KENNETH J. SCHMIER, ESQ. (Bar No. 62666)

PAUL W. THORNDAL, ESQ. (Bar No. 178622)

1475 Powell Street, Suite 201

Emeryville, CA 94608

(510) 652-6086 (telephone)

(510) 652-0929 (facsimile)

Attorneys for Plaintiff,

MICHAEL SCHMIER

 

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

 

 

MICHAEL SCHMIER,

Plaintiff/Petitioner,

v.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT and JUDICIAL COUNCIL OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT,

Defendants/Respondents.

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Case No. C 00 4076 VRW

OPPOSITION TO DEFENDANTS' MOTION TO DISMISS COMPLAINT

 

 

 

Date: March 15, 2001

Time: 2:00 p.m.

Courtroom: 3, 17th Floor

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

I. INTRODUCTION 1

II. STATEMENT OF FACTS 2

A. Ninth Circuit Rules 2

B. Plaintiff/Petitioner Michael Schmier 3

C. Allegations Regarding Constitutionality Of Local Rules 4

III. LEGAL ARGUMENT 4

A. Plaintiff's Right To Relief Is Clear And Certain Because The Disputed

Rules Create A System Of Selective Prospectivity Which Violates

Article III And The Constitutional Rights Of Equal Protection, Due

Process, And Free Speech 4

1. Rules 36-1 Through 36-4 Create A Secret Body Of Law And

Circumvent The Doctrine Of Stare Decisis 5

2. Rules 36-1 Through 36-4 Violate Article III By Conferring

Upon The Ninth Circuit A Power That Goes Beyond The

"Judicial" By Creating A System Of Selective Prospectivity 7

3. Rules 36-1 Through 36-4 Violate The Equal Protection And

Due Process Protections Of The Fifth Amendment 10

4. Rules 36-1 Through 36-4 Violate Individuals' Freedom Of

Speech By Imposing A Prior Restraint On The Content Of

Speech 14

B. The Complaint Contains Sufficient Allegations In Support Of

Plaintiff's Standing 16

1. Plaintiff Has Alleged Injury-In-Fact Sufficient To Meet

Article III Minimum Standing Requirements 16

2. The "Prudential Principle" Does Not Preclude Standing 18

C. Plaintiff's Claims Are Ripe For Judicial Review 19

D. This Court Has Jurisdiction To Adjudicate The Claims And Issue

The Relief Sought 21

IV. CONCLUSION 25

 

TABLE OF AUTHORITIES

 

CASE AUTHORITIES:

Abbott Laboratories v. Gardner, 387 U.S. 136 (1965) 19, 20

Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated on other grounds,

235 F.3d 1054 (en banc) passim

Barron v. Reich, 13 F.3d 1370 (9th Cir. 1994) 24

Branson School District RE-82 v. Romer, 958 F. Supp. 1501 (D.Colo. 1997) 17

Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371 (1940) 12

City of Las Vegas v. Foley, 747 F.2d 1294 (9th Cir. 1984) 24

Cohens v. Virginia, 6 Wheat. 264, 399, 5 L. Ed. 257 (1821) 7

Colgrove v. Battin, 413 U.S. 149 (1973) 5

Community Nutrition Institute v. Block, 698 F.2d 1239 (D.C. Cir. 1983), cert. granted,

464 U.S. 991, judgment reversed 467 U.S. 340 19

County of Los Angeles v. Kling, 474 U.S. 936, 938, 940 (1985) 6

Desist v. United States, 394 U.S. 244 (1969) 9, 12

Fallini v. Hodel, 783 F.2d 1343 (9th Cir. 1986) 24

Frazier v. Heebe, 482 U.S. 641 (1987) 4, 5, 22, 23

Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431 (9th Cir. 1996) 20

Friends of the Boundary Waters Wilderness v. Thomas, 53 F.3d 881 (8th Cir.1995) 16, 17

Gomez v. Felker, 1997 WL 227950 at *1 (N.D. Cal. April 25, 1997) 15, 21

Goodlet v. Commonwealth of Kentucky, 825 S.W.2d 290 (1992) 11

Griffith v. Kentucky, 479 U.S. 314 (1987) 8, 9, 11, 12

Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993) 9

In Re Arzt, 252 B.R. 138 (Bankr. App. 8th Cir. 2000) 8, 24

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) passim

Japan Whaling Ass'n v. American Cetacean Soc., 478 U.S. 221 (1986) 17

Luciano v. United States, 2000 WL 1597771 at *1 (E.D.N.Y. October 23, 2000) 8, 24

