The Arizona Court of Appeals issued a 54-page ruling last month on the controversial issue of whether state lawmakers are required to provide more cash to certain public schools.
Only thing is, the decision wasn’t as visible as others and it was a little more difficult to find. That’s because the three judges decided to issue it as a memorandum decision, which specifies that the legal reasoning and its conclusions cannot be cited as precedent in future cases.
That designation also means the decision is not made readily available to the public — not even on the court’s Web site. In fact, the only way to find out that the judges ruled at all is to go to the court’s office and manually search those files.
And there are a lot of them. About nine out of every 10 appellate court rulings are memorandum decisions.
Now, lawyers are moving on two fronts to force the court to make more of its rulings available to the public.
One proposal by a subcommittee of the State Bar of Arizona would require these types of decisions to be more easily accessible to the public. It also would allow the memorandum decisions to be cited as precedent in cases where there is no published decision.
“The Court of Appeals is a public entity, it’s our government in action,” said attorney Thomas L. Hudson, who supports that plan. “As a general principle, shedding light on the way government functions is important in a democracy.”
Attorney Richard Coffinger, however, is calling for something more far reaching: He wants the decisions to be formally published. Only if the judges certify there is a specific reason not to do so could a ruling be put out as a memorandum decision.
But these ideas, which need approval from the Arizona Supreme Court, have been met with some opposition.
Appellate Judge Donn Kessler said there are some key reasons he and his colleagues choose to issue memorandum decisions.
“A good percentage of the briefs we get are either extremely poorly written, or an issue is not properly presented, or the record is not there,” he said.
Kessler said it would be wrong to put out a published decision — which then could be cited as precedent — in those kinds of cases.
Ruth McGregor, chief justice of the state Supreme Court, also was cool to the idea.
And McGregor, who was an appellate judge before being named to the state’s high court, conceded there’s something else at issue: Judges who are faced with 120 to 150 rulings a year just don’t take the same amount of time issuing decisions that they know won’t be published.
“You only have so many hours each day and weekend and night,” she said.
“There’s only a certain amount of time and care you can take in decisions,” McGregor said. “When they’re unpublished, it allows a little more freedom. So long as you get to the right result you don’t have to be quite so careful about the language that you’re using.”
But Coffinger is particularly critical that appellate judges can issue memorandum decisions yet overrule trial court rulings. He said the decisions’ general lack of public availability means that voters — who decide whether to retain both the trial judges in Pima and Maricopa counties as well as the appellate judges — don’t get a full opportunity to evaluate the performance of these judges.
Hudson said it is wrong to let the judges who write a ruling decide for themselves when it can and can’t be cited. He said it amounts to letting the appellate judges “hide” a decision.