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The problematic jurisprudence of uncitable appellate opinions in the internet era

Why should appellate courts be able to overrule or alter the decisions of lower courts?  Why should they have the authority to make important and often far-reaching decisions on matters of public policy–that can only be prospectively modified and can only be modified by legislative change or, when constitutional issues are involved, by amending the constitution?  What gives their decisions legitimacy?

I see three ways that such decisions obtain legitimacy.  The first is that the decisions are explained in writing and in such a way that they harmonize with prior case law and statutes.  A well-reasoned appellate opinion justifies its result by noting past decisions in which similar cases applied the same legal principle with the same result.  Appellate decisions sometimes have dissenting or concurring opinions not because some of the deciding judges have ignored this process but because there is disagreement on the “facts” of the case, on the proper legal principles to be applied, or on which prior cases are most similar to the present case.

Sometimes the appellate courts will use a judicial decision to overturn past precedent.  Often they will do so obliquely as in Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007), in which the South Carolina Supreme Court abolished the application of laches to defeat alimony collection actions.  Sometimes they will do so explicitly as in Lawrence v. Texas, 539 U.S. 558 (2003), in which the United States Supreme Court overruled its previous decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and decided that laws criminalizing private homosexual conduct between consenting adults violated due process or equal protection guarantees, or as in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), in which the United States Supreme Court appeared to overrule United States v. Miller, 307 U.S. 174 (1939), and decided that the Second Amendment to the United States Constitution created an individual right to bear arms.  Appellate courts try to avoid explicitly overruling previous decisions–the majority opinion in Heller denied it was doing any such thing–because doing so makes the courts look legislative rather than judicial.  They will typically only overrule past decisions when time and experience shows that the prior decisions were poorly reasoned and led to injustice.  Courts are so cautious about explicitly overruling past decisions that they have developed a doctrine, stare decisis, in which the appellate courts will decide to follow precedent rather than correct a possible injustice because the desire for stability in judicial determinations outweighs the perceived injustice.

The second way in which appellate decisions obtain legitimacy is that they are publicly recorded.   Publicly recording such decisions allows the general public to review, analyze and critique appellate decisions.  In theory, if an appellate judge issues rulings which are based on outside or corrupt influences, this might be gleaned from a reading of that judge’s opinions and that judge could then be impeached.  In theory, an appellate judge who continuously issues (or supports) opinions which favor plaintiffs–or defendants–or government over corporations over individuals (or any permutation thereof) might not be reelected due to these perceived tendencies.

The third, and perhaps the most important, way in which appellate decisions obtain legitimacy is that they can be cited as authority in subsequent cases.  An important part of drafting appellate opinions is noting which prior cases and legal principles are most analogous to the case at hand.  In drafting appeal briefs or preparing for oral argument, I look to past cases and then try to argue that the factual and policy issues in cases favorable to my client’s position are more on point than the factual and policy issues in cases that are not favorable to my client’s position.  In theory, unless an appellate court explicitly decides to overrule a past decision, every decision that an appellate court issues should be in harmony with previous appellate court decisions.

The ability to rely upon this harmony is what provides appellate decision making stability and legitimacy.  If tomorrow the South Carolina Supreme Court rules that all monthly student loan payments that were incurred in pursuit of a professional degree in which a party now works within that profession should be deducted from income in determining income for the purpose of setting child support (an issue that has repeatedly come up in my practice but remains unresolved in South Carolina law), I should be able to rely upon that decision when I have a case involving child support and student loan debt for a client working within a profession.  Were the law to tell this hypothetical client, “well, we allowed that other professional to deduct his student loan payments from income but we won’t allow you to do it” without providing any legitimate reasoning for this distinction, that client would rightly perceive the decision as unjust.

This requirement that appellate decisions be harmonized with past appellate decisions greatly constrains appellate decision making.  Tomorrow our Supreme Court could announce a decision that custody should be routinely awarded to the parent with the nicer house but then it shouldn’t be surprised that parents begin fighting over whose home is nicer (and going deeply into debt buying nicer homes) or that the family courts begin routinely placing children with problematic parents living in nice homes.  The need to look beyond the individual case and consider the ramifications for future cases when issuing their opinions constrains the appellate courts from incautious or unthoughtful decisions.

