Fifth Circuit Affirmance Without Opinion News

	Fifth Circuit Starts Posting Unpublished Opinions on Web Page! - 7/3/03
	Judicial Conference Committee Rejects Required Written Opinions - 5/15/03
	ABA Backs Required Appellate Written Opinions - 3/24/03
	National Appellate Rule Change Requested of Judicial Conference - 3/4/03
	Openness in Justice Act Introduced Requiring Written Opinions - 2//11/03
	Fifth Circuit Local Rule Change Requested - 12/18/02
	Open Warfare Within Fifth Circuit Over Affirmance Without Opinion - 11/15/02

Fifth Circuit Starts Posting Unpublished Opinions on Web Page! - 7/3/03 - The Fifth Circuit announced that it will start posting its unpublished opinions on its web page from 7/7/03 forward and start gradually posting unpublished opinions before that date on its web page. See the announcement at: www.ca5.uscourts.gov/circuitnewslinks/unpubnotice.pdf

Judicial Conference Committee Rejects Required Written Opinions - 5/15/03 - The Advisory Committee for Appellate Rules of the Judicial Conference met on May 15, 2003 in Washington, D.C. They considered the Weeks proposal to require written reasoning for all dispositions and rejected it. Click here to see a summary of the conversation on that topic at the meeting, chaired by Samuel Alito. For the transcript of another Judicial Conference rejection of reasoning, click here.

ABA Backs Required Appellate Written Opinions - 3/24/03 - The American Bar Association has sent a letter expressing support for Professor Joseph Weeks' proposed addition to the federal rules of appellate procedure requiring written opinions for each disposition. The ABA had already adopted a resolution urging courts of appeals to provide reasoned explanations for their decisions.

Here is the letter sent by the ABA.

Here is the February 2000 ABA report and resolution entitled:

MINIMUM STANDARDS FOR APPELLATE COURT OPINIONS

National Appellate Rule Change Requested of Judicial Conference - 3/4/03 - Law Professor Joseph R. Weeks sent a letter to the Judicial Conference requesting that the federal rules of appellate procedure be changed to require written opinions for all appellate dispositions. He requested that a new rule be added as follows:

Rule 49. Written opinions

The court must issue a written opinion explaining the basis for each disposition. The opinion should expound on the law as applied to the facts of the case and set out the basis for the disposition.

Professor Week's nine page letter lays out in detail his reasons for the proposal.

The proposal will now enter the Judiciary's process for rules modification. The first place the proposal will be considered will be in the Judicial Conference's Advisory Committee on Appellate Rules. Its next meeting is in Washington, D.C. on May 15, 2003.

Bill Introduced Requiring Written Opinions in Certain Cases - 2/11/03 - Congressman Ron Paul (R-TX) introduced HR 700, named the Openness in the Justice Act, which seeks to modify the federal Rules of Appellate Procedure to require "a written opinion that expounds on the law as applied to the facts of the case, and explains the judicial reasons upon which the judgment is based" for: 1) civil actions removed from state court, 2) civil actions wherein jurisdiction is founded solely upon diversity of citizenship in which the matter in controversy exceeds $100,000, and 3) any appeal regarding the use of a court's inherent powers. The bill has been assigned to the House Judiciary Committee. Status of the bill can be tracked at the THOMAS Congressional site. When there, enter hr700 into Bill Number field and click the Search button.

Fifth Circuit Local Rule Change Requested - 12/18/02 - The following change to the Fifth Circuit Rule of Appellate Procedure was requested. The underlined text is the proposed addition:RULE 47 OTHER FIFTH CIRCUIT RULES

47.6 Affirmance Without Opinion.

47.6.1 The judgment or order may be affirmed or enforced without opinion when the court determines that an opinion would have no precedential value and that any one or more of the following circumstances exists and is dispositive of a matter submitted for decision: (1) that a judgment of the district court is based on findings of fact that are not clearly erroneous; (2) that the evidence in support of a jury verdict is not insufficient; (3) that the order of an administrative agency is supported by substantial evidence on the record as a whole; (4) in the case of a summary judgment, that no genuine issue of material fact has been properly raised by the appellant; and (5) no reversible error of law appears. In such case, the court may, in its discretion, enter either of the following orders: "AFFIRMED. See 5th Cir. R. 47.6." or "ENFORCED. See 5th Cir. R. 47.6."

47.6.2 Regardless of any rationale stated in 47.6.1, opinions must be written:

(1) for any decision made by the court when sitting en banc;

(2) in diversity cases, based on removal jurisdiction, when jurisdiction is in dispute; and

(3) for any appeal regarding the use of a court's inherent powers.

This rule must be applied to any appeals pending on the date of its adoption or any proceedings arising from such cases.

47.6.3 On direct appeal, all parties have the right to request a written opinion from the appellate court, stating briefly why an explanation of a ruling will serve the cause of justice.

Here is the proposal in Adobe Acrobat PDF format:

Requested Fifth Circuit Appellate Rule Change on Affirmance Without Opinion

Click here for the cover letter sent to the Fifth Circuit Clerk for this request.

Open Warfare Within Fifth Circuit Over Affirmance Without Opinion - 11/15/02 - In an evenly split en banc decision in a case concerning how far federal criminal law can encroach on state criminal law, the group in favor of federal power affirmed without opinion a district court decision to apply federal law to a string of local robberies. One of the dissents, authored by Judge Edith Jones and joined by Judges Jolly, Smith, DeMoss, and Clement had scathing words about the summary affirmance. The case is United States of America v. Mcfarland, 00-10569. The dissent starts on page 82.

Here are some of the more interesting quotes from the Jones dissent:

"It is our view that our court owes the public a candid explanation of our respective positions"

"Federal appellate courts' twin duties are to decide appeals and to articulate the law. Writing reasoned opinions, especially in important cases, is critical to the responsible performance of these duties."

Quoting Paul D. Carrington, Daniel J. Meador and Maurice Rosenburg, Justice on Appeal 10 (West 1976): "When reasons are announced and can be weighed, the public can have assurance that the correcting process is working. Announcing reasons can also provide public understanding of how the numerous decisions of the system are integrated. In a busy court, the reasons are an essential demonstration that the court did in fact fix its mind on the case at hand. An unreasoned decision has very little claim to acceptance by the defeated party, and is difficult or impossible to accept as an act reflecting systematic application of legal principles. Moreover, the necessity of stating reasons not infrequently changes the results by forcing the judges to come to grips with nettlesome facts or issues which their normal instincts would otherwise cause them to avoid." (emphasis added by Fifth Circuit).

"The benefits of issuing reasoned opinions - fostering public understanding of the law, accountability and transparancy, and imposing self-discipline on the judges - are not limited to majority opinions."

"In this court ... , silence is not our custom."

"This court is an institution defined by the reasoned exercise of power. It [silence] signals disregard for the public - the federal prosecutors and defense attorneys - who remain unenlightened over how to avert, or precipitate, serious discussion of the limits now imposed by the commerce clause on federalization of local crime. Silence exhibits a unique unconcern for appellant McFarland ... [who was] entitled to know how the power of the federal government consitutionally bore down on [him]."

Quoting from Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996) (en banc): "[W]e believe that there should be an option to issue [opinions] . This is especially so because the views of this court of intermediate appeal might be useful to the Supreme Court in the event of an application for certiorari."

Last saved on: 11/01/2005

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