VISIBLE JUSTICE: PARTICIPATION, RESPONSIVENESS AND DEGREES OF SEPARATION
Judicial opinion writing has little to no governance yet the choices appellate judges or panels make as to both the form and substance of opinions have important societal consequences. Judicial opinions not only facilitate the rule of law but serve an important legitimizing and accountability function. The judiciary’s legitimacy depends upon “legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 865 (1992). Indeed, the obligation and function to write an opinion explaining the outcome of the case and basis of the decision is a profound and imperative restraint on judicial discretion. Judicial opinions are intended, in turn, to facilitate both public and judicial oversight of judges as well as serve as a valuable check on the decision-making process. See Chad Oldfather, Writing, Cognition, And The Nature of The Judicial Function, Georgetown L. J. 1284 (2008) (noting concept that the act of writing disciplines the process of decision).
In order for judicial opinions to serve their fundamental rule of law, legitimizing and constraint functions, it is imperative that there be advocate participation and direct judicial response to that participation. As noted by one commentator:
Appellate justice should be a model for the government’s dealing with citizens. Appellate courts are the most
dignified and receptive authorities to which individuals can turn to express their legal dissatisfactions in a pointed
way, with assurance of a direct response. If these courts did not deal directly with litigants, we cannot expect
agencies or bureaucracies of lesser sensitivity to legal rights to do so. It is therefore important that justice on
appeal be visible to all.
Paul D. Carrington, Justice on Appeal in Criminal Cases: A Twentieth-Century Perspective, 93 Marq. L. Rev. 459, 461 (2009). “Judicial opinions, on this view, are important primarily because they reassure the parties that their participation was meaningful.” Chad Oldfather, Remedying Judicial Inactivism: Opinions As Informational Regulation, 58 Fla. L. Rev. 743 (2006)
A review of recently issued decisions by the Appeals Court reveals the not so infrequent use and reference to an opinion writing technique having some long-standing roots in Massachusetts appellate practice and parlance. The reference is couched in terms of either arguments or contentions and, as worded, is unique to Massachusetts appellate practice. It provides:
With respect to other arguments presented by the parties not addressed herein, they have not been overlooked.
We find nothing in them that requires discussion.
See Marshall v. Marshall, Appeals Court (unpublished Oct. 23, 2018); Commonwealth v. Vagas, 94 Mass. App. Ct. 1105 (Oct. 12, 2018); Commonwealth v. Billups, 94 Mass. App. Ct. 1102 (Oct. 10, 2018); Commonwealth v. Broderick, 94 Mass. App. Ct. 1104 (Oct. 5, 2018); Hein v. Hein, 94 Mass. App. Ct. 1101 (Sept. 10, 2018).
The phrase and reference dates back to at least 1944. See Commonwealth v. Welansky, 316 Mass. 383 (1944). It is usually placed in the back-end of opinions and utilized in both criminal and civil cases. While brief and unassuming, upon inspection, it can raise the question of whether there has been a dilution of the legitimizing and accountability function of the opinion.
On its face, the technique appears to serve the purpose of giving notice to the parties that all appellate arguments were reviewed with the added caveat that if not mentioned or discussed, they were unworthy of any further examination. As such, it appears to seek to put at ease any angst or doubt that the parties’ respective arguments were not known or understood. As opposed to no mention of the undiscussed arguments or contentions at all, the reference serves perhaps some benefit. It can, in turn, be argued that the court has served its adjudicatory duty as it has expressly acknowledged the “other arguments” or contentions finding any discussion unnecessary to the resolution. Indeed, to require an appellate court to address all contentions in all circumstances particularly where poorly or inadequately presented would perhaps extend the participation principle and adjudicative duty too far. Nonetheless, there remains concern.
Such treatment appears somewhat haughty and can be argued to subvert the fundamental underpinnings to the intended function behind judicial opinion writing. It is dismissive with no meaningful or direct response to the substance of the contentions. Acknowledging that the unaddressed contentions have not been overlooked adds little as it is the very function of the court to review and address those contentions. Further, to summarily dismiss the arguments or contentions as not meriting any mention or reference whatsoever coupled with no explanation or basis for such summary dismissal only further undercuts the legitimizing purpose. See generally, Patricia Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1394 (1995) (judicial opinions “reinforce our oft-challenged and arguable shaky authority to tell others — including our duly elected political leaders-what to do”). When such references are included in a summary decision under Rule 1:28, for instance, which already proclaims that it “may not fully address the facts of the case or the panel’s decisional rationale,” there is a risk of a palpable loss in the integrity of the adjudication.
Individual participation through reasoned argument and contentions in an adversarial format is what makes it possible for courts to develop sound principles and render principled decisions. The not overlooked but not meriting discussion approach can be a direct affront to party participation and judicial responsiveness. Both advocate participation and direct judicial response is critical as “legitimacy is tied to the instrumental value of participation” and that “courts resolving cases without being sufficiently responsive to the parties are not resolving the parties’ dispute, but instead some more or less rough facsimile of it.” Chad M. Oldfather, Error Correction, 85 Ind. L. J. 49, 82 (2010). It goes without saying that accountability and acceptance flows from judicial opinions which directly address the contentions and positions taken allowing litigants to understand that their voices have been heard and positions given meaningful consideration. Meaningful judicial attentiveness to the parties’ arguments serves the instrumental purpose in legitimizing judicial action.
To be sure, the not overlooked but not requiring discussion reference can likely be defended as more of a judicial housekeeping tool otherwise harmless to the integrity and substance of the decision. It could be argued that the court does no disservice to the adjudicatory duty by at once acknowledging but then summarily dismissing presented contentions when it has otherwise provided articulation of its decision. There is much to be said as to the notion that while “[c]ourts must honor party participation, [they] need not be constrained by its limits.” Oldfather, Remedying Judicial Inactivism, supra.
Nonetheless, it may not be so benign but a further drifting space between party presentation and judicial response. We are already in the age of diminished personal engagement due to work loads, frequent lack of oral argument, the reliance on staff attorneys, clerks and summaries, decision time limits and the heavy use of unpublished and summary opinions, among others. All serve to limit or constrain the ability to become deeply engaged with the cases and inevitably less able to keep track of and be responsive to the parties’ claims. In the end, whenever there is any measurable degree of separation between a party’s articulated contentions and the judicial response to those contentions, serious pause is merited. Indeed, the greater the judicial unresponsiveness to the contentions made, the lesser the democratic legitimacy of the decision.
