But in practice, distribution of our memorandum decisions has never been as limited as Paragraph 6 might suggest.

¶9Because this court's jurisdiction is confined to criminal cases and other litigation arising from eriminal cases, and because only a small percentage of the bar practices criminal law, this court has a fairly well-defined readership. There are three groups of lawyers whose professional duties motivate them to follow our decisions: judges, prosecutors, and criminal defense attorneys. Most of the prosecutors work for one state agency, the Alaska Department of Law. Moreover, a large number of the defense attorneys-and the ones who are most likely to litigate criminal appeals-are employed by (or work under contract with) one of two other state agencies: the Public Defender Agency and the Office of Public Advocacy. Our clerk's office routinely delivers copies of all of our memorandum opinions to these state agen-cles (even the decisions issued in cases not involving these agencies). So although this court has traditionally distributed only a few dozen copies of our memorandum decisions, those copies have always gone to essentially every judge and lawyer who regularly practices criminal law in this state.

¶10In addition, our memorandum opinions are now readily available on the Internet,. They can be found (and downloaded) at the Alaska Court System's web site (www.state.ak.us/courts/moj.htm), and they are also available through at least one of the electronic legal research services (West Publishing's "Westmate").

¶11In other words, our unpublished opinions are in fact "published" in the normal sense of the word: they are distributed to practically everyone who has a professional interest in reading them, and they are readily available to anyone else. It would seem, then, that our decision not to publish an opinion has only one real effect: as declared in Paragraph 7 of the Publication Guidelines, unpublished opinions "have no precedential value". But even here, the reality is not what the Guidelines suggest.

¶12One of the important tasks of lawyers and trial judges is to evaluate what an appellate court has done in the past and then, based on *65these past actions, predict what the court is likely to do in the future2 This court publishes only about one-fifth of its decisions3 This means that if judges and lawyers want to find out how we view the law and how we have applied the law in particular situations, most of the information they seek will be found in our memorandum opinions.

¶13Another fact of legal life in Alaska is that this court has only three members. In many states, the intermediate courts of appeal resemble the federal model: the courts are divided into districts or divisions, and each district or division often has many judges. In California, for example, there are six appellate districts and ninety-three intermediate appellate court judges.4 In such states, a memorandum decision issued by a single panel in a single district may have comparatively little weight, even within that district. But in Alaska, the same three judges decide almost every criminal appeal. Thus, even though our memorandum decisions may not be citable as legal precedent, they are a relatively good predictor of how this court will evaluate future cases.

¶14Given all this, it is hardly surprising that trial judges and lawyers use our memorandum decisions in ways not contemplated by Paragraph 7 of the Publication Guidelines. It is not unusual to read a transcript of trial court proceedings in which the lawyers and the judge discuss one of our memorandum opinions because the decision is seemingly pertinent to the case before them. If pressed, they will acknowledge that the memorandum decision is not "precedent", but they treat it as if it were precedent-because, for the purpose of predicting our future action, it practically is.

¶15This fact was brought home to me when this court was working on the venue issue in John's case. We were trying to figure out what Criminal Rule 18(b) meant, so we asked the Court Rules Attorney if we could examine the legislative history file on Criminal Rule 18. In that file, we discovered a copy of our memorandum decision in Wilson v. State. The Rules Attorney had kept a copy of Wilson because, in Wilson, this court construed Rule 18(b). True, Wilson was not a published decision, but it was our only decision construing Rule 18(b), and there was no reason to suppose that we would reach a different decision in a subsequent case.

¶16Our discovery of Wilson in the Rules Attorney's file demonstrates a pitfall inherent in our system of "published" and "unpublished" decisions: so many of our decisions are unpublished that, given enough time and enough change of personnel, the court "forgets" that we issued those decisions. West Publishing only recently started including our memorandum decisions in their databases, so any memorandum decision issued more than a couple of years ago is very hard to find through normal search techniques. Wilson was issued twelve years ago, in October 1989. Even though Wilson contains a direct ruling on the venue issue presented in John's appeal, we did not know about that ruling until we found a copy of the decision in the Rules Attorney's file,

¶17This problem of "lost" decisions is exacerbated by the rules that seemingly forbid attorneys from bringing our prior memorandum decisions to our attention. I do not know whether the attorneys in John's case were aware of Wilson. But if they were, they knew that Wilson was unpublished and therefore not "precedent", and they probably concluded that there was no proper way for them to apprise us of Wilson's interpretation of Criminal Rule 18 and then ask us either to re-affirm or overrule Wilson.

