I got off on a tangent doing research at the Law Library for something else.
I looked up West's annotated California Rule of Court 8.1105 which allows for decertifying appellate opinions for publication. Apparently this practice is controversial in the legal profession. There is a list of Law Review Articles criticizing the practice.
These opinions are actually unofficially published, it is more accurate to say they are uncitable. One author notes that Lawyers can cite almost anything in oral arguments and briefs, including Law Review articles, secondary materials and even non-legal materials but the Court rules specifically prohibit citing the opinions of the Court's own Judges. Lawyers can be disciplined for citing uncitable opinions. This raises a First Amendment concern among other things.
Another concern is that taxpayers are paying for the production of these opinions yet the public can't use them in a meaningful way.
I can see where the Supreme Court makes a landmark decision (all S.C. opinions are published officially) then a series of Appellate level decisions follow and attempt to apply the S.C. rule as described in the decision. The S.C. then decertifies almost all following Appellate decisions for publication which somewhat prevents analysis of how the S.C.'s rule first written is working. If the Appellate decisions were published I would think conflicts among the districts would come to light leading the S.C. to revisit the issue and maybe refine or re-explain its own rule. The current practice seems to be they simply decertify 99% of the Appellate decisions in some issues they don't want to bother with (The Federal circuits publish about 20% of their Opinions, I don't know what the percentage in the California Appellate Courts).
Unpublished decisions are widely available and they are useful to try to understand how the Courts apply precedent.
Kenneth Schmier is a California Lawyer who has a huge website on this issue:
http://www.nonpublication.com/
> Unpublished decisions are widely available and they are useful to try to understand how the Courts apply precedent.
Am I wrong in thinking that unpublished decisions are better characterized as cases where the court decided to arrive at some judgment that it thought to be inherently just, but without wanting any subsequent court to use their decision as a basis for deciding some other case on different facts? I've always thought that the secret was that many district courts try to do what they think is fair, and more often than not that is an odd result of facts and personalities specific to a particular case, detached from the supposedly impersonal principles of the law that seminars are based upon.
The common law develops out of fact situations. The idea is that similar sets of facts should produce similar results, stare decisis. If the decisions aren't published then they can't be used to ensure the system is consistent so that the public can know what the likely outcome of any dispute would be. Another issue is the Supreme Court is not necessarily resolving conflicts between districts.
> The common law develops out of fact situations. The idea is that similar sets of facts should produce similar results, stare decisis.
I think you're forgetting that particularly in boundary disputes there is that intangible element of the personalities and characters of the combatants. Equity touches on that in a way that would be hard to describe in the headnotes of a published decision.
There is always the problem that having one of the litigants an elderly widow presents. I also have in mind the case where one of the parties was a fellow from California who had purchased some land that included the actual lake frontage adjacent to about twenty lots and then proceeded one weekend morning to motivate several land owners to buy their lake frontage from him by driving a road grader through turf grasses they had planted on land of which he claimed ownership. The other party was a prominent businessman often seen in the society pages. Judges in Texas are elected.
There is no doubt that boundary cases often make good stories.
If only we could get Raymond Chandler to tell the story the opinions might be better.
there is a reason its called "gray area".
One needs to exeecise care and appreciate the fact that appeal outcomes may be based upon matters entirely irrelevant to the guidance we would like of as surveyors. A fatal error in proceedure on the part of a lower court could result in reversal on appeal. This reversal could occur without the appeal court ever addressing the merits of the core dispute.
there is a reason its called "gray area".
The key is care. Care is the key.
The Agreed Boundary doctrine, if you study it, is not very gray. I really think the California Courts have lobbed the ball over the net into our side of the sports metaphor. In decades past we would find the four block corners and measure to where it "should" be then the Agreed Boundary doctrine was the tool the courts would use to solve the difference. Now that has been mostly removed (except in very strictly limited circumstances) and it is up to the Surveyor to use the best evidence of the boundary and provide the reasoning necessary.