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 16, 17

Mackey v. United States, 401 U.S. 667 (1971) 9

Marbury v. Madison, 5 U.S. 137 (1803) 7

Marusic Liquors, Inc. v. Daley, 55 F.3d 258 (7th Cir. 1995) 19

Mausolf v. Babbitt, 85 F.3d 1295 (8th Cir. 1996) 17

Miner v. Atlas, 363 U.S. 641 (1960) 5

Mullis v. U.S. Bankruptcy Court, 828 F.2d 1385 (9th Cir. 1987), cert. denied,

486 U.S. 1040 (1988) 21

Near v. Minnesota, 283 U.S. 697 (1931) 14

New York Times Co. v. United States, 403 U.S. 713 (1971) 14, 15

Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) 19

Nolan v. Judicial Council of the Third Circuit, 346 F. Supp. 500 (D. N.J. 1972),

aff'd, 481 F.2d 41 (3rd Cir. 1973) 21

Nordlinger v. Hahn, 505 U.S. 1 (1922) 11

Ohralik v. Ohio State Bar, 436 U.S. 447 (1978) 16

Oriential Health Spa v. City of Ft. Wayne, 864 F.2d 486 (7th Cir. 1989) 20

Panko v. Rodak, 606 F.2d 168 (7th Cir. 1979), cert. denied 444 U.S. 1081 (1980) 21

Patel by Patel v. McIntyre, 667 F.Supp. 1131 (D.S.C. 1987) 25

Planned Parenthood v. Casey, 505 U.S. 833 (1992) 10

Price v. Akaka, 3 F.3d 1220 (9th Cir. 1993) 17, 18

Sierra Club v. Morton, 405 U.S. 727 (1972) 17

Sierra Club v. Robertson, 28 F.3d 753 (8th Cir.1994) 17

Staub v. Baxley, 355 U.S. 313 (1958) 14

 

Teague v. Lane, 489 U.S. 288 (1989) 12

Texas Rural Legal Aid, Inc. v. Legal Services Corp., 783 F. Supp. 1426 (D.D.C. 1992) 16

Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994) 15

United States v. Cianfrani, 573 F.2d 835 (3rd. Cir. 1978) 19

United States v. Goldman, 228 F.3d 942 (8th Cir. 2000) 8, 24

United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) 19

Valley Forge Christian College v. Americans United for Separation of Church and State,

454 U.S. 464 (1982) 18

Whitehouse v. United States District Court, 53 F.3d 1349 (1st Cir. 1995) 5, 22, 23

 

 

STATUTES AND RULES:

28 U.S.C.A. 1331 21

28 U.S.C.A. 1654 4, 22

28 U.S.C.A. 2071 4, 22

Eight Circuit Rule 28A(i) 7, 10

Fed. R. Civ. Pro. 8 20

Fed. R. Civ. Pro. 83 4, 22

Ninth Circuit Rule 36-1 passim

Ninth Circuit Rule 36-2 passim

Ninth Circuit Rule 36-3 passim

Ninth Circuit Rule 36-4 passim

United States Constitution, Article III passim

United States Constitution, First Amendment passim

United States Constitution, Fifth Amendment passim

 

 

MISCELLANEOUS:

Comment, "A Snake in the Path of the Law: The Seventh Circuit's Non-Publication Rule,"

39 U. Pitt. L. Rev. 309 (1977) 6, 13

Comment, "Digital Influence: Technology and Unpublished Opinions in the Federal Courts of

Appeals," 85 Calif. L.R. 541 (1997) 6, 13

Dragich, "Will the Federal Courts of Appeals Perish If They Publish? Or Does

the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater

Threat?" 44 Am. U. L. Rev. 757 (1995) 12

Gardner, "Ninth Circuit's Unpublished Opinions: Denial of Equal Justice?"

61 A.B.A. J. 1224 (1975) 7, 13

Hon. Alex Kozinski & Hon. Stephen Reinhardt, "Please Don't Cite This!" Cal. Lawyer

(June 2000) 13

Hon. Boyce F. Martin, Jr., "In Defense of Unpublished Opinions,"

60 Ohio St. L.J. 177 (1995) 12

Kanner, "The Unpublished Opinions: Friend or Foe?" 48 Cal. St. B.J. 386 (1973) 6, 13

Llewellyn, The Common Law Tradition (1960) 6

Reynolds & Richman, "The Non-Precedential Precedent -- Limited Publication and No-Citation

Rules in the United States Courts of Appeals," 78 Colum. L. Rev. 1167 (1978) 6, 13

Seligson, "The Use of Unreported Cases in California," 24 Hastings L.J. 37 (1978) 5

Wright, Miller, Cooper, 13 Federal Practice and Procedure, Juris.2d 3531.10 19

 

 

 

 

 

 

 

 

 

 

