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Capitol Media Services
Tucson, Arizona | Published: 12.08.2006
PHOENIX — Last month, the state Court of Appeals issued a 54-page ruling on the controversial issue of whether state lawmakers are constitutionally required to provide more cash to certain public schools.
To the public affected, however, the decision was essentially invisible because the three judges issued it as a "memorandum decision."
That designation means the legal reasoning and conclusions reached cannot be cited as precedent in future cases. It also means the rulings are not available to the public on the court's Web site.
The only way to find out that the judges ruled at all is to go to the court's office and manually go through those files.
And there are a lot of them. About nine out of every 10 appellate-court rulings are designated as memo decisions.
Now lawyers are moving on two fronts to force the court to make more of its rulings accessible to the public.
One proposal by a subcommittee of the State Bar of Arizona would require these memorandum decisions be more publicly available. Now, a printed copy is filed with the clerk's office. But, unlike formal "published" opinions, they are not available on the court's Web site.
More significant, the proposal also would allow those memo decisions to be cited as precedent in other cases when there is no published decision on point.
"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."
A more far-reaching proposal by attorney Richard Coffinger would have all decisions be formally published unless the judges certify there is a specific reason not to.
But the ideas, which would have to be approved by the Arizona Supreme Court, are getting some opposition.
Appellate Judge Donn Kessler said there is one big reason he and his colleagues decide not to publish a ruling.
"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 automatically could be cited as precedent, in those kinds of cases.
Ruth McGregor, chief justice of the Arizona Supreme Court, also is cool to the idea.
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 in their rulings when they know they 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 when the appellate judges issue memo decisions as they overrule trial court rulings. He said their general lack of public availability means 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 those judges.
Hudson's alternative approach to make these memo decisions more public would not change the rule of what is or is not published. But it would let attorneys arguing a case cite those decisions if it helped their case, something now prohibited.
Hudson said it is wrong to let the judges who write a ruling decide for themselves when it can be cited. He said that effectively amounts to letting the appellate judges "hide" a decision by designating it a memorandum ruling.
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