As discussed
last month, perhaps, the most common form of judicial inactivism
is the so-called "memorandum opinion." A
memorandum opinion is an unpublished judicial opinion that does not
create precedent (persuasive or mandatory) and is usually brief and
written only for the purpose of announcing judgment in a particular
case, usually where the law is well settled or where a particular set of
facts (such as
Harrington v. Wilson) may create "imprudent" case law (such
as case law unfavorable for the legal community. See Professor
Benjamin Barton's thesis,
Do Judges Systemically Favor the Interests of the Legal Profession).
Tenth Circuit Rule 36.1
provides that:
The court does not write
opinions in every case. The court may dispose of an appeal or
petition without written opinion. Disposition without opinion does
not mean that the case is unimportant. It means that the case does
not require application of new points of law that would make the
decision a valuable precedent.
This is what you might get for
your $450 docket fee, hundreds of hours of research (or many thousands
of dollars in attorneys fees). Yet, Colorado Court of Appeals Judge
Steven Benard seems to think that this is, "the best bargain in the
supermarket of modern litigation." 36 Colo.Law. 7, p. 105 (July 2007)
(citing Bruce M. Selya, Publish and Perish: The Fate of the Federal
Appeals Judge in the Information Age, 55 Ohio St. L.J. 405 (1994))
and that "the quality of judicial analysis and writing suffers if judges
write too many opinions." Id.
I have a different view of
Judge Benard's and Judge Selya's characterization: They're
both complaining about their workload and looking for a legal
rationalization for not giving every case full consideration. As
California Appeals Court Justice William "Beds" Bedsworth wrote in one
of his monthly A
Criminal Waste of Space columns:
I make a comfortable
living doing nothing more strenuous than thinking about things
people ask me to think about. There is no heavy lifting; no shift
work. I'm not re-quired to drive through snow and I don't come home
smelling of fish. When I'm done thinking about these things, I give
my "opinion" about them and start thinking about something else.
Anyone churlish enough to complain about such a job, anyone who
-asked so little- would fail to give every case, regardless of
whether it's handled by a successful attorney or a prison inmate,
full consideration, is an ungrateful lout.
IMPROPER
PERSONA,
45-Nov. O.C.Law 40 (Nov. 2003).
North Carolina Court of
Appeals, Sidney S. Eagles, Jr., noted that opinions actually are written
for the losing party:
The winners of the cases
often do not really care why they won. They are just very pleased
that they did. The lawyers on the losing side, however, need to be
satisfied that we have carefully analyzed the law and applied it in
a clear and straightforward fashion to their case. They want to be
assured that we understood all the facts (especially the facts
favorable to their side) and that we understood the law and applied
the law in a way that is logical, coherent, and consistent with
precedent and statutory intent, if applicable.
Eagles, Jr., Address from
Chief Judge Eagles, 35 Ind. L.Rev. 457, 461 (2002).
What typically happens in
pro se cases where weak arguments are presented, the court
will often provide a meaningful, thoughtful opinion, picking apart
(perhaps, with schadenfreude) the pro se appellant's flawed
reasoning, as happened in very typical cases, such as Yates
v. Arkin (eight pages) or
Rollins v. Ingersoll-Rand (seven pages).
However, in cases where the
pro se appellant's arguments are well-reasoned and complex,
it's too much work to even bother reading the briefs. That's why
Harrington v. Wilson resulted in a
1½ page 567-word opinion. And, because the briefs weren't read (by
anyone, apparently), the Tenth Circuit actually affirmed dismissal for
want of jurisdiction with prejudice. Only after the appellant pointed
this out in a
Petition for Rehearing (granted) did the court correct that error
(that could not have been possible but for the fact that the briefs had
not been read). However, the court could not admit that the briefs
weren't reviewed, because that would result in the performing real work,
reviewing the case on the merits, and reversing the judgment entirely.