I. INTRODUCTION

Plaintiff/Petitioner seeks a Writ of Mandate, or in the alternative, a Writ of Prohibition, to enjoin enforcement of local rules of the Ninth Circuit Court of Appeals which deny precedential effect and prohibit citation of unpublished dispositions. Significant controversy exists in the legal community regarding the effect of limited publication of court opinions on uniformity of law. This action essentially involves a simple question. Does the doctrine of precedent limit the power of our judiciary? The local rules at issue operate to avoid the precedential effect of prior judicial decisions in violation of judicial power delegated to courts by Article III of the Constitution, as well as Constitutional rights of equal protection, due process, and free speech. Recently in an Eighth Circuit tax case, the United States government advocated the position that an unpublished case was controlling as precedent in the matter before the court. The Eighth Circuit held itself to be bound to that unpublished opinion by stare decisis and found that its own rules regarding the precedential effect of unpublished opinions was unconstitutional. In support of similar Ninth Circuit rules, Defendants/Respondents, the Ninth Circuit Court of Appeals and its Judicial Council, now move to dismiss Plaintiff's complaint on various grounds, including Plaintiff's standing, this Court's jurisdiction, and the ultimate merits of the action. The motion to dismiss should be denied.

In a common law system, such as the Ninth Circuit, the publication and citation of opinions serves as a warranty that justice is applied prospectively in a manner affecting all citizens equally and in harmony with past decisions. Without the warranty provided by prospectivity, public access and knowledge, there is no warranty of fair and just results, no means of assuring continuity and uniformity of law, and no means for public comment should continuity of law be disturbed or changes in the law be required. There exists no mechanism to invoke the rule of law to control the caprice of judges if judges are set free from prospective application of their decisions. Since

Defendants' rules have set the judges of the Ninth Circuit free of prospective application of their

individual decisions, without even distinction or correction, such rules and conduct evidence the end of the rule of law, and leave the people subject solely to the uncontrolled rule of men. As such, these rules are inconsistent with the letter and spirit of our Constitution.

At best, Defendants' challenge is premature. Each of Defendants' attacks should properly be brought in a motion for summary judgment where the Court may receive evidence and affidavits in support of standing and the ultimate merits of the action. Plaintiff's complaint states facts sufficient to constitute causes of action against Defendants pursuant to liberal "notice pleading" requirements. In the alternative, Plaintiff should be permitted leave of Court to amend the complaint to allege additional facts. Plaintiff's opposition to Defendants' motion is based upon this Opposition, the Complaint for Injunctive Relief/Petition for Writ of Mandate or Prohibition on file herein (hereafter the "Complaint"), and upon such other argument or evidence as the Court may hear.

II. STATEMENT OF FACTS

A. Ninth Circuit Rules.

Circuit Rules 36-1 through 36-4 involve the manner in which some written dispositions of the court are designated as "opinions" while others are not. Only those dispositions which are designated as "opinions" have precedential effect and may be cited as the law of the Circuit.

Rule 36-1 provides that some "written, reasoned dispositions of a case or motion" are designated as "opinions" while other "written, reasoned dispositions" are deemed mere "memoranda." Rule 36-2 sets forth the criteria for designation of "opinions." "All opinions are published; no memoranda are published; orders are not published except by order of the court." (Circuit Rule 36-1.)

Rule 36-3 provides:

(a) Not Precedent. Unpublished dispositions and order of this court are not binding precedent, except when relevant under the doctrines of law of the case, res judicata, and collateral estoppel.

(b) Citation. Unpublished dispositions and orders of this court may not be cited to or by the courts of this circuit except in the following circumstances. . . . [(1) law of the case, res judicata, and collateral estoppel; (2) for factual purposes, such as double jeopardy, sanctionable conduct, notice, etc.; and (3) in a request to publish.]

Plaintiff does not dispute the Ninth Circuit's contention that it is empowered to promulgate rules governing its practice, so long as such rules are consistent with Acts of Congress and the United States Constitution. The Ninth Circuit does not dispute that the rules at issue herein are "final."

Rule 36-4 provides that any person may request publication of any unpublished disposition -- i.e., to redesignate a "memorandum" decision as an "opinion" -- by letter to the court no later than 60 days after a disposition is issued, although the court remains free to deny any such request even if it is unopposed by parties to the action. Although Rule 36-4 provides that any person may request publication within 60 days as set forth in the rule, the court gives no notice to the people that particular issues contained within myriad decisions may become the law of the circuit. The rules provide no notice to anyone but the government and direct parties to the action that the law of their case may or may not become the law applicable to everyone. Nothing compels the Ninth Circuit to designate any decision as an "opinion."

