867 S.W.2d 787 - Weirich v. Weirich

Justice ENOCH

¶1concurs with denial of motion to publish.

¶2My colleague, Justice Doggett, reiterates points that are routinely raised in the continuing debate about whether the opinions of intermediate appellate courts should be published. Belied by the stridency of his commentary, Justice Doggett’s opinion, however, simply demonstrates the problem encountered with a rule that dictates non-publication of an intermediate appellate court’s opinion unless the opinion satisfies certain criteria. That is, that judges can disagree on whether a particular decision meets the criteria of Rule 90(d) and should, therefore, be published.1 Tex.RApp.P. 90(d).

¶3I agree that this case exposes the problem with the non-publication rule. However, as with all debates there is another side — the huge cost to legal practitioners, and ultimately the consumer of legal services, to maintain enormous libraries of legal treatises and case opinions. See David M. Gunn, “Unpublished Opinions Shall Not Be Cited As Authority”: The Emerging Contours of Texas Rule of Appellate Procedure 90(i), 24 St. Mary’s L.J. 115, 144 (1992); Hon. Frank G. Evans, Hon. James F. “Bud” Warren and Lynne Libera-to, To Publish or Not to Publish? That is the Question, 24 Houston Law. 18 (July-August 1986).

¶4The fourteen courts of appeals in this state are issuing opinions in thousands of cases every year. See Office of CoüRT AdministRation, Official Docket Activity RepoRT FOR THE FOURTEEN COURTS OF APPEALS 6 *788(Aug. 1993). Between September 1992 and August 1993, a total of 2,169 opinions were ordered “publish.” But, if all opinions rendered had been ordered “publish,” the number of published opinions would have been 9,380.2

¶5In the debate over whether to have a non-publication rule, it is important to note that all opinions, regardless of the “publish” designation, are available to the public.3 They are public documents. To order “publish” of an opinion has no effect at all on the “publicness” of the opinion of the court. For the public, such an order only has the effect of requiring the opinion to be placed in a book of a private publisher, who then has a new product to sell to the lawyer, who then passes that cost on to the consumer. Of course, the legal effect of a “publish[ed]” opinion is that the case can then be “used” by the legal practitioner in the trial and appeal of cases. But, again, this means that a competent trial and appellate attorney will buy the book in which the opinion is “publish[ed],” and therefore, the consumer will ultimately pay the bill.

¶6Perhaps there is a better way to resolve the competing interests of, on the one hand, the ability of counsel to use an opinion that ultimately should have been published, but was not, and on the other hand, the reality of escalating costs for legal libraries.4 However, it seems to me that moving to a resolution is not furthered by resorting to emotional language, appealing to the most cynical of cynics, or disparaging our fellow members of the judiciary.5

¶7 *789Because I agree with the majority of this Court that the opinion by the court of appeals below does not satisfy the criteria for “publish” under Rule 90(d), I join with the Court’s denial of the motion to publish.

¶8. Justice Doggett implies that the courts of appeals are somehow acting erroneously by not publishing their opinions. 867 S.W.2d at 789. To the contrary. Rule 90(d) works the reverse. Opinions are not to be published unless the opinion satisfies the elements for publication set forth in that rule, in which event the courts of appeals are then to order that the opinion be published. Rule 90(d) states:

An opinion by a court of appeals shall be published only if, in the judgment of a majority of the justices participating in the decision, it is one that (1) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases; (2) involves a legal issue of continuing public interest; (3) criticizes existing law; or (4) resolves an apparent conflict of authority.

¶9TexR.App.P. 90(d) (emphasis added).

¶10. Not only is the substantial number of opinions issued by the courts of appeals every year one reason given for having a non-publication rule, but the dramatic increase in court productivity also supports the reasoning of the proponents for a non-publication rule. The courts of appeals wrote 6,147 opinions in 1983, up from 1,820 in 1980. See Hon. Max N. Osborn, Publication of Opinions By the Texas Courts of Appeals, 47 Tex. BJ. 655 (1984).

¶11Furthermore, Texas is only one of several states that have found it necessary to regulate publication of intermediate appellate court opinions. See e.g., Ariz.R.Sup.Ct. 28; Ark.Suf.CtR. 5-2; CalR.Ct. 976; Conn.Gen.Stat.Ann. § 51-215; Del.Sup.Ct.R. 93; Hawaii R.App.Pro. 35; Ind. R.App.P. 15; Ill.Rev.Stat. ch. 110A, ¶ 23; Iowa Sup.Ct.R. 10(b); Kan.R.S.Ct. 7.04 (found in Kan. StatAnn. § 60-2701a (1983)); KvR.Civ.P. 76.28; Md.R.P. 8-114; Mass.R.Ct. 1:28; Minn.R.Civ. App.P. 136.01(l)(b); N.Y.JudIaw § 431 (McKinney 1983 & Supp.1993); Okla.Stat.Ann. tit. 20, § 30.5 (West 1991 & Supp.1993); N.J.R. 1:36-3; Utah Code of Judicial Admin.Rule 4-508; Wash.Rev. Code § 2.06.050 (West 1988 & Supp.1993); Wis. StatAnn. § 809.23(d) (West 1993).

¶12Also, I note that Justice Doggett asserts that my reference to this "much larger number is misleading." 867 S.W.2d at 790 n. 4. It is, but only where one deletes any mention of opinions in criminal cases (the courts of appeals also handle intermediate appeals in most criminal cases) and, then further, makes all criticism of a rule regarding non-publish applicable to only those cases in which a motion to publish has been filed. Id.

¶13. Justice Doggett’s opinion gives subtle clues that he really is not saying the public has no access to these opinions. For example, he opens with "the public has lost any real, continuing use [of the opinion].” 867 S.W.2d at 789. He then refers to an "expanding body of semi-secret law.” 867 S.W.2d at 789. Also, he expresses concern about "concealing such opinions from public usage.” 867 S.W.2d at 789. Finally, he concedes that public access is a problem regardless of whether the opinion is ordered "publish” or not. 867 S.W.2d at 790.

¶14. A possible suggestion is that in lieu of having a rule regarding when intermediate appellate courts' opinions should be published, those courts should be permitted to resolve appeals by way of memorandum orders and not be required to write a full opinion in every case. See Justice George Rose Smith, The Selective Publication of Opinions: One Court's Experience, 32 Ark.L.Rev. 26, 27 (1978). Another suggestion is to have a category approach to deciding whether to publish opinions. See Hon. Frank G. Evans, Hon. James F. "Bud” Warren and Lynne Liberato, To Publish or Not to Publish? That is the Question, 24 Houston Law. 18 (July-August 1986).

¶15. To this comment, Justice Doggett retorts that his is but “legal realism,” not "cynicism.” 867 S.W.2d at 789 n. 1.

¶16Legal realism is the fact that over 80% of the applications for writ of error to the Texas Supreme Court that are granted are in cases where the court of appeals has ordered its opinion to be "publish[ed].” Accord 867 S.W.2d at 789 n. 1. This means that at least four justices on this court, in a significant number of instances, agreed with the majority of a panel on the courts of appeals that, indeed, the case in which that court voted to "publish" the opinion was a case meeting the criteria of Rule 90. Essentially, the case was legally significant to the jurisprudence of the State. However, Justice Doggett's comment is that "one [reason for non-publish] ... no doubt ... is the hope [by some of our courts of appeals] that a lesser standard of scrutiny will be *789applied by this court.” 867 S.W.2d at 789 (emphasis added).

¶17Cynicism is the speculation that this high incidence of correlation between granted applications for writ of error and published opinions results from improper motives, as opposed to proper motives, of justices of the courts of appeals.