Thursday, April 13, 2006


We have just reread a post by Joel Jacobson, Esq. on the subject of unpublished appellate court opinions in federal courts. See his weblog, "".
His post, as usual, is well-written and informative.

The justification for "unpublished" opinions is that nothing new or novel is involved in the appeal; no need for the Court to write out its reasons for ruling, as the correct ruling is obvious, a slam dunk. There are cases in which the rule is abused, and opinions are declared "not to be published, nor cited as precedent," for no good reason. Some cases (appellate decisions and opinions) are embarrassing and need to be swept under the rug.

It happens in the appellate court in New Mexico, too. Good examples are cases in which the criminal (including murderers) are freed because the District Attorney makes a clerical mistake, fails to apply for an extension of the "six-month rule." Or the Clerk makes a clerical error in the Court records If the public knew how many criminals were freed on technicalities, they would cry, "Outrage!"
(The six-month rule, which is not required by the federal or State Constitutions, is a rule adopted by the Supreme Court of New Mexico, and may be repealed by a majority of that Court).

The Tenth Circuit Court of Appeals has ruled, in an unpublished opinion, that a citizen could not sue a municipality for alleged destruction of audio-taped evidence. Was the case important? Yes. Was it a case of first impression? Yes. Did the Court explain its ruling, so others could be guided by it? No.

The New Mexico Court of Appeals (with tacit approval of the Supreme Court of New Mexico, ruled in an unpublished opinion that an armed robber should go free under the six-month rule. The Clerk of the District Court had made a note that the accused was "arrested" when he was booked into jail. The Court of Appeals ruled that the "arrest" occurred at the hospital 90 days earlier (accused had broken his leg while escaping after the robbery). The defense attorney had asked for a continuance, and specifically assured the trial Court that there was time for the postponement without violation of the six-month rule.

On appeal from the ruling of the trial Court that the six-month rule was never intended to require a release of an accused under such circumstances, the Court of Appeals issued an opinion releasing the accused free of all charges; and the appeals Court specified that the opinion was not to be published nor cited as precedent. The result was that the news media also did not discuss the case; so the Supreme Court was not embarrassed by the six-month rule.

The rule that allows "unpublished" opinions results in unwarranted secrecy. It is ill-advised, and contrary to good government. The rule should be abolished by the Court which adopted it, the Supreme Court of New Mexico. The impetus could be brought by the legislature; but it has no power to adopt any legislation which would be repugnant to the New Mexico Supreme Court's rules. In this respect the New Mexico Supreme Court has more power in such matters than the Supreme Court of the United States(which can be overruled by the Congress in regard to rules).