B. Plaintiff/Petitioner Michael Schmier.

Plaintiff Michael Schmier alleges that he "is a citizen of the United States of America a taxpayer, a member of the State Bar of the State of California who practices in the area of employment law and regularly practices before the United States District Courts in California, and a person beneficially interested in the issuance of the writ herein sought because he has a clear, present, and substantial right to the performance of Defendants/Respondents' duties, and is personally concerned that Defendants/Respondents perform their duties under the law. Plaintiff/Petitioner is interested as a citizen and as a duly licensed attorney at law in having the laws executed and the duties in question being enforced." (Complaint, 1, p. 1:19-26.) Contrary to the assertion by Defendants in their motion to dismiss, however, these are not the sole allegations of the complaint relevant to Plaintiff's standing to bring this action.

Schmier further alleges that "[t]he violations of the United States Constitution complained of herein are continuing daily, and are causing grievous harm to numerous litigants, including Plaintiff/Petitioner herein." (Complaint, 8, 5:8-14.) The complaint includes express allegations that the harm described will cause irreparable damage to plaintiff as well as others and may not be redressed with monetary damages because the rules deprive litigants of the fundamental right to be heard, "damaging our system of law and to the body politic that relies on our courts of law to dispense justice fairly, equally, and uniformly to all litigants." (Complaint, 8, 5:8-14.) These rules also deprive this litigant of ability to know what positions the appellate court recognizes as the law of the Ninth Circuit in order to advise his clients, the very tools of his trade. Schmier alleges that the rules create restraints on his ability to express himself freely and fully in his practice of law both before the courts and in advising his clients. (Complaint, 7, 4:14-17.) Schmier expressly alleges that the disputed rules have violated his own protected rights guaranteed by the First and the Fifth Amendments of the Constitution.

C. Allegations Regarding Constitutionality Of Local Rules.

The complaint alleges that the disputed Rules violate: (1) Article III of the United States Constitution; (2) separation of powers; (3) equal protection and due process; (4) freedom of speech and right to petition the government for redress of grievances; and (5) the doctrine of stare decisis. (Complaint, 7, 4:4-12.)

III. ARGUMENT

A. Plaintiff's Right To Relief Is Clear And Certain Because The Disputed Rules Create A

System Of Selective Prospectivity Which Violates Article III And The Constitutional

Rights Of Equal Protection, Due Process, And Free Speech.

Courts have discretion to adopt local rules that are necessary to carry out the conduct of business. See 28 U.S.C.A. 1654, 2071; Fed. R. Civ. Pro. 83. However, a court's discretion in

promulgating local rules is limited. See Frazier v. Heebe, 482 U.S. 641 (1987). Courts have authority

to promulgate rules unless (1) the rules conflict with federal law; (2) the rules conflict with federal rules of criminal or civil procedure; (3) the rules are unconstitutional; or (4) the subject matter of the rule is outside the power of the court that promulgated the rule. (Whitehouse v. United States District Court, 53 F.3d 1349, 1355-56 (1st Cir. 1995)(citing Frazier, 482 U.S. 641 (Rehnquist, C.J., dissenting)(citing Colgrove v. Battin, 413 U.S. 149, 159-60 (1973), Miner v. Atlas, 363 U.S. 641, 651-52 (1960)).

The Ninth Circuit and its Judicial Council exceeded their authority in promulgated the challenged local rules because the rules are unconstitutional.

1. Rules 36-1 Through 36-4 Create A Secret Body Of Law And Circumvent The

Doctrine Of Stare Decisis.

The non-publication/non-citation rules effectively establish a body of "secret law" which undermines the doctrine of stare decisis, suppresses important precedent and allows for the disregard of binding authority. In turn, the level of actual conflict between cases is obscured. A secondary, and even more troubling, result is the creation of a "second tier" of appellate process. This is all the more dangerous because the public does not know it exists. Taken together, an appearance of, if not the reality of, unfairness arises, striking a sharp blow to the public's confidence in the judiciary.

Appellate courts in our common-law system serve two primary functions. One is the resolution of disputes. The other, more important function "is to establish the law itself, to determine what the content of the law shall be. That is the function of common law precedent and of the rule of stare decisis." Seligson, "The Use of Unreported Cases in California," 24 Hastings L.J. 37, 50 (1978). Stare Decisis is a fundamental part of the rule of law. See James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 537-38 (1991). The non-publication/non-citation rules undermine this second function by creating a body of inferior law which need not be, and often is not, reconciled with published authority.