> I got off on a tangent doing research at the Law Library for something else.
The State of Washington posts the text of "unpublished" opinions to their website but these are not subsequently printed in the Reporter. They are often still interesting and illustrative reading. The controlling Statute is as follows:
RCW 2.06.040
Panels — Decisions, publication as opinions, when — Sessions — Rules.
..... In the determination of causes all decisions of the court shall be given in writing and the grounds of the decisions shall be stated. All decisions of the court having precedential value shall be published as opinions of the court. Each panel shall determine whether a decision of the court has sufficient precedential value to be published as an opinion of the court. Decisions determined not to have precedential value shall not be published. ...
Oregon has many cases each week listed as "Cases Affirmed Without Opinion". No text.
One line of reasoning against the Court determining which of its own Decisions should be citable is they can't know which Decisions might be helpful to future generations.
Our unpublished opinions are available for 60 days on the Courts website then they are taken down. They are available on LexisNexis and Westlaw. One of the arguments in the 1970s was that making them citable would limit their use to the wealthy and their Attorneys because they would be the only ones that could afford to purchase the extra reporters. That argument is obviously obsolete now because they are included in the on-line subscription services (or for free at the Library).
I agree, they are very useful and they useful have cites in them.
gray area for a reason
I would not presume to second guess the court. My previous comment had nothing in particular to do with any particular legal doctrine. There ARE IN FACT GRAY AREAS IN LIFE. Justice Cooley addressed this issue eons ago. The surveyors' desire, temperment, for precision and math solutions is not isolated just to latching onto finding a math solution to a boundary problem. This problem in temperment extends itself to the desire to find cookbook answers to all boundary surveying issues. "If only every surveyor would read all the same court cases I have read and glean the same understanding from these cases that I have, then all the problems will dissappear."
The fact is that surveyors ought to be advocates for the PUBLIC and not for a particular legal doctrine.
The fact is the "Agreed boundary Doctrine" is a legal remedy applied by courts. Courts do not apply the "Agreed boundary Doctrine" proactively, in advance of a dispute. The surveyor has no authority to usurp the rights of property owners.
gray area for a reason
gray area for a reason
> I would not presume to second guess the court.
Every time you set a monument in the ground with the intent of it marking the boundary as you've determined it, you're "second guessing the court." You're making the declaration that you've, 1) gathered a sufficient amount of best available evidence, 2) properly analyzed the evidence to determine the facts, and 3) properly applied the appropriate rule of law to reach your determination.
When gathering the evidence, we follow the rules of evidence which govern the relevancy and admissibility of the evidence. When we analyze the written record, we apply the rules of construction to resolve patent ambiguities to construe the intent of the parties. When we analyze a found monument we look to the evidence which corroborates its size, condition and relative position to determine the methods and procedures used to set it and, more importantly, who set it and under what authority it was set. When we apply the rules of law which govern where we are about to place our monument marking our determination of the boundary location, we apply boundary location principles which have been applied by surveyors for centuries.
If your determination fails to consider how the court would apply any of the above, you've failed your client, the public and the profession. You've failed to uphold the LAW.
> The fact is that surveyors ought to be advocates for the PUBLIC and not for a particular legal doctrine.
This is absolutely true. Surveyors are not "advocates." They must remain disinterested in the determination of the boundary. The boundary analysis and location should never vary if you were retained by the owner on the "other" side of the line.
Surveyors, however, cannot randomly pick and choose from the list of laws given to us for the determination of boundaries to decide which ones we will or will not follow. We must learn them all and apply them all without deference. As soon as we set ourselves "for" a particular set of laws and "against" another set, we have chosen to "advocate" for "a particular doctrine." When the boundary is determined improperly, based upon a particularly favored doctrine, the surveyor has failed the client, the public and the profession.
> The fact is the "Agreed boundary Doctrine" is a legal remedy applied by courts. Courts do not apply the "Agreed boundary Doctrine" proactively, in advance of a dispute. The surveyor has no authority to usurp the rights of property owners.
