Not publishing opinions to save the trial court embarrassment

I have been a past critic of the South Carolina Court of Appeals’ failure to publish opinions that do not meet the criteria of S.C. Code Ann. § 18-9-280 for leaving opinions unpublished.  Sometimes I read an unpublished opinion that, to my thinking, clearly doesn’t meet that criteria and the only reason I can figure for why the opinion remains unpublished is that the Court of Appeals wants to spare the trial judge embarrassment.

This certainly seems to be the case with yesterday’s unpublished opinion in Marrero v. Hankins.  There were three giant errors from the family court trial.  First, the family court judge failed to make findings of fact and conclusions of law to support the change of custody. See Rule 26(a), SCRFC (“An order or judgment pursuant to an adjudication in a domestic relations case shall set forth the specific findings of fact and conclusions of law to support the court’s decision.”).  Second, the family court improperly assigned precedential value to the temporary order. Rimer v. Rimer, 361 S.C. 521, 527 n.6, 605 S.E.2d 572, 575 n.6 (Ct. App. 2004) (“Temporary hearings are not de facto final hearings, and we adhere to the principle that temporary orders must be without prejudice to the rights of the parties at the final hearing.”).  Third, the family court issued its decision without the guardian ad litem submitting a written report. See S.C. Code Ann. § 63-3-830(A)(6) (2010) (making a guardian ad litem responsible for “presenting to the court and all parties clear and comprehensive written reports, including, but not limited to, a final written report regarding the child’s best interest.”).

Everyone makes mistakes, and expecting trial judges to never error, or seeking to defrock them if they error on occasion, is folly.  Still the unpublished opinion in Marrero seems to indicate an extreme amount of error, so much so that the Court of Appeals, citing Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 107, 536 S.E.2d 372, 374 (2000),  raised, ex mero motu [of the court’s own accord], issues not raised by the parties at trial in order to protect the best interests of the minor child.  It would have been valuable to publish Marrero, if only to establish when sufficient error occurs for the appellate courts to utilize these ex mero moto powers.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman
  • I see your point. But perhaps they will now publish all your errors in an effort to embarrass you? I hope not. But heck, we’re all people. Maybe I should have made this comment anonymously.

    • MJ:

      Maybe I didn’t make my point clearly. I don’t think the Court of Appeals should publish opinions to embarrass the lower court judges. However, sometimes I think they fail to publish opinions that would be valuable to cite because the lower court errors are so egregious or boneheaded that the Court of Appeals wishes to spare the lower court judge embarrassment. Marrero v. Hankins makes some interesting law and it would have been worth publishing.

      • I understood what you mean. I suppose my dry, odd-ball sense of humor fell short here.

  • Greg, you are correct that Marrero v. Hankins does not meet the second prong of S. C. Code Ann. Section 18-9-280. I once had a long discussion of this issue with the late Chief Justice George Gregory. His argument was that the Court does not want to clutter the South Carolina Digest with cases that simply restate settled and accepted law. My argument was that sometimes the memorandum opinion states the law better and more forcefully than prior opinions and therefore should be published. Not suprrisingly, Justice Gregory’s opinion prevailed.

    I also think that some of it has to do with the ego of the judge or justice writing the opinion. For example, Judge Goolsby’s opinions were much more likely to be either memorandum opinions or unpublished opinions, which I always attributed to healthy self-esteem that did not require support by being shown as the author of many published opinions.

    The way the Court avoids embarrassement to a judge, a lawyer, or a litigant is to write a short opinion that cites no authorities but just refers to “settled law” or “it requires no citation of authority.” With no internal citations, a case is less likely to be found in future research and is less likely to be cited in future opinions.

    These are solely my opinions. They have no precedential value and should not be cited as authority for any proposition.

  • Roy Stuckey

    There are some unpublished opinions discussed in my Marital Litigation in South Carolina book. Court of Appeals Judge Cureton, who was on the board of editors, questioned their inclusion in the book since they are of no precedential value and are not supposed to be cited. My reply was that some unpublished opinions are valuable to lawyers in predicting the outcomes of cases and advising clients. I also believe that trial judges are aware of and influenced by unpublished opinions.

    I do not think lawyers should hesitate to make trial and appellate “aware” of relevant unpublished opinions, if they address unique questions of law or clarify previous appellate decisions, that is, if they really should have been published in the first place. I think the risk of being disciplined for citing an unpublished opinion is pretty low. If I was a trial judge, I think I would appreciate it if a lawyer let me know that one of our appellate courts has issued an opinion about a relevant issue, even though it was unpublished.

    I would like to see the prohibition against citation repealed. In this electronic age, unpublished opinions are available to everyone, even though they are not bound and put in the library. To deny lawyers the ability to cite those cases is like saying “we really did not mean it” or “we did not apply the law in this case the same as we would in other cases.” These possible interpretations would, of course, be insulting to the litigants in those cases and reflect poorly on the courts that issued them. So, if we assume that unpublished opinions do mean what they say and do apply the law as it would be applied in other cases, why can’t they be cited?

    Does anyone know of a valid reason to prohibit citation of unpublished opinions?

    • Roy:

      As my previous blog criticizing unpublished opinions would indicate, you are preaching to the choir on this issue.

  • Lilly Collette

    Here’s another opinion on the issue: Writing the book on citing unpublished and non-precedential opinions:

    In the mid-1970s, the federal judiciary fundamentally changed the nature of precedent in the United States federal courts. It did so quickly and quietly: first, by issuing decisions as unpublished and not citeable, and then, by denying these decisions precedential status. Every opinion issued in this fashion deprives the law of a valuable precedent and ignores common legal conceptions of how our law works. While the recently enacted Federal Rule of Appellate Procedure 32.1 restores the ability to cite to these decisions, it does nothing to address the more critical issue of whether these decisions can be denied precedential weight, and even if so, whether they ought to be denied such value. This Article advocates a return to full precedential status for all federal court decisions based on Constitutional and community-based principles. Publication limits and citation bans have fallen away in light of modern technology and jurisprudential concerns. The related practice of issuing non-precedential opinions should likewise be ended. The practice is outdated at best and constitutionally infirm at worst. Moreover, it flies in the face of American legal and lay concepts of how our justice system works. Quite simply, the federal courts ought to recognize that they are bound by what they have done in the past and that they must apply, distinguish, or overrule those precedents rather than simply ignoring them.

    […] Obviously, uncitable opinions are not much use in resolving later controversies. Repeat players should be conscious of local circuit rules that may permit litigants, or other persons, to request an opinion’s publication. Typically, such requests, if permitted at all, must be made within a short time from the opinion’s issuance.

    • Lilly,

      I read that material and agree that it is fascinating. Thanks for cluing me in.

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