Some defenders of non-publication/non-citation rules argue that only unimportant opinions which rehash well settled principles of law are selected for non-publication. However, this claim has been flatly rebutted by scholars who have researched the content of unpublished opinions. See, e.g., Comment, "Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals," 85 Calif. L.R. 541, 551-55 (1997); Kanner, "The Unpublished Opinions: Friend or Foe?" 48 Cal. St. B.J. 386 (1973); Reynolds & Richman, "The Non-Precedential Precedent -- Limited Publication and No-Citation Rules in the United States Courts of Appeals," 78 Colum. L. Rev. 1167, 1192-94 (1978)(cataloging blatantly inconsistent unpublished decisions issued in 1974 and 1975); Comment, "A Snake in the Path of the Law: The Seventh Circuit's Non-Publication Rule," 39 U. Pitt. L. Rev. 309 (1977)(concluding after review of 150 unreported decisions that 15% were decisions that went beyond Seventh Circuit precedent and created new law).

A related consequence of the non-publication/non-citation rules is the production of opinions which are of inferior quality. Justice Stevens echoes this concern in condemning non-publication/ non-citation rules as "spawning a body of secret law" that result in "decision-making without the discipline and accountability that the preparation of [published] opinions requires." County of Los Angeles v. Kling, 474 U.S. 936, 938, 940 (1985). As he noted,

"In our law the opinion has in addition a central forward-looking function which reaches far beyond the cause in hand: the opinion has as one if not its major office to show how like cases are properly to be decided in the future. This also frequently casts its shadow before, and affects the deciding of the cause in hand. (If I cannot give a reason I should be willing to stand to, I must shrink from the very result which otherwise seems good.) Thus the opinion serves as a steadying factor which aids reckonability."

Id. at 940 n. 6 (quoting K. Llewellyn, The Common Law Tradition (1960) p. 26).

Rules 36-1 through 36-4 undermine the accountability of the judiciary by permitting the Ninth Circuit to render decisions which flatly contradict published authority and then shield these opinions from scrutiny by simply stamping them "memoranda," not to be published or cited. These rules allow the Ninth Circuit to pick and choose which law to apply to the particular case, knowing that it will not be required to reconcile that precedent in future cases. Scholars have documented that unpublished opinions frequently are in direct conflict with other published and unpublished dispositions. See, e.g., Gardner, "Ninth Circuit's Unpublished Opinions: Denial of Equal Justice?" 61 A.B.A. JU. 1224 (1975).

It is precisely this ability of judges to choose which decisions will be legal precedent and which will not that formed the basis of the Eighth Circuit decision finding similar local rules to violate the judicial power delegated to the courts by Article III. Anastasoff v. United States, 223 F.3d 898, 899-900 (8th Cir. 2000), vacated on other grounds, 235 F.3d 1054 (en banc).

2. Rules 36-1 Through 36-4 Violate Article III By Conferring Upon The Ninth

Circuit A Power That Goes Beyond The "Judicial" By Creating A System Of

Selective Prospectivity.

A panel of the Eighth Circuit has expressly found rules of the Eighth Circuit which distinguished between precedential dispositions and nonprecedential dispositions to violate Article III of the United States Constitution. Anastasoff, 223 F.3d at 899-900.

We hold that the portion of Rule 28A(i) that declares that unpublished opinions are not precedent is unconstitutional under Article III because it purports to confer on the federal courts a power that goes beyond the "judicial." . [] Inherent in every judicial decision is a declaration and interpretation of a general principle or rule of law. Marbury v. Madison, 5 U.S. 137 (1803). This declaration of law is authoritative to the extent necessary for the decision, and must be applied in subsequent cases to similarly situated parties. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 544 (1991); Cohens v. Virginia, 6 Wheat. 264, 399, 5 L. Ed. 257 (1821). These principles, which form the doctrine of precedent, were well established and well regarded at the time this nation was founded. The Framers of the Constitution considered these principles to derive from the nature of judicial power, and intended that they would limit the judicial power delegated to the courts by Article III of the Constitution. (fn omitted.) Accordingly, we conclude that 8th Circuit Rule 28A(i), insofar as it would allow us to avoid the precedential effect of our prior decisions, purports to expand the judicial power beyond the bounds of Article III, and is therefore unconstitutional.

Id.

Since the filing of the instant action against the Ninth Circuit, the decision in Anastasoff was vacated on other grounds by the Eighth Circuit sitting en banc, 235 F.3d 1054 (hereafter "Anastasoff II"), after the I.R.S. changed its position in the underlying substantive tax dispute and rendered the action moot. In Anastasoff II, the Eighth Circuit noted that in vacating Anastasoff, the court left the question of the constitutionality of Eighth Circuit Rule 28A(i) an open question in the Eighth Circuit, although one of "great interest and importance." Anastasoff II, 235 F.3d at 1056.

