Quotations

 

    "Because published opinions construing the statute do not exist, and the unpublished opinions that do are easily obtained by interested lawyers and judges, the unpublished opinions may influence the strategy of counsel and the decisions of trial and perhaps even appellate courts. The existence for a long period of time of an underground body of law on the meaning of [Cal. Health & Safety Code] section 11362.795 (to which some members of this panel have admittedly contributed) is injudicious."

                Dissenting Opinion of Presiding Justice J. Anthony Kline

                People v. Moret, 180 Cal.App.4th 839, 884, 104 Cal.Rptr.3d 1, 39 (Cal.App. 1 Dist., 2009.)

 

    "These rules, in combination, circumvent the commands of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. Under Auto Equity,

 

'all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state. . . ' (Id. at p. 455, emphasis added.)

    Auto Equity requires courts to follow all decisions of courts exercising superior jurisdiction. This clearly includes any written decision, whether 'officially' published or not. The rules, without any legislative authorization, make adherence to the commands of Auto Equity an impossibility. Parties cannot cite, and courts cannot rely on the unpublished decisions of superior courts. These rules must yield."

 

Appellant's Reply Brief from Schmier v. Supreme Court of California

 

"If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser. (I don't say that judges are actually doing this–only that the temptation exists.) Or if, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug. Again, I'm not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings." 

 

1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas - Little Rock School of Law ; Richard S. Arnold. In Anastasoff. v. United States, 223 F.3d 898 (8th Cir. 2000), Judge Arnold and his panel declared unpublished opinions to be unconstitutional. This opinion was subsequently vacated on other grounds, 235 F.3d 1054 (8th Cir. 2000) by an en banc court.

"A public trial requires witnesses' testimony to be public, so it deters perjury. It requires a judge's rulings to be made in public, as today, so it deters partiality and bias. And by requiring prosecutors to present their charges and evidence publicly, it deters vindictiveness and abuse of power."

 

Judge T.S. Ellis, III, regarding a government proposal to restrict public access to evidence in the forthcoming trial of two former officials of the American Israel Public Affairs Committee who are charged under the Espionage Act with unauthorized receipt and transmission of classified information.  Read more about this here.

"[T]here is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose on a minority must be imposed generally." Railway Express Agency v. New York (1949)
Mr. Justice Rehnquist, Madsen v. Woman’s Health Center, Inc, 512 U.S. 763, 114 S.Ct. 2516, 129 L.Ed. 593 (1994)

Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, "it is proper to take alarm at the first experiment with our liberties."
Mr. Justice Clark, School District of Abington Township v. Schempp, 374 U.S. 203, 83, S.Ct. 1560, 10 L.Ed. 844 (1963)

…although efficacious administration of governmental programs is not without some importance, "the constitution recognizes higher values than speed and efficiency."
Mr. Justice Brennan, Frontierfo v. Richardson 411 US. 677, 93 S.Ct. 1764, 36 L. Ed 2d 583 (1973).

Both equal justice and due process emphasize the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, "stand on an equality before the bar of justice in every American court."
Mr. Justice Black, Griffin v. Illinois, 51 U.S. 12, 76 S.Ct. 585, 100 L.Ed 891 (1956)

[re: incorrect claim California AB 1655 violates separation of powers doctrine]
The word "person" in the contest of the Due Process Clause of the Fifth Amendment cannot, by any reasonable mode of interpretation, be expanded to encompass the States of the Union, and to our knowledge this has never been done by any court. Likewise, courts have consistently regarded the Bill of Attainder Clause of the Article I and the principle of separation of powers only as protections for individual persons and  private groups,  those who are particularly vulnerable to nonjudicial determinations of guilt.
Mr. Chief Justice Warren, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed. 2d 769 (1966)

 

To the extent that his order prohibited the reporting of evidence adduced at the opening of the preliminary hearing, it plainly violated settled principles: "[T]here is nothing that proscribes the press from reporting events that transpire in the courtroom." Sheppard v. Maxwell [384 U.S. 333, 86 S.Ct. 1507, 16 L. Ed. 2d 600]. [O]nce  a public hearing had been held, what transpired there
could not be subject to prior restraint. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d
683 (1976)

[re: incorrect claim that legislatures cannot change court rules (including separation of powers)]
The Legislature, however, has taken no action to alter this judicially created rule, and has declined our more recent suggestion in People v. Dillon (1983) 34 Cal. 3rd 441, 472, fn 19, 194 Cal. Rptr. 390, 668 P 2d 697, that it reconsider the rules on first and second degree felony murder and misdemeanor manslaughter.
Ms. Justice Kennard, People v. Patterson, 49 Cal 3rd 615, 262 Cal. Rptr. 195, 778 P. 2d 549

 

 

A statute that “effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another   . . . is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” [citation omitted] When plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute. [citation omitted] In considering this question, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal. The purpose of the test is not to consider whether the challenged restriction has some effect in achieving Congress’ goal, regardless of the restriction it imposes. The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress’ legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives.

