Publish or Perish
Perspective From a Client
By Kenneth J. Schmier
Chairman, Committee for the Rule of Law
Not as an attorney, but as a client and businessman, I’d like to offer a response to Please Don’t Cite This! June ’00. Judges Alex Kozinski and Stephen Reinhardt have written the first honest, if unsatisfying, defense of non-publication - no citation rules. These rules, unthinkable only a couple of decades ago, are presently rendering some 90% of the work product of the California Courts of Appeal and the Ninth Circuit official "nullities". What happened to stare decisis?
When I went to law school (Hastings ’74) we occasionally ran into an opinion "limited to its facts". But such cases were unusual, and were the object of suspicion because they stretched the law. Now, in direct conflict with numerous constitutional principles, law, common sense, and James B. Beam Distilling Co. v. Georgia (1991) 501 U.S. 529, appellate court determinations, both criminal and civil, are only selectively prospective, and it is illegal to mention most of them in any court in the jurisdiction! Our justices have created justifications for no citation rules from emperor’s magic cloth only court sycophants can see.
American courts were once renowned for their principled legal doctrine equally applicable to all – "Equal Justice Under Law" is carved over the entrance of our Supreme Court. This is no longer true, not even in theory. Cries of foul are heard regularly, and litigants are turning to private judges. Why? Because not only is the public court system unbearably cost and time inefficient, but the results it produces have become well-nigh random, and worse.
Commerce has changed greatly in the past twenty years, but there is no knowable record of how most of the commercial law issues presented to our courts during that time have been resolved. In the absence of such a record, how can the judiciary possibly deliver equal protection? Or sound judgments? Or even stay abreast of business realities?
The judges tell us that by using unciteable opinions, cases can be disposed of without stating their facts, nor need they "announce a rule general enough to apply to future cases" in their resolution. But this deprives business people of any real opportunity to chart safe conduct. Subtle rules often dictate the results of cases that preserve or destroy our lives and fortunes. We cannot plan for the consequences of rules that we don’t know, and which are not citeable when discovered. Vague? It’s crazy-making. We cannot nip errant rules in the bud when we don’t know about them. Nor can we avoid uncertain law. The resulting fear and uncertainty greatly limit our productivity. Our democracy cannot possibly govern itself in the absence of official feedback from our courts as to how our law is actually being applied.
Can the result, the facts, and the articulation of the principles upon which a case was determined be disconnected? The phrasing of legal principles determining a result is the law. A "result" cannot be right unless it flows logically from legal doctrine applied to a given fact situation. It is not supposed to be a judicial result until three appellate judges have examined the case and at least two concur. It is assumed by most that three judges actually work up appellate cases. By most accounts that is no longer the practice. Instead, much of the courts’ output qualifies as "one-judge" or "no-judge" opinions, to borrow the words of retired Justice Robert S. Thompson.
We used to solicit observations from the multitude of perspectives that make up our community by publishing every decision. Legal scholars and representatives of constituencies threatened by any rule being applied by the judiciary could be counted upon to join the call for review or legislative correction. No more. Issuing decisions as "nullities" sedates public concern and keeps would-be commentators ignorant of development of the law.
But the harm is surfacing nonetheless. Chief Justice Ron George has said, "You’d have a difficult time separating the wheat from the chaff if you published [all appellate court opinions]." Kozinski and Reinhardt tell us, "Using the language of the memdispo to predict how the court would decide a different case would be highly misleading". Kozinski himslef has told the New York Times that most of the opinions of the United States Court of Appeals, upon which he sits, are "garbage". Deputy Attorney General Tom Blake, who defends the California Supreme Court in a challenge to its rules 976-979 said, "We’d need a hundred Supreme Court judges to correct all of the error coming out of the appellate courts." That’s an argument that proves too much. Who is correcting all that error now?
What it all means is that appellate assembly lines have serious quality control problems.
According to Kozinski and Reinhardt these quality control problems are solved by the no citation rule because the court need not worry about propagation of error. Not so. It is scrutiny for potential propagation of error that protects each one of us individually as we stand one at a time before the awesome power and often-uncontrolled egos of our judges. Shall we tolerate injustice to others because no harm threatens us personally today? We know better.
The Judges tell us that the process of writing published opinions, "Frequently…brings to light new issues, calling for further research, which in turn, may send the author back to square one." But this only demonstrates that square one must be a "working hypothesis" rather than a "result".
No working hypothesis should harden into a result until it has survived thorough scrutiny by at least three well-trained and experienced minds applying legal principles that bring to bear the benefit of historical experience. As the judges admit, frequently working hypotheses fail because of conflicts. Aren’t those of us shunted to the "memdispo" track entitled to a change of result if law will not justify the working hypothesis? Given the treatment of petitions for rehearing, even those coupled with an alternative demand that the "new law" of the unpublished opinion be published, the answer is currently no. Publication of decisions and stare decisis allows us litigants to hold the law hostage for a right result. At this time the judiciary regularly refuses both review and publication, effectively shooting the hostage.
What meaning is there in equal protection, if principles unknown to existing law can be used to resolve our cases yet be sheltered from public scrutiny by laws insuring that these novelties will never be cited again? How do we invoke the Rule of Law to correct obstinate rule of men, if the judiciary can refuse to make its pronouncements law for all? We can’t.
Ideas have consequences, and the consequence of the notion that a solemn judicial declaration of "the law" that dictates the resolution of a dispute, is not law at all when the next such dispute comes along, is simply a call for legal anarchy.
To bring this matter to the attention of the people and our lawmakers, we have formed the Committee for the Rule of Law. www.Nonpublication.com is our meeting place and our library. We encourage reports of abuse of unpublished opinions through the website.
We are speaking to every group that will listen. The public and its representatives are shocked to learn of no citation rules and the extent of their operation. They should be because these rules gut the promises of equal treatment and freedom of speech that form the core of our democracy.
Please Don’t Cite This! answered nothing; it only confirmed prevailing suspicions by conceding that most appellate decisions are the product of expediency, not principle, and that many of them are made not by judges, but by their clerks. As businesses often learn the hard way, the public is rarely fooled with inferior quality for long. The same is true of the courts. Polls consistently show that the stature of the Courts is declining. Sophisticated litigants are abandoning the public courts in droves. Respect for law may follow, for obedience to law can not be taught while judges ignore it.
Publication and citation of appellate decisions lead to knowledge of the laws and the reasons for the laws in the general populace, the perfection of the law itself, and voluntary obedience to the law. No citation rules ultimately must lead to lawlessness and chaos. Publish or perish.