Regardless of whether the opinion was vacated on other grounds, the original Anastasoff decision would be persuasive authority rather than controlling authority in the Ninth Circuit, and its reasoning remains persuasive. Since the decision was issued, a number of courts have given precedential effect to unpublished dispositions on the stated grounds that rules precluding the precedential effect of prior opinions are unconstitutional. See, e.g., United States v. Goldman, 228 F.3d 942 (8th Cir. 2000), In Re Arzt, 252 B.R. 138, 143 (Bankr. App. 8th Cir. 2000), Luciano v. United States, 2000 WL 1597771 at *1 (E.D.N.Y. October 23, 2000).

In their motion to dismiss, the Ninth Circuit and its Judicial Council set forth considerable argument against the holding and rationale of the original Anastasoff opinion. Curiously, however, Defendants do not argue in their motion against the direct case authority which supports the Eighth Circuit panel decision, i.e., James B. Beam Distilling Co., 501 U.S. at 544, which proscribes "selective prospectivity," but instead argue at length against the panel decision's discussion of the Constitutional Framer's intent as evidenced by contemporary writings and subsequent historical study of the Framers. The Eighth Circuit panel set forth a well-developed and lengthy discussion of Framers' intent, which is not addressed here in response to the motion to dismiss because the more relevant analysis is that set forth in James B. Beam Distilling Co.

The Supreme Court has utterly rejected selective prospectivity as unconstitutional in both criminal and civil cases. The Court first dispensed with selective prospectivity in the criminal arena in Griffith v. Kentucky, 479 U.S. 314 (1987). In that case, the court held that "failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication." Id. at 322. The Court reasoned that to do otherwise would compromise

the very "integrity of judicial review" and cause the courts to exceed their constitutional grant of power. Id. at 322-23. As the Court explained, "'In truth, the Court's assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.'" Id. at 323 (quoting Mackey v. United States, 401 U.S. 667, 679 (1971)(Harlan, J., concurring)).

Four years later, the Court rejected selective prospectivity in the civil context. James B. Beam Distilling Co., 501 U.S. 529, see also Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993). While the Court recognized that new rules of law may or may not be given retroactive effect, once a Court has applied the law retroactively to one litigant, it must, as a matter of due process and equal protection, apply that rule to all litigants. James B. Beam Distilling Co., 501 U.S. at 535-36.

"[S]elective prospectivity also breaches the principle that litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally." [Citation omitted.] "We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a 'new' rule of constitutional law."

Id. at 537-38 (quoting Desist v. United States, 394 U.S. 244, 258-59 (1969)).

The Court stressed that such a system of "selective prospectivity" undermines the system of stare decisis which is the hallmark of our system of justice. Id. at 540, see also id. at 548 (Blackmun, J., concurring).

Defendants here simply dismiss the James B. Beam Distilling Co. decision in a footnote, arguing that the decision "simply states the uncontroversial proposition that when the Supreme Court has applied a new rule of law to litigants in one case, 'it must do so with respect to all others not barred by procedural requirements or res judicata.'" Motion to Dismiss, p. 17, fn 15.

Indeed, that is precisely the point. The prohibition against selective prospectivity is an "uncontroversial proposition" of constitutional law, yet Ninth Circuit Rules 36-1 through 36-4 allow

selective prospectivity not only to exist but to flourish in the Ninth Circuit. The ability of the Ninth Circuit to pick and choose which of its "written, reasoned" dispositions will apply to future litigants and which of its "written, reasoned" dispositions will not apply to future litigants unquestionably creates a system of selective prospectivity. In rejecting the Eighth Circuit rules for this very reason, Judge Arnold, author of the panel decision in Anastasoff recognized,

At bottom, rules like our Rule 28A(i) assert that courts have the following power: to choose for themselves, from among all the cases they decide, those that they will follow in the future, and those they need not. Indeed, some forms of the non-publication rule even forbid citation. These courts are saying to the bar: 'We may have decided this question the opposite way yesterday, but that does not bind us today, and what's more, you cannot even tell us what we did yesterday.' As we have tried to explain in this opinion, such a statement exceeds judicial power, which is based on reason, not fiat.

Anastasoff, 223 F.3d at 903-04.

Rules 36-1 through 36-4 violate Article III by conferring upon the Ninth Circuit a power that exceeds the "judicial" power delegated by the Constitution by creating a system of selective prospectivity. That proposition, Defendants admit, is "uncontroversial," and it confers upon Plaintiff here a right to relief which is clear and certain.

3. Rules 36-1 Through 36-4 Violate The Equal Protection And Due Process

Protections Of The Fifth Amendment.

Equal protection and due process rest on the doctrines of precedent and stare decisis because all citizens before the courts are guaranteed to be subject to the same laws. See James B. Beam Distilling Co., 501 U.S. at 535-38, see also Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992).

