July 2010 Feature Story: 'Unpublished' Opinions in Tennessee

I am writing to point out several inaccuracies in the July 2010 Tennessee Bar Journal Feature Story regarding 'unpublished' opinions in Tennessee ["'Unpublished Opinons in Tennessee: What Are They and What Should They be Worth?" by Taylor C. Berger].

The Tennessee Court of Appeals and the Tennessee Court of Criminal Appeals do not have similar treatment or procedural rules relative to publication.   When Rule 11 discretionary review is not sought from the Tennessee Supreme Court, an opinion of the Court of Appeals is published if, in response to the author's publication request, a majority of the court does not submit a written objection within 30 days. By contrast, in response to the author's publication request, the Court of Criminal Appeals requires a majority submission of approvals before an opinion is published. Rule 19(1)(c), Rules of the Court of Criminal Appeals. Also contrary to the Court of Appeals' practice, the Court of Criminal Appeals still requires a majority submission of approval before publication when the Tennessee Supreme Court has denied permission to appeal.   Moreover, the time period for the members of the Court of Criminal Appeals to submit approvals is 20 days, not 30 days as allowed by the Court of Appeals.   Rule 19(2)(a), Rules of the Court of Criminal Appeals.

Because at least seven of the 12 members of the Court of Criminal Appeals must affirmatively vote in favor of publication, the prospect of an "unpublished" three-member opinion trumping existing published precedent is greatly diminished " in apparent contrast to the problem described in the Feature Story concerning Glanton v. Lord and Estate of Luck.

Regarding the mechanics of how and where an opinion is sent for publication, it is my understanding, as it applies to the Court of Criminal Appeals, that when an opinion is approved for publication, the Presiding Judge sends notice to West Publishing and to the Tennessee Attorney General and Reporter of the need to publish an opinion. When the opinion is forwarded for publication, Rule 19(2)(c) provides that the Presiding Judge shall indicate on the face of the opinion the date that it was filed, whether permission to appeal was sought, and if sought, the date of denial.

I express my personal thanks to the author of the article and the Tennessee Bar Association for bringing this important subject to the attention of the membership.

— Ann C. Short, Knoxville

Author's response
I thank Ms. Short for noting how Court of Criminal Appeals procedures differ somewhat from Court of Appeals procedures. That the Court of Criminal Appeals rules are less favorable for the publication of opinions, however, provides no remedy for the problems created by the practice of according less precedential weight to unpublished opinions than to those that happen to be published.

— Taylor C. Berger, Memphis