All opinions should be online, lawyer argues

Ann Knef Jan. 18, 2007, 11:43pm

Tucked away in the vaults of Illinois' five appellate courts, most decisions arrived at by justices barely see the light of day. Illinois Supreme Court "Rule 23" maintains that non-precedential rulings, the vast majority of those delivered, need only be distributed to litigants and the trial court.

Pennsylvania attorney Howard J. Basham argues that the time has come for state appellate courts "to abolish their practice of hiding from public view the vast bulk of their rulings," in a recent commentary.

He said that state legislatures should follow congress and force information onto the Internet.

"In the not too distant past, some federal appellate courts were likewise guilty of this reprehensible practice of hiding from public view their non-precendential rulings," Basham wrote. "But then the United States Congress passed into law the E-Government Act of 2002."

The law requires federal appellate courts to post precedential and non-precedential opinions online.

In Illinois' Fifth District Appellate Court, the number of decisions posted online is dwarfed by the number of cases actually disposed.

For instance, in 2004 there were approximately 77 opinions made available on the court's website, yet 812 cases – criminal and civil -- were disposed of that year. In 2005, approximately 56 opinions were posted online compared to 751 disposed of criminal and civil cases. The number of cases disposed of in 2006 is not available on the court's website, however approximately 67 opinions were issued online last year.

Fifth District Appellate Court Clerk Louis Costa said court opinions are written and available for public view. By specifying a particular case, those not posted on the Internet may be obtained from the clerk's office at a cost of 25 cents per page, he said.

Ed Murnane, president of the Illinois Civil Justice League, said his organization is in favor of "as complete and open records as possible."

But he recognizes that in some cases, information ought to be protected.

"In some instances, rulings by the court ought to be kept under seal," he said. He cited cases involving juveniles or trade secrets, for example.

"We understand that the public and the press should have easy access," Murnane said.

Basham says appellate court judges may be "reluctant" to make the transition.

"Judges are creatures of habit, and appellate courts' longstanding practice in general is to issue non-precedential opinions only to the parties and the trial court judge," he wrote. "Non-precedential rulings don't receive the time and attention that for-publication rulings get, and judges are often reluctant to facilitate access to work that is not their best."

"In addition," he wrote, "judges may be concerned that providing easy access to non-precedential rulings will encourage lawyers and litigants to cite to such decisions, in violation of state court rules that may discourage or prohibit doing so.

"On the other side of the ledger is the massive loss to the public of the wealth of knowledge contained in the public records that non-precedential state appellate court rulings represent."

Basham suggests that if congress can pass an "E-law," state legislatures can as well.

"In 2006, the battle for the ability to cite federal appellate courts' non-precedential rulings ended in victory," he wrote. "In 2007, the battle for easy access to non-precedential state appellate court rulings should be renewed with vigor -- and if reason prevails, that battle, too, will end in victory."

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