"[N]o judicial system could do society's work if it eyes each issue afresh in every case that raised it. [Citation.] Indeed, the very concept of the rule of law underlying our Constitution requires such continuity over time that a respect for precedent is, by definition, indispensible.

Planned Parenthood, 505 U.S. at 854 (emphasis added).

In addition to violating Article III, the non-publication/non-citation rules run afoul of equal protection and due process guaranteed by the Fifth Amendment by creating a system of selective prospectivity in which the Ninth Circuit is allowed to unilaterally and with unfettered discretion decide which decisions will apply to future litigants and which will not. The Court premised its decision in James B. Beam Distilling Co. on equal protection and due process.

This system of selective prospectivity is particularly troubling where a criminal defendant is arbitrarily deprived of the benefit of a rule of law which would gain his freedom, or where the court arbitrarily imposes a more stringent "new rule of law" upon him without also imposing it on similarly situated future litigants. Such a situation "violates the basic norms of constitutional adjudication" and is blatantly unconstitutional under Griffith v. Kentucky, 479 U.S. at 322-23.

One state court expounded at length on the potential constitutional implications of non-publication/non-citation rules essentially the same as those at issue here in the case of Goodlet v. Commonwealth of Kentucky, 825 S.W.2d 290, 292-93 (1992). In Goodlet, the defendant was subject, by virtue of an unpublished opinion affirming his conviction, to a rule of criminal procedure which was soundly rejected in another unpublished opinion and was prevented from even citing the other opinion. Id. at 292 fn. 8. The court blamed the no-citation rule in particular for this injustice and stated that "[i]t would be chimerical to deny that the no-citation rules allows one to manipulate the appellate system so as to effect a particular result." Id. at 292 fn. 8, 293.

Defendants argue that the system of classification challenged in the instant action does not violate Equal Protection so long as it is "rationally furthers a state interest," under the authority of Nordlinger v. Hahn, 505 U.S. 1, 10 (1922), and that such classifications are presumptively valid. Defendants apply an incorrect standard, however, because the challenged classification "jeopardizes

exercise of a fundamental right." Id. Defendant's presumption that this system does not jeopardize exercise of a fundamental right is premised on their repeated characterization of this system of selective prospectivity as affecting different "situations" and different "dispositions" when in fact it is different litigants in similar situations who are being treated differently and whose fundamental rights are being applied inequitably. The United States Supreme Court has recognized that selective prospectivity violates fundamental rights. See James B. Beam Distilling Co., 501 U.S. at 537-38, 548, see also Griffith, 479 U.S. at 322-23, Desist, 392 U.S. at 258-59.

Selective prospectivity is constitutionally permitted only where procedural or other considerations mitigate against applying new rules retroactively. Examples include: concerns for finality of judgments, see James B. Beam Distilling Co., 501 U.S. at 541-42, Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374 (1940); considerations about the functions of collateral review and the function of habeas corpus, see Teague v. Lane, 489 U.S. 288, 306-10 (1989); and concerns for respecting the rights of states to define their own procedural requirements. See James B. Beam Distilling Co., 501 U.S. at 544. In such cases, selective prospectivity is guided by fair and certain principles and is itself applied uniformly with an eye toward respecting the constitutional rights of the litigants before the court. See Teague, 489 U.S. at 310-16. In contrast, here nothing guides or restrains the use of selective prospectivity.

The Defendants set forth quotations from jurists and other scholars who have defended the Ninth Circuit Rules and other similar rules in other circuits presumably for the proposition that there

is a rational basis for the rules at issue. See Hon. Boyce F. Martin, Jr., "In Defense of Unpublished Opinions," 60 Ohio St. L.J. 177 (1995), Martha Dragich, "Will the Federal Courts of Appeals Perish If They Publish? Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat?" 44 Am. U. L. Rev. 757 (1995). Although the appropriate test to apply given the fundamental rights at issue is not the rational basis test, these very authorities and competing authorities can certainly support the proposition that the rules are very much irrational. For example, Judge Alex Kozinski and Judge Stephen Reinhardt, sitting judges of the Ninth Circuit, defended Rules 36-1 through 36-4 in a popular legal publication essentially on the grounds that the Ninth Circuit handles too many cases to actually assure that every litigant receives a disposition that is truly a "written, reasoned" disposition as required by Rule 36-1. "While a memdispo can often be prepared

in a few hours, an opinion generally takes many days (often weeks, sometimes months) of drafting, editing, polishing, revising. Frequently, this process brings to light new issues, calling for further research, which, in turn, may send the author back to square one." Hon. Alex Kozinski & Hon. Stephen Reinhardt, "Please Don't Cite This!" Cal. Lawyer 43, 44 (June 2000). Defendants cite this very article in support of their argument that a rational basis exists for the rules at issue. While the court may indeed be overworked and understaffed, each and every litigant before the Ninth Circuit is entitled to the same careful deliberation given every other litigant in the resolution of matters pending before the Ninth Circuit, particularly since careful research often calls "for further research, which, in turn, may send its author back to square one." Certainly every litigant is entitled to a potential change in the ultimate result of an action that can occur upon the careful research and consideration which these jurists point out may be absent in unpublished dispositions.

