First came vanity plates. Now, get ready for vanity opinions.
Lawyers who get an unpublished opinion from the Court of Appeals would be able to buy their way into the official reporter, under bills now before the General Assembly.
Most Court of Appeals opinions wind up on the 30(e) list. Translation: they go unpublished. Last year, 959 of 1,400 opinions never made print.
Published opinions are preserved in the official reporters for posterity. They have precedential value for all future cases.
By contrast, unpublished opinions are relegated to a list. The bound volumes contain only their name, their outcome and a few other sketchy details. They have no precedential value.
The court’s decision to hand down an unpublished decision is in part a practical one. It cuts down on printing and storage costs. Cases also get branded with a Rule 30(e) designation when the court decides no new legal principles are involved.
However, Senate Bill 1012 and House Bill 1042 would allow lawyers to override Rule 30(e). If adopted, either party could pay the cost of publishing and storing an unpublished opinion.
The cost could not exceed $500, the bills state. Once published, the opinion would be “treated in all respects as a published opinion.”
That has court officials scratching their heads.
“If it’s published and placed in the official court reporter, what happens?” asked Frank Dail, administrative counsel to the Court of Appeals. “Does that mean you somehow treat it as published and unpublished? Does that mean a party can overrule the court’s decision not to treat it as precedent?”
A Court of Appeals judge privately said that bill raised separation of powers issues.
Case law is settled that court procedure rules control when they conflict with legislative action.
Even as the bills advance, court officials are looking at ways to tweak Rule 30(e). Currently, there is no formal method for asking the court to reconsider its decision not to publish an opinion. One possible fix would spell out that either party may, by way of motion, request that an opinion’s status change from unpublished to published.