Those who challenge the 9th Circuit’s no-citation rule as constitutionally impossible will find Hart v. Massanari (1) undaunting. Judge Alex Kozinski has not attempted to defend no-citation rules from constitutional challenge. Rather he has directed his argumentative ability at Judge Richard Arnold’s opinion in Anastasoff v. IRS. Arnold found that Article III requires all appellate decisions be precedent. Kozinski’s opinion says courts themselves get to decide what, if any, of their own actions will be precedent, the rest being designated illegal to mention again. His opinion reflects an erroneous ideological paradigm focused on "binding precedent", relatively recently imposed upon the 9th circuit as policy. Once that error is revealed and corrected, no citation rules, and to a lesser extent nonpublication rules, can be demonstrated to be anathema to the judicial standard of America.
In Kozinski’s view the appellate judiciary has two separate roles. To him the paramount duties of a court of appeal are: "producing reasoned published opinions and keeping the law of the circuit consistent through the en banc process." Determination of the outcome of cases by application of known rules to determined facts in an articuable manner does not make the list. That can be dispensed with so long as three judges "agree on the outcome." To Kozinski, a preferred outcome is not just a hypothesis to be justified by articuable law and legal reasoning overcoming argument to the contrary. To actually articulate a rational decision would cut into time for those paramount duties. Apparently, "Show your work" was not a requirement in his education, but that process remains the best way of finding error in all manner of logical endeavors, even as it draws consistent criticism as "a waste of time" to those certain a result is "obvious"(2) . Building inspectors adamantly require structural engineers to show their calculations. Would Kozinski dismiss such a requirement? Apparently so because Kozinski thinks no-citation rules are justified to save time for those "paramount duties" despite the risk of error.
Kozinski has rejected stare decisis before. In Sorchini v. City of Covina he wrote " persuading us to rule in [a party’s] favor because an earlier panel of our court had ruled the same way"... "is prohibited by Ninth Circuit Rule 36-3"(3) . What is it about this wise doctrine that Kozinski rails against it so? Is it that judicial cognizance of consistent 9th Circuit law would have to face the reality of inconsistency if all opinions of the courts are citeable?
The 9th Circuit insists upon consistency, a good thing, but only while in public view, a bad thing. The first panel that settles a novel question - and itself decides to publish the case - sets the rule for the 9th as "binding authority" in perpetuity. That is why Kozinski grabbed a chance to rule on this issue before other judges could rule the other way. Now his view stands until the 9th Circuit agrees to consider the matter in en banc review, as it does after any panel publishes any case. Because until en banc review, no petite panel may contradict a published authority, at least not in published opinions. Pan
"Because", says Kozinski, "they are so cumbersome, en banc procedures are seldom used merely to correct the errors of individual panels". We feel compelled to ask: Who is correcting error? Even if the human indignity of dishing error to litigants shunted to the unpublished track was not so intolerably painful, mighty scholars of the law like Kozinski might want to know how the published law is to be clarified in light of the court’s institutionalized reluctance to respond to reasoned criticism.
Is it wrong for a panel to ignore an erroneous published opinion if law and justice so require? Should they impose known error upon litigants? According to Kozinski, "Appellate courts often tolerate errors in their case law because of the rigors of the en banc process make it impossible to correct all errors." Does this justify departing from "binding precedent" in unpublished decisions? If so, what law does a citizen follow? In such circumstances no one can find safe harbor.
Kozinski has said that no one can show inconsistencies exist between the unpublished cases and published or other unpublished cases (4) . To do so is made impracticable by the Court’s General Order 4.3.a. prohibiting appellate judges from discussing facts in unpublished cases. Nevertheless, the United States Department of Justice, the most frequent litigant in the 9th Circuit, has expressly complained about its conflicts, and suggests unpublished decisions are a cause(5) .
Kozinski admits that the judiciary has changed its operational procedures since the founding of the country. According to him the publication of an opinion now creates "binding precedent" which legislates in a manner superior even to a statute enacted by Congress and signed into law by the President because it cannot be altered or criticized by any judicial body other than the Supreme Court or an en banc panel even if unconstitutional. Judicial "binding precedent" in the way the 9th circuit uses the term is anathema to common law, its salutary processes of elucidation, learning and correction, and the great stability it achieves by inertia of a great equilibrium and the diffusion of power.
It is the purpose of this article to demonstrate that not only is "binding authority" not a stabilizing force in the law, it is wildly destabilizing. Even Judge Arnold was careful to express that Anastasoff created no such monster. Nor do we, the Schmiers, who have fought long and hard to return all appellate opinions to the status of precedent, intend such a result. Rather we, and Judge Arnold, intend only that the doctrine of stare decisis be understood and followed to the end that all judges use the full measure of God given judgment given them to resolve cases according to the dictates of equal justice under law. We readily grant full range of judgment to each panel understanding the power it vests in them for good or evil, trusting in the character honored by the President and Senate, and asking only that each decision thoughtfully reflect a thorough consideration of facts determined by the finder of fact, the arguments made by the litigants, and the known extent of legal thinking brought to their attention or known by them. In short, judges are always free to choose to follow, distinguish or overrule- but not to ignore- relevant dictates. Kozinski would seem to be on board here for he says, "We would consider it bad form to ignore contrary authority by failing to acknowledge its existence…So long as the earlier authority is acknowledged and considered, courts are deemed to have complied with their common law responsibilities". But to Kozinski these are empty words because despite his saying this, he acts to sustain the no citation rule.