Ashcroft v. ACLU, 542 U.S. ___ (2004) (Kennedy, J., writing for the majority) (emphasis added).
 
"Undoubtedly [the requirement of a written opinion] will insure a careful examination of the cases, and result in well considered opinions, because they must come before the jurists of the country and be subjected to the severest criticism... . It tends to purity and honesty in the administration of justice."
 
Delegate Wilson during the during the 1878-1879 California Constitutional Convention. 2 Willis & Stockton, Debates and Proceedings of the Constitutional Convention of the State of California (1880) at p. 951, col. 1 (quoted in Chief Justice Lucas' dissent in Powers v. City of Richmond, 10 Cal. 4th 85, 142 (1995)).
“Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges.  I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.
 
Monroe H. Freedman - Professor of Law at Hofstra University School of Law.  From a Speech to the Seventh Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit (May 24, 1989), reprinted in: 128 F.R.D. 409, 439 (1989). 

"There isn't any good argument. It's my opinion that judges who believe that unpublished opinions should be without precedential value are driven to that conclusion by the sheer volume of work. I don't know how the battle will be resolved, but ultimately I hope and believe that the idea of non-precedential opinions of any kind will be consigned to the dust bin."

Senior Circuit Judge Richard S. Arnold of the U.S. Court of Appeals for the Eighth Circuit, November 03, 2003

"I ask you to uphold the values of America, and remember why so many have come here. We are in a fight for our principles, and our first responsibility is to live by them."
George W. Bush, Address to Congress, September 20, 2001

Judiciaries have maintained and expanded the 'non-publication' rules by refusing to hear challenges to their propriety. But recently, in the case of Anastasoff v. United States of America, Judge Arnold, together with Judges Heaney and Magnuson, held,

Judge Richard S. Arnold, Judge of the United States Court of Appeals, Eighth Circuit, in Anastasoff v. United States of America
Judge Richard S. Arnold, Judge of the United States Court of Appeals, Eighth Circuit, in Anastasoff v. United States of America
Judge Richard S. Arnold, Judge of the United States Court of Appeals, Eighth Circuit, in Anastasoff v. United States of America

More Quotations


Submission of The United States Department of Justice to the Commission on Structural Alternatives for the Federal Courts of Appeals
Michael K. Schmier, candidate for Attorney General, statement submitted for Voter Handbook, 1998 primary. Chief Justice Ron George, for the California Supreme Court, refused to allow this statement to be published in the Official Voter Handbook . A blank page was published in its place, possibly costing him the election. The Chief Justice and three other Supreme Court Justices were running for retention in the same election cycle.
Stephen F. Barnett, Professor, University of California, Berkely, Boalt School of Law. San Francisco Daily Journal March 9, 1998, Publish is his Platform by Peter Blumberg
San Francisco Daily Journal, March 9, 1998 Publish is his Platform by Peter Blumberg
Judge Gary Taylor, United States District Judge, Central District Federal Court From a Federal Court order in a capital case.
Minutes of the Meeting of the [Constitutional Revision] Committee on Article VI, July 9, 1965 at the International Hotel, Los Angeles.
Human Rights Commission Response to IJ Editorial by Mayme Hubert and Carole Hayashino, Chair and Vice-Chair Marin County Human Rights Commission

The California First District Court of Appeal ruled the state’s Ellis Act protected a landlord from the San Francisco’s hotel preservation ordinance. The ruling was made in an unpublished decision:

S.F. Landlord Wins Court Fight Over Replacing Units San Francisco Chronicle 1/28/99 by Jason B. Johnson.
People v. Valenzuela filed April 26, 1978 Superior Court No. CR A 16021 Municipal Court of the Beverly Hills Judicial District No. M-63478 Opinion and Judgment of the Appelate Department of the Superior Court of the State of California for the County of Los Angeles. Certified for Publication. Case Removed by the Appellate Court, Decision Vacated and case decided on other grounds. Only a poor copy of this decision can be found.
Rose Bird, later Chief Justice of the Supreme Court of California, State Bar of California Reports, Sept. 1974 quoted in People V. Valenzuela, Ibid.,
Presiding Judge Cole’ concurrence, County of Los Angeles v. Wilshire Insurance Co. (1978) 103 Cal. App. 3d Supp.1, 3, 163 Cal. Rptr. 123, 124.
Justice Scalia with whom Justice Marshall and Justice Blackmun join, concurring in the judgment in James B. Beam Distilling Co. v. Georgia 501 U.S. 529, 548 111 S.Ct. 2439, 2450 (1991)
Justice Ginsberg, on the children's broadcast Nick News: Nick News (Channel 36, San Francisco Area, television rebroadcast, Dec. 27, 1997).
Report of the Chief Justice’s Advisory Committee for an Effective Publication Rule .June 1, 1979, pg 15
Report of the Chief Justice’s Advisory Committee for an Effective Publication Rule .June 1, 1979, pg 18
U.S. Supreme Court Justice John Paul Stevens
County of Los Angeles et.al. vs. Kling
474 U.S. 936 at 937 (1985)
U.S. Supreme Court Justice Louis Brandeis
U.S. Supreme Court Justice Louis Brandeis
California Associate Justice Robert S. Thompson,
California State Bar Journal, Nov./Dec. 1975
U.S. District Judge William J. Holloway, Jr.
10th Circuit
In re Rules 955 F.2nd 38
Tampa, Florida Attorney William "Chip" Merlin
As quoted by Richard C. Reuben, "New Cites For Sore Eyes," ABA Journal, June, 1994
Robert S. Gerstein,
"Law by Elimination: Depublication in the
California Supreme Court"
67 Judicature, No. 6 (December-January 1984)
U.S. Justice John Paul Stevens,
Illinois State Bar Association Centennial Dinner,
Springfield, Illinois, January 22, 1977
J. Myron Jacobstein,
"Some Reflections of the Control of the Publication of
Appellate Court Opinions,"
27 Stanford L. Rev. 791 (Feb. 1975)
Julie Hayward Biggs, "
Censoring the Law in California: Decertification Revisited,"
30 Hastings Law Journal 1577 (May 1979)
J. Clark Kelso,
"A Report on the California Appellate System,"
45 Hastings Law Journal 433 (March 1994)
Edwin R. Render,
"On Unpublished Opinions,"
73 Kentucky Law Journal 164 (1984-85)
William M. Richman and William L. Reynolds,
"Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition,"
81 Cornell Law Review 273
J. Clifford Wallace, "
Developing the Mission of the Federal Courts
-- A Method to Determine the Size of the Federal Judiciary,"
27 Connecticut Law Review 851, 858 (1995)
Federal Circuit Judge Philip Nichols, Jr.,
Introduction, "Selective Publication of Opinions: One Judge's View,"
35 American University L. Rev. 909, 920 (1986)
Thomas D. Baker, "
Rationing Justice on Appeal: The Problems of the
U.S Courts of Appeal," 130 (1994)
Kurt Shuldberg,
"Digital Influence: Technology and Unpublished Opinions
in the Federal Courts of Appeals,"
85 California Law Review 541
Gideon Kanner,
"The Unpublished Appellate Opinion: Friend Or Foe?"
48 California State Bar Journal 387 (1973)
Prof. Philip B. Kurland, quoted in Rosen and Rosen,
"Evolution or Revolution in the Courts?"
78 Case & Comment 20, 26 (March-April 1973)
Gideon Kanner,
"The Unpublished Appellate Opinion: Friend Or Foe?"
48 California State Bar Journal 387 (1973) [Italics in original]
William L. Reynolds and William M. Richman,
"An Evaluation of Limited Publication in the United States Courts of Appeals:
The Price of Reform,"
48 The University of Chicago Law Review, 573 (1981)
Jerry L. Mashaw,
"Textualism, Constitutionalism, and the
Interpretation of Federal Statutes,"
32 William and Merry Law Review 827, 838 (1991)
Owen M. Fiss,
"The Bureaucratization of the Judiciary,"
92 Yale Law Journal 1442, 1484 (1983)
Justice Bernard Jefferson,
dissent, in People vs. Para, No. CRA 15889
(California Court of Appeals, Aug. 1979)
William Cranch, 1 United States Reports (5 U.S.) iii (1803)
Edwin R. Render,
"On Unpublished Opinions,"
73 Kentucky Law Journal 153 (1984-85)
Fourth Circuit, Jones vs. Superintendent, Virginia State Farm,
465 F.2d 1091, 1094 (4th Cir. 1972),
cert. denied 410 U.S. 944 (1973)
U.S. Justice William O. Douglas,
"Stare Decisis,"
49 Columbia Law Review 736
Benjamin N. Cardozo,
"The Nature of the Judicial Process, 149 (1921)
U.S. Justice John Paul Stevens,
Izumi Seimitsu Kogyo Kabushiki Kaisha vs. U.S. Philips Corp.,
114 S. Ct. 431