¶18I am aware of the growing controversy over the propriety-even the legality-of ap*66pellate courts' issuing unpublished opinions.5 For present purposes, I assume both that Standing Order No. 3 is legal and that it embodies salutary policy. But if we are to divide our opinions into "published" and "unpublished", we must endeavor to apply the Guidelines for Publication in a careful and consistent manner.

¶19Wilson is an example of an opinion that should have been published. In Wilson, this court construed Criminal Rule 18(b) and rejected the argument that a felony committed in the Delta Junction venue district should presumptively be tried in Delta Junction. Referring to the criteria for publication listed in Paragraph 2 of the Guidelines, Wilson "establishe[d] a new rule of law ... [or] clarified] ... an existing rule", and it also "involve[d] a legal issue of continuing public interest".

¶20In the future, I promise to pay close attention to the Publication Guidelines when this court decides whether to publish an opinion. In addition, I encourage litigants to ask for publication of memorandum decisions that appear to meet the criteria found in Paragraph 2 of those Guidelines.

¶21Appendix

¶22GUIDELINES FOR PUBLICATION OF COURT OF APPEALS DECISIONS

¶231. Statement of policy. It shall be the general policy of the Court of Appeals to avoid the use of lengthy opinions dealing with legal issues of little or no precedential value or of minimal public interest and to reduce the proliferation of published opinions. It is unnecessary for the court to issue fully explained, written opinions in every case. Similarly, it is unnecessary for the court to publish all decisions, whether explained or unexplained. The fact that a decision is unexplained or not published does not signify that the case is considered by the court to be unimportant. It does mean that, in the view of the court, no new points of law making the decision of value as precedent are believed to be involved.

¶242. Standard for publication of opimions. A decision of the [Clourt of [Alppeals shall not be designated for publication unless:

(a) [tlhe opinion establishes a new rule of law [or] alters, clarifies[,] or modifies an existing rule; or

(b) the opinion involves a legal issue of continuing public interest; or

(c) the opinion criticizes existing law; or

(d) the opinion resolves or comments upon an apparent conflict of authority.

¶253. Decision to publish publication of concurring and dissenting opinions. Decisions of the court shall be published only if the majority of the judges participating in the decision find that a standard for publication as set out in Section 2 of these guidelines is satisfied, except that an opinion shall be published if it is accompanied by a separate concurring or dissenting opinion, and the author of the separate opinion desires that it be published and distributed to regular subscribers. Dissenting or concurring opinions should be designated for publication only if the dissenting or concurring judge determines that a standard for publication as set out in Section 2 of these guidelines is satisfied. Any originally unpublished opinion, concurrencel[,] or dissent of the [CJourt of [Aljppeals may subsequently be published by order of the Alaska Supreme Court.

¶264, Partial publication. If a standard for publication as set out in Section 2 of these guidelines is satisfied as to only a part of a decision, the court may designate only that part for publication.

¶275. Time for deciding on publication. The members of the court shall, in each case, consider the question of whether or not to publish an opinion at the initial conference on the case[1 and{[,] at that time, make a tentative decision whether or not to publish.

¶286. Designation of decisions. All decisions that are found to satisfy a standard for publication as set forth in Section 2 of these *67guidelines shall be designated simply as "OPINIONS" of the court. All explained decisions of the court which do not meet any standard for publication specified in Section 2 of these guidelines shall be designated as "MEMORANDUM OPINIONS [AND] JUDGMENTS" and shall not be published. An OPINION or a MEMORANDUM OPINION AND JUDGMENT of the court may be signed by the judge who wrote it or may be issued in per curiam form, and these designations shall have no effect on whether the OPINION or MEMORANDUM OPINION AND JUDGMENT is published. All unexplained decisions of the court shall be designated as "SUMMARY DISPOSITIONS" and shall not be published. Unpublished decisions of the Court of Appeals shall routinely be distributed only to the parties and/or their respective counsel, to justices and judges of the State of Alaska, and to the Administrative Director of the Court System, provided, however, that at all times unpublished decisions of the [Clourt of [Alppeals shall be available upon request through the office of the clerk of the appellate courts to the press and to all members of the public.

¶297. Precedential value of unpublished opinions. In keeping with the provisions of [Alppellate [Rlule 214{,] unpublished decisions of the [Clourt of [AJppeals, whether in the form of MEMORANDUM OPINIONS [AND] JUDGMENTS or SUMMARY DISPOSITIONS, shall be considered by the court to have no precedential value.