Kozinski does not explain why freedom of speech does not attach to the citation of statements of law contained in unpublished opinions. For him, and despite Legal Services v. Valasquez, the guarantee that open exchange of ideas in the search for truth will occur does not reach the courtroom. Kozinski would have the judiciary announce dogma never to be questioned by inconsistencies with previous decisions. He says, "Binding authority within this regime cannot be considered and cast aside; it is not merely evidence of what the law is. Rather caselaw on point is the law." He footnotes that California, by virtue of Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (6) gives support for this grab of legislative power contravening separation of powers doctrine. But the American judiciary is not a "regime". In the American judicial structure control is achieved by logical persuasion, not position. The impact any one opinion can have depends upon its logic, not who made it.
Auto Equity Sales is no support for no citation rules because it was decided well before the advent of no-citation rules. Moreover, that case refers to the 100% of appellate decisions that were then precedent rather than the subset of 6% of current decisions that are all that are now published and citable in California. Besides, others use Auto Equity Sales to attack the same rules Kozinski supports. As Presiding Judge Cole put it in County of Los Angeles v. Wilshire Insurance Co. "[A] fair reading of rule 977 of the California Rules of Court surely allows citation to the unpublished opinion. To hold otherwise leaves us in the Orwellian situation where the Court of Appeal opinion binds us, under Auto Equity Sales v. Superior Court, 57 Cal.2d 450, 20 Cal.Rptr.321, 369 P.2d 937, but we cannot tell anyone about it. Such a rule of law is intolerable in a society whose government decisions are supposed to be free and open and whose legal system is founded on principles of the common law (Civ. Code, § 22.2) with its elementary reliance on the doctrine of stare decisis." (7)
The paradigm error in all of this is that our law is not legislated by the courts in "binding authority" or otherwise. Separation of powers will not allow that. Rather the development of our common law is by the application of reason to facts. A much larger institution is involved in this process than the judiciary. It includes also the legislative bodies, the executive, and the people. In general courts have the first opportunity to say what the law is. Reports of those statements are reported to the community, and are often carried by journalists, allowing the public generally to learn, concur or to express concern. If the public concurs the rule stands for ever. But if others, including other panels, see weakness, they challenge it. Sensitized by possible application to themselves, all manner of judges, legal and other academics, journalists, industry representatives, clergy, lobbyists, industry groups, unions, political entities, legislators – the citizenry generally – help keep justice, judges and the law itself on track, constantly repairing and improving even the little things. Mostly it is the very inconsistencies Kozinski is hell bent to eliminate that serve to focus our collective attention to the refinement of our law.
The concept of "binding precedent" is destabilizing because rather than allowing open latitude for various opinions in the judiciary that gradually move the equilibrium to truth, it forces truth underground, erupting discontinuously only when political coalitions form on the court. Nor does it encourage citizens to correct their conduct in anticipation of correction of the law by the court. The judiciary becomes like a novice driver correcting by jolts rather than infinitesimal adjustment.
Kozinski has said that litigants are free to use the reasoning of unpublished opinions in our courts, they just can’t say that the appellate court embraced that reasoning to affect others (8) . That policy impugns the integrity of our judiciary and constitutes a content restriction on speech in a forum quintessentially established for debate. Such a restriction cannot withstand strict or even rational scrutiny for it is not rational to maintain a content restriction that strikes only 85 percent of our law from discussion in our courts of law.
If the recent terrorist attacks on America have had any meaning at all, it is this: The sine qua non of civilization requires that controversies be brought to forums where reasoned adjudication can take place. The prerequisite is existence of forums respected by all for dedication to reason - even if they err. No citation rules, or rules of court encouraging perpetuation of error like "binding precedent" supported by Kozinski are inconsistent with the integrity of such forums and therefore destructive of civilization. It is also offensive to the basic understanding of law and justice innate in the human species to say to a losing litigant that the law used to resolve his case is not good enough to use to resolve other similar cases. Therefore these rules, and "binding precedent" must end.
In its stead we prefer decisions with reasons stated, respectful of precedent "binding" only according to stare decisis, and not more binding. We relish the inconsistencies that result because great truths in law, like in science, are revealed by attention to inconsistencies. We have faith that each ensuing decision clarifies previous inconsistencies, with great truths becoming noble in the process. We do not see this as a recipe for chaos, but a recipe for a chaord as defined by Dee Hock(9) . It mirrors democracy itself, which is both chaotic and orderly, and which depends upon the exercise of value guided judgment at all levels, continuously educated and improved by a great and free discussion.
Out of this great chaotic discussion we see that a time will come when the promise of Liberty and Justice for All, to which we are pledged, will assert itself in our world. The mutual exclusivity of that promise will yield utopia when all of us will come to possess, understand, and love an infinitely just and granular law that we are never tempted to use our liberty in such a way as to be unjust to our fellow beings. It takes faith to believe we can get there with free and open discussion of law resulting in judicial and legislative refinements -more law- but logic would indicate it is the only possible approach.
Kenneth J. Schmier
Michael K. Schmier
Committee for the Rule of Law
Phone: (510) 652-6086