The May 2008 issue of California Lawyer has an article called "Debate Heats Up Over Unpublished Opinions." The article reports on a lawsuit filed in October 2007, Hild v. California Supreme Court, No. C-07-5107-JCS (N.D. Cal.), in which the plaintif "argues that the state's publication rules violate Californians' due-process and equal-protection rights by creating 'a de facto policy of refusing review of unpublished decisions in civil cases.'" An excerpt:
The question of publication in California divides, roughly, the bar and the bench. A 2006 survey found that two-thirds of attorneys favored the citing of unpublished opinions, compared with only 28 percent of jurists-who, after all, must labor over the writing of those opinions.
For those who want to change the rules, the heart of the matter is the principle of stare decisis, says Ventura solo appellate attorney Greg May, author of The California Blog of Appeal.
Defenders of the current system, meanwhile, point to the already overburdened courts. Chief Justice George has said that allowing citation of all decisions would force judges, lawyers, and law clerks to sift through twelve times as many cases as they do now.
"The amount of work ... would drastically increase the cost of delivering legal services," adds David Axelrad, a partner with Encino appellate firm Horvitz & Levy. "One hundred percent of the appellate court decisions [would be] citable precedent-you'd have to read all of them!"
Kimberly Kralowec, an appeals attorney at San Francisco's Schubert & Reed, agrees that a change would mean extra work for lawyers. But she also finds some truth to the claim that the state Supreme Court is much less likely to grant review of unpublished decisions. "I can hear the frustration that is coming through in [the Hild] complaint," says Kralowec, who blogs at The Appellate Practitioner. "Whether it rises to a constitutional violation is a different story."
A copy of the complaint in the Hild case is available at this link. See also this post from California Injury Blog, the authors of which represent the plaintiff in Hild. My own prior coverage of this case is available here.
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