As How Appealing reported, the Ninth Circuit issued a rather strange unpublished decision yesterday.  The decision, Tuite v. Martel, reversed the denial of a state prisoner’s habeas petition.  In essence, the court disagreed with a California court’s decision that an admitted Confrontation Clause error at the defendant’s murder trial was harmless error.  I don’t really understand the decision (for instance, why isn’t there any mention of AEDPA‘s deferential standards?), but the really strange thing about this opinion isn’t the disposition–it’s the first footnote in the opinion.

Right at the beginning of the opinion, in a little starred footnote, is this odd caveat:

This disposition is not appropriate for publication and is not precedent except as provided by [a Local Rule].  The panel finds that a published opinion might cast unjust aspersions upon those not before the court. 

The little “unjust aspersions” line is simply a fancy way of saying, “We’re worried this opinion might make someone look bad.”  (I think the court is referring here to an expert for the prosecution whose testimony spurred the confrontation clause problem.)  Evidently, the court is now worried about non-parties’ reputations in criminal cases. Nevermined that this “unpublished opinion” is available online, on Westlaw and Lexis, and will be printed in the Federal Appendix, where people can draw whatever conclusions about the witness’ character they wish.

This case strikes me as another example of an appellate court abusing its ability to designate cases for publication. When cases are published, they are, of course, deemed precedential; they therefore provide lower courts and litigants with guidance in resolving often complicated issues. Here, however, the Ninth Circuit decided to render this analysis on harmless error a nullity merely because they were worried it might accidentally besmirch the name of a non-party.  Nevermind that the facts recited are all true.

As Orin Kerr recently recognized, some courts have a tendency to issue a lot of unpublished opinions. To be sure, many of these unpublished cases are one or two page shots that simply deal with the clear and easy cases. But in some circuits, especially my “old” circuit (the Fourth Cicuit), courts routinely issue full but unpublished analyses on new or difficult issues of law or in other significant cases.

That practice is extraordinarily disappointing, as the only thing it does is encourage confusion and uncertainty, just so an appellate court can avoid having to live with the consequences of its own reasoning.  Judging is tough, but that’s why we supposedly pick such talented people to fill the role. To allow circuit courts to “get away” with throwing out a bad decision in a single case (with no fear of any long-term consequnces) is to allow them to shirk their important responsibilities.  And as Judge Richard Arnold suggested, it might even be a violation of Article III to allow judges to irrationally “change their minds” on an issue by issuing conflicting unpublished opinions:

We can exercise no power that is not “judicial.” That is all the power that we have. When a governmental official, judge or not, acts contrary to what was done on a previous day, without giving reasons, and perhaps for no reason other than a change of midn, can the power that is being exercised be called “judicial”? Is it not more like legislative power, which can be exercised whenever the legislator thinks best, and without regard to prior decisions?

In my view, if appellate courts are going to use a case to opine on the state of the law–in other words, if they offer more than a summary disposition–then we should hold them to it. Such an approach would bring greater clarity to issues of law, keep collateral issues (such as a party’s potential embarrassment) from affecting the development of important precedents, and force appellate judges to consider carefully the consequences of their reasonings in each case.  (Plus, it would put an end to those infuriating opinions wherein an appellate court scolds a party for relying on an unpublished opinion because it is “not precedent.”  If you didn’t want the opinion to be read, why write it? And of course counsel are going to go out and read an unpublished opinion that’s on point an effort to anticipate the judge’s thinking, so why not allow him to rely on it?) It would be better if judges stopped “publishing” these little footnotes and odd local publication rules entirely and focused more on getting every case right.

-Michael