Which is all a long-winded prelude to the point of his blog: Can the release of appellate opinions that cannot be cited as authority be justified in the internet age?   S.C. Code Ann. § 18-9-280 authorizes unpublished opinions in limited circumstances:

[T]he Court may file memorandum opinions in unanimous decisions when the Court determines that a full written opinion would have no precedential value and any one or more of the following circumstances exists and is dispositive of a matter submitted to the Court for decision:  (1) that a judgment of the trial court is based on findings of fact which are not clearly erroneous;  (2) that the evidence of a jury verdict is not insufficient;  (3) that the order of an administrative agency is supported by such quantum of evidence as prescribed by the statute or law under which judicial review is permitted;  (4) that no error of law appears.

South Carolina Appellate Court Rule 268(d)(2) states that “Memorandum opinions and unpublished orders have no precedential value and should not be cited except in proceedings in which they are directly involved.”  Thus appellate decisions that meet the criteria of § 18-9-280 can be issued as memorandum opinions, and such opinions cannot be cited in other cases.

If the appellate courts strictly followed the criteria of § 18-9-280 this would not be problematic: numerous meritless appeals are filed in order to comply with due process requirements (e.g. criminal cases, post conviction relief cases, abuse and neglect cases and termination of parental rights case).  Appellate courts should be able to resolve these appeals in a summary fashion.  Other times appeals are brought which raise no interesting or novel factual or legal issues and these too should be able to be resolved in a summary fashion.  However, our appellate courts have been issuing numerous memorandum opinions in which novel issues of law are analyzed or the lower court ruling is reversed.  I have had only two appeals result in a summary opinion, yet well over half the appeals I have been involved in resulted in opinions which were unpublished.  Some of these unpublished opinions partially reversed or substantially modified the family court’s ruling; I do not believe any of such decisions could meet the criteria of  § 18-9-280.  Sometimes our Court of Appeals has even issued memorandum opinions that are subsequently reversed by the Supreme Court: any case which the Supreme Court found interesting enough to grant certiorari is interesting enough that the Court of Appeals’ opinion should have been published.

The South Carolina appellate courts have been releasing their memorandum opinions online since January 2004.  By my reading many of these memorandum opinions fail to meet the criteria of § 18-9-280 and should have been published (and therefore citable).   Appellate decision making that cannot be cited as authority undermines the jurisprudential legitimacy of that decision making: either these lengthy memorandum opinions can be harmonized with existing decisions and should be citable or they cannot be harmonized with existing decisions and they should not have issued.

In October 2008, the Court of Appeals issued a news release announcing a new case processing system.  One stated goal was “to reduce the number of lengthy unpublished opinions it issues. …If the judges decide to issue an unpublished opinion, they will do so in a short and summary fashion, often pursuant to Rule 220(b)(1), SCACR.  If a lengthier analysis is required, a published opinion will be drafted and filed.”

The Court of Appeals has done a better job of not issuing lengthy unpublished opinions since this news release.  However both jurisprudence and the requirements of § 18-9-280 would seem to argue that there should be no lengthy unpublished opinions.  If an appeal raises issues significant enough to require analysis, that opinion ought to be published and usable as authority in subsequent cases.

Before the world wide web, cost constraints were a possible excuse for not publishing every appellate decision that required lengthy analysis.  However the failure to publish (and make citable as authority) every non-summary order of the appellate courts is no longer justifiable.  Not only does it limit legal analysis of common legal issues (because the appellate courts do not publish their orders there is almost no South Carolina case law analyzing when petitions for supersedeas from family court will be granted, making it difficult to advise clients on whether to pursue this option) but the appellate courts have frequently issued uncitable opinions dealing with novel issues.  The two appeals I handled in Walters v. Walters both dealt with novel issues.  The appeal from the divorce action concluded that fault for divorce was not necessarily equivalent to fault in the breakup of the marriage and that withholding sexual intimacies was a legitimate factor in denying alimony.  The appeal from the rule to show cause modifying custody noted that application of Rule 54, SCRCP may give a party in a family case the right to seek fees in a post trial motion.  I would love to cite these opinions as these issues arise repeatedly; under SCACR 268(d)(2), I can’t.

No appellate decision that requires lengthy analysis should be uncitable.  To allow such opinions to be issued on an uncitable memorandum basis slows the development of case law and undermines the legitimacy of appellate decision making.

Thanks to Ms. Jeanette Barber, Clerk of Court for the South Carolina Court of Appeals, and Chief Judge Kaye Gorenflo Hearn of the South Carolina Court of Appeals (soon to be Associate Justice of our Supreme Court) for their assistance in providing me a copy of the news release announcing the Court of Appeals’ new case processing system.

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