Committee for the Rule of Law
1475 Powell Street Suite 201
Emeryville, California 94608
November 8, 2002
Patrick J. Schiltz
Associate Dean and St. Thomas More Chair in Law
University of St. Thomas School of Law
1000 LaSalle Avenue -- TMH 440
Minneapolis, MN 55403-2005
Phone: (651) 962-4896
Fax: (651) 962-4881
Dear Professor Schiltz:
We have reviewed Action Item IV.F Item No. 01-01 (citation of non-precedential decisions) together with its proposed alternatives. We support that portion of the action that eliminates restrictions upon the citation of records of appellate court proceedings.
We applaud the committee for recognizing that the term “unpublished” is misleading because all decisions of the appellate courts are in fact published in any meaningful sense of the word. However, in our opinion, substitution of the phrase “non-precedential” serves no better because all of the decisions of our appellate courts are, by both definition and the fact of their occurrence, precedents. This committee should not confuse debate regarding the role precedent is to play in the judicial process by redefining the word precedent. We would prefer that the difficult debate regarding the vast array of subtle issues the role of precedent plays in our judicial system be left for another time, and that the focus here be elimination of no-citation rules, which are, in your reporter’s words, difficult to defend.
We recognize that the unveiling of a body of precedents written by jurists expecting that such precedents would not be published or cited, and which are unlikely to have been contemporaneously reviewed and criticized by the vast community of people that attend to published opinions creates substantial risks that bad or inarticulate law will have undue force in our judicial system. We also expect that this same body of law may contain many gems of creative improvement to our law. We therefore respect a designation that these decisions, and decisions created in the future, can be for “persuasive use not inconsistent with reason”.
In our view this designation is not inconsistent with stare decisis when properly applied, because we think assessing the usefulness of any precedent is appropriately within the reasonable discretion of judges as guided by the flexible considerations stare decisis describes. We are satisfied that judges will exercise this discretion with great care. To impose any more structured rules on decisions of judges defeats the expressive use of human judgment we wish to promote throughout our judiciary. We believe that judicial respect for the humanity of persons who bring their matters to courts of law for peaceful determination is the foundation of the integrity of the judicial system, not the correctness of decisions. Therefore we hope that, given this broad view of stare decisis, judges will again carefully explain their reasoning to litigants so that even when that reasoning can be shown at some later date to be incorrect, parties to litigations will know that the judges did their utmost to understand their arguments and reasonably decide their cases.
We leave for another time whether there can exist a valid classification of “binding precedent” in which one panel may bind another panel of even rank. We are concerned that such a rigid view of precedent usurps the power of the legislature.
Therefore we submit the following rule as the Rule of Law Alternative:
An opinion previously designated as non-precedential, not to be published, or the like or henceforth designated for persuasive use only, may be cited for its persuasive value as well as to support a claim of claim preclusion, issue preclusion, law of the case, double jeopardy, sanctionable conduct, abuse of writ, notice, or entitlement to attorney’s fees, or a similar claim. Courts need not follow such opinions where articulable reason exists. A court must not impose upon the citation of any relevant action, decision, or opinion of a court any restriction that is not generally imposed upon the citation of other sources.
This alternative avoids any tacit approval of authority of courts to make non-precedential decisions by prospectively eliminating such classes of authority. Rather, this rule makes clear that in the absence of a binding precedent designation, precedent is merely persuasive. The rule does not prohibit courts from specially designating opinions as “binding precedent” or defining that term as they see fit. In the last sentence “non-precedential opinions” has been replaced by “any relevant action, decision, or opinion of a court” to avoid confusion as to whether the new rule is limited by existing definitions of court actions deemed to be “opinions”.
Finally, I want to share with the committee a story from the Aggadah (associated with the Talmud). This story was written down over 1200 years ago and purports to be some 3500 years old.
Eliezar, who was Abraham’s servant, went down into Sodom. There he encountered a thief attacking a stranger. When he interceded on behalf of the stranger, the thief threw a rock into the forehead of Eliezar and Eliezar began to bleed profusely. The thief then presented Eliezar with a bill for the medical service of blood letting. When Eliezar refused to pay, the thief took him to Sodom’s court. The judge ruled in favor of the thief. Shocked at the result, Eliezar picked up a rock and threw it into the forehead of the judge, drawing blood. Said Eliezar, “Take what you owe me and pay the thief your judgment.” (From Legends of the Bible by Louis Ginzberg.)
As this story illustrates, common men have known since antiquity that the test of judgment is that the judge would, at the time of making his decision, apply the same rule to himself if similarly situated. That is the fundamental warranty of justice.
The committee is to be congratulated for redirecting our judicial system toward its mark.
Kenneth J. Schmier
Committee for the Rule of Law