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Appeals process challenged

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

Hild won $704,633 in a lawsuit, only to lose the award in an appellate court. Now, in a potentially groundbreaking federal lawsuit, the former resident of Big Creek in Fresno County 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who now lives in Visalia, is suing the California Supreme Court to reverse its practice of largely ignoring unpublished court opinions.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.

The appeals court that reversed Hild's legal victory did not publish its opinion.

Unpublished opinions are common. States and the federal government, though, are starting to diverge in how they handle them.

California Courts of Appeal issued 11,852 opinions during the 2004-2005 fiscal year. Of these, 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About one-third of federal appellate court decisions reviewed in 2002 came in unpublished opinions, meaning they are not collected in the bound volumes that make up the formal work of the court.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 the law. The judges who arrive at an opinion decide whether to publish it based on those criteria. Unpublished opinions can't be cited as precedent.

The California Supreme Court reviews few unpublished opin- ions. 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 this month in U.S. District Court in San Francisco, Chase seeks to end the California Supreme Court's "noncitation rule" for unpublished opinions. This would mean that lawyers could use unpublished opinions to buttress their legal arguments in California courts.

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

STATES DIFFER IN APPROACH

Other state courts handle unpublished opinions differently. 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 playing paintball in the Sierra Nevada.

He and his friends came across Katherine Magdaleno, a friend of the Hild family. 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 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 2nd District Court of Appeal in Los Angeles declared Southern California Edison couldn't be held liable.

Because the court's opinion was unpublished; further appeals face long odds. Hild's lawsuit claims appellate judges violated his constitutional due- process guarantees by leaving the June opinion unpublished and essentially immune from further appeals.

The U.S. Supreme Court began allowing unpublished cases to be cited in federal courts in January. The change required several years of intensive de- bate, 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 productiv-ity," Vaino Spencer, a judge on California's 2nd District Court of Appeal, warned a state Assembly member earlier this year.

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Bee Washington Bureau reporter Michael Doyle can be reached at mdoyle@mcclatchydc.com or 202-383-0006.

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