Today, the Iowa Supreme Court announced that it has amended a decision that it filed two weeks ago. The edits are interesting, but it’s the announcement that’s notable.
Last weekend, New York Times reporter Adam Liptak wrote about the U.S. Supreme Court’s practice of quietly editing its opinions after they’ve been released. That the Court makes minor corrections–typos and such–is no secret, at least among lawyers. But as Liptak noted, the justices make substantive changes as well. And they don’t tell us. From Liptak’s article:
The only way the public can identify most changes is by painstaking comparison of early versions of decisions to ones published years later.
But there have been recent exceptions. Last month, Justice Scalia made a misstep in a dissent in a case involving the E.P.A. Under the heading “Plus Ça Change: E.P.A.’s Continuing Quest for Cost-Benefit Authority,” he criticized the agency for seeking such authority in a 2001 case. But he got its position backward. Worse, he was the author of the majority opinion in the 2001 decision.
Law professors pointed out the mistake, and Justice Scalia quickly altered his opinion, revising the text and substituting a bland heading: “Our Precedent.”
Even more recently, Justice Elena Kagan this month corrected her dissent in Town of Greece v. Galloway, modifying a categorical assertion about the location of the first community of American Jews.
The court did not draw attention to the changes, but they did not go unnoticed. Other revisions have. A sentence in a 2003 concurrence from Justice O’Connor in a gay rights decision, Lawrence v. Texas, has been deleted from the official record. She had said Justice Scalia “apparently agrees” that a Texas law making gay sex a crime could not be reconciled with the court’s equal protection principles.
Lower court judges debated the statement, and law professors used it in teaching the case. The statement continues to appear in Internet archives like Findlaw and Cornell Law School’s Legal Information Institute.
But it has vanished from the official version published in 2006 and from the one available on Lexis, a legal database.
As Liptak notes, the Supreme Court does warn us that this can happen. When the opinions are published on the Court’s website, a small-print notice says that “this opinion is subject to formal revision before publication.” But warned or not, the problem–especially in the area of legal blogs–is that the Court’s decisions are painstakingly analyzed by scholars and lawyers within hours of release. And without notice that a potentially significant change has been made, those articles and blog posts won’t be updated.
The Iowa Supreme Court seems to follow the same general procedure–or at least it did. When the Iowa Supreme Court posts decisions to its website (usually at 8:30 on Friday morning), it warns readers that “all slip opinions are subject to modification or correction by the court” and are “not to be considered the final decisions of the court.” No decision is “official,” the website tell us, until it’s “published in the North Western Reporter published by West Group.”
A quick scan of Iowa Courts Online (the Judicial Branch’s online docket) shows that the justices routinely make corrections to their opinions, often months after they’ve posted to the court’s website. The docket doesn’t tell us what the justices changed; it just notes which page the change is on. And that’s probably because the court is just correcting a typo or incorrect citation here and there. But because the court doesn’t tell us what the edits are, it’s possible that some of those edits are substantive (and possibly significant).
If that was the Iowa Supreme Court’s practice–to make substantive changes without telling us–it’s not anymore. Two weeks ago, the court issued a ruling in Bertrand v. Mullin, an interesting (and rare) political defamation case. During the 2010 elections, the Iowa Democratic Party and state senate candidate Rick Mullin ran an ad against Mullin’s opponent, Rick Bertrand, which implied that Bertrand marketed a dangerous sleep drug to children. Bertrand had been a sales agent for the drug manufacturer, but he hadn’t sold that particular drug. A jury returned a verdict in Bertrand’s favor, but the Iowa Supreme Court reversed. The justices concluded that Bertrand hadn’t met his burden under the heightened “actual malice” defamation standard for public figures under New York Times v. Sullivan.
Within twelve hours of the opinion being released, First Amendment guru and ULCA Law professor Eugene Volokh noticed an inconsistency in the Iowa Supreme Court’s opinion, and he wrote about it on his blog, which is now hosted by the Washington Post. In a footnote on pages 16 and 17, the court said that it was deciding the case based “solely on the actual malice ground” and that it was “express[ing] no opinion regarding whether Mullin or any staff of the Iowa Democratic Party subjectively endorsed or intended the implication that Bertrand personally sold or marketed rozerem.”
But in body of the opinion, and starting on the very next page, the court wrote the following:
Additionally, defamation by implication arises, not from what is stated but, as in this case, from what can be implied when a statement juxtaposes a series of acts that imply a defamatory connection them. Yet, when defamation is implied, the evidence must affirmatively show the author subjectively endorsed or intended the inference. Here, after Bertrand asserted at the public forum that a false implication had been made–that he personally sold the dangerous drug–Mullin and the Iowa Democratic Party staff responded that they did not intend that implication. Thus, there was no direct evidence that Mullin and the Iowa Democratic Party endorsed the defamatory implication after it was revealed.
Later in the opinion, on page 25, the court wrote that “no evidence supported a conclusion that Mullin or the Iowa Democratic Party subjectively intended the defamatory implication as opposed to the legitimate implication.”
So the court said, in the footnote on pages 16 and 17, that it wasn’t considering the endorsement issue–either legally or factually. And yet later it concluded that endorsement was a legal requirement and that Bertrand didn’t prove it.
Volokh posited that one possible explanation for the inconsistency “is that the footnote was added late in the writing, because one of the judges didn’t want the court to decide the legal question, and perhaps the plan was to revise the text to make clear that the subjective intent requirement is merely being assumed — given the procedural history of the case.”
Of course, we likely won’t ever know why the seemingly inconsistent passages got into the opinion, but it now seems that it was unintentional. Today, the court announced, in an order posted to its website, that it was deleting the inconsistent statements on pages 18-19 and 25. The footnote on pages 16-17 remains.
The court also added a long footnote to the opinion, which addresses another issue.
So Bertrand v. Mullin is different today than it was yesterday. And, thanks to the court’s published order, we all know how different.