Unpublished opinions and Blakely

As many readers surely know, there is a long-standing, rich and robust debate among judges, litigants and academics about the use, status and appropriateness of unpublished opinions in the federal circuit courts. Here is a fairly recent law.com article about new developments in this debate, and here is a useful (though only partial) list of writings on the topic. I myself have had occasion to write a bit on this topic with Professor Jeffrey O. Cooper. See In Defense of Less Precedential Opinions, 60 Ohio State Law Journal 2025 (1999); see also Passive Virtues and Casual Vices in the Federal Courts of Appeals, 66 Brooklyn Law Review 685 (2001).

Yesterday’s noteworthy but unpublished decision from the First Circuit (discussed here), along with the series of other like rulings, have me thinking about the unpublished opinions debate through the lens of Blakely. In this debate, it is often noted that the “unpublished” label is a misnomer and perhaps insignificant because most if not all such opinions are available through the on-line services Lexis and Westlaw. But I am given pause in this context because it seems likely that those most personally interested in Blakely developments — namely, prisoners and their families — likely do not have ready access to these (costly) on-line services.

In addition, through coverage of the Blakely world, I have come to focus on the fact that state courts also have unpublished opinion debates (examples here and here and here) and that state courts will also issue consequential unpublished opinions.

For just the latest example of a consequential unpublished opinion, a California appellate court in People v. Morrison, 2004 WL 1889488 (Cal. App. Aug. 25, 2004), comes to the contestable conclusion that Blakely posed no problems on appeal because “the defendant’s high term sentence here is supported by facts found true by the jury,” even though a careful reading of the case suggests the jury only found facts which might have supported the requisite finding. In addition, for reasons a bit unclear, the court in Morrison also finds “no violation of Blakely on the imposition of the consecutive sentence.”

I will leave it to others to debate (perhaps in the comments) whether it may be useful or problematic that opaque Blakely decisions are officially “Nonpublished/Noncitable.”