Statement of Kenneth J. Schmier Before the Assembly Judiciary Committee May 6, 2003.
The crux of everything we will talk about here is that once you allow final courts of appeal to decide cases without any regard as to how their rulings will be used in the future, the mechanism by which the rule of law governs their discretion is rendered completely ineffective.
The committee’s sole objection is that “creating an unrestricted statutory right to cite the source of an unpublished opinion’s legal analysis involves too high a price.” All of our freedoms come at a price. Nothing in a free democracy appears at first to be as practical as in a totalitarian regime. Voting, open hearings, endless debates… Government accountability, and protection of the rights of the people always involve a huge price. But, we all know the price is worth it.
Here we are talking about freedom of speech. The simple freedom to tell a court that it decided a like case before. The simple freedom to ask a court the question, “You yourself embraced the logic I argue to you, what has changed that you now refuse to honor that same logic?” The simple freedom to use the only tools reason allows parties that stand before courts to use.
Is freedom of speech so unimportant to all of us here that it does not allow us to tell government officials how they have treated others similarly situated?
The committee’s report lists line by line four judicial institutions that have opposed 1165. In favor of the bill it lists the phrase: “many individuals.” That shows a lot. Government always wants to treat individuals as a herd. Government needs constant reminding that individuals really matter in America. So the question is: Shall individuals have any larger importance in our courts because what happens to each potentially affects all through citation? Or are we safe to allow the courts to deal with us one by one, while they assure our neighbors and community to look away because no matter how wrong, or how different, or how unjust one individual is treated, it in no way threatens anyone but the loser?
Potential citation is the only mechanism that controls the otherwise absolute discretion of our judges. It makes the golden rule part of our law. It is what motivates the community to watch every court decision, providing us with an effective quality control system for which the judicial council offers no replacement.
The people, or at least their representatives, should have been educated and polled before the judiciary took our right to cite appellate opinions from us.
1165 should be passed so that vote can take place.