Lawsuit pushes appeals process

WASHINGTON -- An errant paintball partially blinded Joshua Hild. It also opened his eyes to how courts work.

Hild won $704,633 in a civil lawsuit, only to lose the award in an appellate court.

Now, in a potentially groundbreaking federal lawsuit, the former resident of tiny Big Creek is challenging how judicial opinions are used while he gets a crash course in the law.

"I've learned that it's not always just," Hild said Tuesday.

The 19-year-old -- who now lives in Visalia and works in an Applebee's there -- is suing the California Supreme Court to reverse its practice of largely ignoring unpublished court opinions. In California, these opinions disposing of routine cases can't be cited as precedent. They also become difficult to appeal.

They're very common. States and the federal government, though, are starting to diverge in how they handle unpublished opinions.

California courts of appeal issued 11,852 opinions during the 2004-2005 fiscal year. Of these, only 1,047 were published.

About one-third of federal appellate-court decisions reviewed in 2002 came in unpublished opinions, meaning they are not collected in the bound volumes that make up the formal work of the court. They often are short, frequently with minimal recitation of facts or law.

Since the mid-1960s, most states have limited which opinions are published and how they are used. For years, California's presumption was that most opinions wouldn't be published. Late last year, it loosened its publishing guidelines.

But it still specifies that publishing should be limited to opinions that offer "interpretation, clarification, construction or criticism" of current law. The judges who arrive at an opinion decide whether to publish it based on those criteria. And unpublished opinions still can't be cited as precedent.

The California Supreme Court reviews few unpublished opinions. Such opinions stem from cases that may be considered less significant, and because they are not published, it is harder to show how they might conflict with other opinions -- a factor in the high court's decision to hear a case.

"We're brought up in this country that you have a right to trial and then, in case you have a bad opinion, you have a right to have it heard by a higher court," said Brian Chase, Hild's attorney. "People like Josh should not be left subject to a clearly flawed opinion."

In a lawsuit filed on Hild's behalf late last week in U.S. District Court in San Francisco, Chase seeks to end the California Supreme Court's "non-citation rule" for unpublished opinions. This would mean that lawyers could use unpublished opinions to buttress their legal arguments in California courts.

Now the California Supreme Court itself must respond to the lawsuit in federal court.

Other state courts handle unpublished opinions in different ways. Texas, for instance, allows unpublished opinions to be cited as precedent, while Alaska and Kansas allow them to be published for their persuasive value. It's a controversial idea, with some influential judges warning that it could spawn poor reasoning and add to their crushing workloads.

Hild didn't start out as a legal crusader. In March 2003, he was simply a boy playing paintball in the Sierra Nevada Mountains.

He and his friends came across Katherine Magdaleno, a friend of the Hild family, as she was on the job as a water treatment manager for Southern California Edison. Magdaleno asked to see one of the guns and said she was going to play a trick on Hild.

Accounts differ about what happened next, but somehow she accidentally fired one of the paintball guns at point-blank range, according to Hild's lawsuit, and the paintball ripped his retina. He's now legally and permanently blind in his right eye.

In May 2005, a jury found Southern California Edison liable for Magdaleno's actions and awarded Hild $704,633 plus $4,663 for medical expenses. Magdaleno, who was distraught over the accident, wasn't sued.

But in June, the Los Angeles-based 2nd Appellate District Court declared that Southern California Edison couldn't be held liable.

"The evidence indisputably shows that the employee was participating in a prank or joke with children near her work site," the appellate judges concluded. "The prank had nothing to do with her job duties."

Because the appellate court's opinion was unpublished, further appeals face long odds. Hild's lawsuit claims that appellate judges violated his constitutional due-process guarantees by leaving the June opinion unpublished and thereby essentially immune from further appeals.

"It's an egregious miscarriage of justice," said Hild's father, Bob Hild, a communications technician with Southern California Edison. "We had our day in court, but then the appellate court took away our voice."

The U.S. Supreme Court began allowing unpublished cases to be cited in federal courts in January. The change required several years of intensive debate, which continues on the state level.

"Citations to the thousands of unpublished opinions filed each year would in the vast majority of cases not be fruitful and would bog down our productivity," Vaino Spencer, a judge on California's 2nd Appellate District Court, warned a state Assembly member earlier this year.

Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals, which handles appeals in California, Idaho, Washington and other Western states, called the use of unpublished opinions "folly," while California Supreme Court Chief Judge Ron George similarly opposes the idea.

"It goes without saying that few, if any, appellate courts have the resources to write precedential opinions in every case that comes before them," Kozinski wrote in a 2001 case.