Report · 8:41am
Good morning Scott. So is it correct to say that attorneys can not cite unpublished opinions? I read your post to facebook this morning and think you might consider tayloring your comments to the untrained eye. Most people who lack a law degree are not really going to understand what you are saying….dumb it down a bit. I think the purpose of your post/blogs are to educate, raise awarness and build influence so in that effort I think simplifying you message is prudent. You offer great insights and ?i dont want them to go over peoples heads. 🙂
Report · 8:43am
Yes, it is true that attorneys get sanctioned for citing unpublished decisions. Although federal courts do so with impugnity.
I agree I need to explain better. But I have been talking about this topic for a long time.
Here again are the basics of what I am saying.
The legislature passes a law when it feels the need to do so. The decision to pass a statute is purely a matter of legislative discretion.
On the other hand, courts have a duty to decide the cases parties bring before them. Judicial decisions establish common law.
By determining that most of its decisions are not a part of the common law, the Court of Appeals is acting as if courts have absolute discretion to declare what the common law is. They don’t.
Corts have a constitutional duty under the seperation of powers to declare how the law applies to the facts of specific cases.
By refusing to state their decisions in past and present foreclosure cases the Court of Appeals has done a tremendous disservice to the state of Washington and its citizens.
The common law is by its nature an evolutionary process. Court of Appeals’ practices ignore this when they act is if they have discretion to declare the law only when the judges want to do so.
This makes the judiciay less transparent than it should be and invites corruption of the centuries old process of how the common law is made.
I have discussed this issue in previous blogs. See, for example, my blog of August 13, 2012: Ask legislative candidates to restore the common law.
Report · 8:59am
I will take a look. But what can we do to change this….
And is is correct to say that attorneys can not cite unpublished decisions? So in a way if the court does not publish it is not “commiting” to that decision and sort of kicking the can down the road?
Report · 9:02am
Understand the problem. Explain it to others. Inform candidates about the problem. Then vote for candidates who understand the problem and commit to fixing the problem.
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