March 22, 2009|By Melissa Harris | Melissa Harris,melissa.harris@baltsun.com
"The decision on publication was one of the objections some of the legislators had," said retired Court of Special Appeals Judge Charles E. Moylan Jr. "What's it going to cost us to print all of these decisions? It's going to be a fantastic taxpayer burden to put all of these books out. So early on, it was decided that clearly we needed to publish some of our decisions but not all of them."
The state currently has a little more than 180 volumes of reported appellate opinions, Moylan said. Had the court published all of its work, he estimated that number would be more than 1,000.
Opponents of more widespread reporting say appellate courts already publish a considerable amount of case law. More paper would just raise client fees, state expenses and possibly require more judges - with little gained in return.
Posting the opinions online or in legal databases would prove too tempting for lawyers, who would rely on the non-binding decisions to make their cases even though they shouldn't, Bair said.
"Personally I don't see any sense in having them available if you can't use them," said Geraldine K. Sweeney, chief of the appellate division for the State Public Defender's Office. "Theoretically, everything that's in an unreported opinion has been said before in a reported one. You can't use it, and you shouldn't need it."
Attorney Andrew Baida said changing the rules would also create more delays in the court.
Cases argued before the Court of Special Appeals take, on average, a year to complete, according to statistics from fiscal year 2007, when more than 2,100 appeals were filed. The court issued 1,301 opinions that year, an average of 100 per judge, although retired judges often hear cases.
The chief judge of the Court of Special Appeals, Peter Krauser, declined to be interviewed for this article. Through a spokesman, he said that he has begun a "preliminary review" of the issue of unreported opinions.
Typically one judge - the one writing an opinion - decides whether the work meets the standard for publication; it has to say something "substantially" new. If so, the case goes before the entire court at its monthly meeting for consideration.
Moylan said that in addition to deciding whether a case breaks new ground, the court has historically considered whether it involves a "notorious celebrity" such as the man who shot presidential candidate George C. Wallace in 1972.
But other than the opinion's author and perhaps other members of the bench, no one knows precisely why an opinion is reported or not.
Take the murder case against Kenneth Hiter Jr. During his trial in Baltimore, someone broke into the jury room, rifled through members' belongings and stole a cell phone, money, wallet and keys.
Veteran judge John N. Prevas had no idea what to do. Should he declare a mistrial? Would the jurors' victimization bias them against the defendant?
Prevas searched online legal databases for guidance from Maryland appellate courts. Finding none, he turned to examples from Chicago, where jurors are sometimes put up in hotels and all sorts of things are stolen. Following the reasoning in Illinois law, he continued the trial.
On appeal, three judges agreed with Prevas' handling of the matter. But the opinion's author, for unknown reasons, decided the case shouldn't go on the books.
"I think judges really would have benefited from that guidance," Prevas said.
"There's a handful of cases where they think the issue is old hat, when we don't think it's old hat."
Prevas' colleague, Circuit Judge John Glynn, said that the appeals court seems to select cases for publication that are "useful in helping lawyers try other cases."
But he wonders whether other factors, such as the strength of the logic behind a decision, also come into play.
He has faced situations where he knows the fair outcome but struggles "to come up with a really compelling rationale" for it.
"So [judges would] rather not print it," Glynn said. "They don't want people parsing these words 10 years from now."