The "Agreed Boundary Doctrine" is simply an amalgamation of contract law. Surveyors (and laymen) use contract law all the time. There are written contracts, oral contracts and implied contracts. Granted, the SC of CA has bastardized the concept quite thoroughly making the determinations more difficult than the majority of jurisdictions, but nothing has changed with regard to the evidence expected to be gathered, analyzed and considered by the surveyor in order to determine a boundary location.
Much of the conversation lately has focused on the doctrines rather than focusing on the evidence needed to derive a boundary location. If the evidence is convoluted enough to cloud the final boundary determination, then the proper approach for any surveyor is to simply ensure that enough evidence has been gathered to lead to a successful remedy. In face of conflicting evidence, it's not the retracing surveyor's duty to fix the conflict. The retracing surveyor has no duty or authority to repair a problem. That's the point where the surveyor must recognize their limitations, STOP the survey, and not to proceed until the conflict has been adequately resolved.
JBS
gray area for a reason
I don't read about a particular legal doctrine to be an advocate for it. It can't be learned about if it isn't read about. I just chose that one to start because it seems to be the most (misunderstood?, feared?, hated?, disdained?) of all the legal doctrines.
I have learned some new things such as tax deeds clear all encumbrances but the courts don't view boundary line agreements as encumbrances. That is in an unpublished decision which should be published because it is using two very old cites.
On "second guessing judges" what happened to "question authority?" They are human too who put their pants on one leg at a time. The legal system affects everyone so we should be educated about whatever it is doing, not just Lawyers.
Don't worry, I am not going to open an Agreed Boundary Doctrine practice going door to door selling my Agreed Boundary service, "M'am, don't you remember that time your husband and former neighbor agreed on the fence?"
gray area for a reason
> I don't read about a particular legal doctrine to be an advocate for it. It can't be learned about if it isn't read about. I just chose that one to start because it seems to be the most (misunderstood?, feared?, hated?, disdained?) of all the legal doctrines.
Probably the best way to approach the subject is one of estimating probabilities. If you have multiple cases with some similar facts and different outcomes, you can estimate a probable outcome as an actuary would. Litigation, as you know, has a random generator associated with it that does not give a linear output. :>
Naturally, it varies from jurisdiction to jurisdiction, possibly even within a state at the district court level, so the analysis would be from sparse data sets at the fine scale.
gray area for a reason
Obviously there is some variation.
Boundary location is a question of fact and whether any particular doctrine applies is a question of fact. What this means is the Appellate Court reviews the trial court judgement to see if is supported by substantial evidence and they will accept inferences and deductions by the trial court although another inference may be supported by the facts. Witness credibility is also the province of the trial court. Most Appellate opinions affirm. Occasionally they reverse which means more discussion and reasoning.
gray area for a reason
A person takes on learning about something (almost like a hobby) and you would think the world is falling down when a few posts are made to try to understand some of the concepts.
We have a discussion forum but don't discuss difficult subjects because that might offend someone.
gray area for a reason
Have you run this approach by a judge? Maybe in expert testimony?
gray area for a reason
Now that is a novel concept - Star*Net for legal opinions!!!!
gray area for a reason
> A person takes on learning about something (almost like a hobby) and you would think the world is falling down when a few posts are made to try to understand some of the concepts.
>
> We have a discussion forum but don't discuss difficult subjects because that might offend someone.
Well I personally hope you continue to post on the subject. I thought there was some great discussion on the matters you have brought up so far. Just because there is not absolute agreement from everyone on the matter does not necessarily mean there has been offense taken. It means there are differing views - and talking (or even arguing) about it may help both sides of the discussion.
As far as studying legal matters being a hobby, I think it is actually pretty well something all surveyors should be looking at. How else does one know when and what advice is best to provide one's client?
Keep posting like Captain Smith! What is the worst that can happen?