Moreover, as discussed above, numerous scholars who have studied unpublished dispositions directly contradict the contention of the judges who defend the non-publication/non-citation rules on the grounds that the substantive rights of litigants are unaffected. While members of the court no

doubt sincerely hope that each case is correctly decided on the merits regardless of whether the disposition is ultimately published, studies suggest that the results in unpublished dispositions are often substantively inferior. See, e.g., Comment, "Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals," 85 Calif. L.R. at 551-55; Kanner, "The Unpublished Opinions: Friend or Foe?" 48 Cal. St. B.J. 386; Reynolds & Richman, "The Non-Precedential Precedent -- Limited Publication and No-Citation Rules in the United States Courts of Appeals," 78 Colum. L. Rev. at 1192-94; Comment, "A Snake in the Path of the Law: The Seventh Circuit's Non-Publication Rule," 39 U. Pitt. L. Rev. 309; Gardner, "Ninth Circuit's Unpublished Opinions: Denial of Equal Justice?" 61 A.B.A. JU. 1224.

Most importantly, it should be noted that this is a motion to dismiss the Complaint on its face.

There is absolutely no evidence whatsoever before the Court regarding the actual rational used by the Ninth Circuit in adopting these rules or the reason that any such rules need to exist in the first instance. Even if the rational basis test were applicable to the Equal Protection aspects of this action, which it is not, this Court simply cannot rule on the face of the Complaint that the disputed rules do not violate individuals' Equal Protection.

4. Rules 36-1 Through 36-4 Violate Individuals' Freedom Of Speech By Imposing

A Prior Restraint On The Content Of Speech.

Defendants also contend that the disputed rules do not violate freedom of speech because they are comparable to mere limitations on a lawyer's ability to represent a particular client or practice in a particular court. Defendants cite no relevant authority and lose sight of the fact that the disputed rules restrict not only what a lawyer is allowed to say on behalf of a client, but also what is substantively spoken on behalf of litigants' matters pending before any court in the circuit. Defendants posit with no analysis whatsoever that Rule 36-3, which prohibits lawyers from citing unpublished dispositions before the Ninth Circuit, is "indisputedly content neutral." Contrary to Defendants' assertion, the rule is indeed a prior restraint on the content of speech where it matters most, i.e., in our system of justice.

The rule identifies particular speech content, i.e., unpublished "memoranda" of the court, which are defined as "written, reasoned" dispositions of the court, and restricts lawyers or litigants from citing or discussing those "memoranda" before the Ninth Circuit. The First Amendment protects against prior restraints on the content of speech. See Near v. Minnesota, 283 U.S. 697 (1931)(chief purpose of constitutional protection of liberty of press is to prevent previous restraints upon publication), Staub v. Baxley, 355 U.S. 313 (1958)(ordinance prohibiting solicitation of members for organization without a permit and making it discretionary with mayor and council as to whether to grant a permit is invalid as abridging freedom of speech), New York Times Co. v. United States, 403 U.S. 713 (1971)(government did not meet its burden of showing justification for imposition of restraint on publication of the contents of purportedly classified study).

The restraint on speech imposed by Rule 36-3 creates a system of utter arbitrariness, dictated by the sole discretion of the Ninth Circuit. Litigants can cite to almost anything as persuasive authority, including a law journal note of a brand new law student. Indeed, Defendants themselves cite numerous legal publications, historical writings, and magazine articles as persuasive authority, although these writings should surely be less persuasive than the "written, reasoned" dispositions of an appellate court. Defendants themselves even cite an unpublished opinion, Gomez v. Felker, 1997 WL 227950 at *1 (N.D. Cal. April 25, 1997), as persuasive authority in support of their motion before this Court. However, the only things that cannot be cited before the Ninth Circuit are their own prior "written, reasoned" dispositions that the Ninth Circuit, in its own discretion, deems as "memoranda."

Even if defendants are correct that this case falls within a category of speech restraints which are "content neutral," such as in the case of Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994), relied upon by Defendants in their motion to dismiss, such restraints remain impermissible unless they survive intermediate level scrutiny. Id.

Regardless of whether this Court ultimately finds on the merits that this is a content-based prior restraint or a mere content-neutral prior restraint, it cannot be determined on the face of the Complaint that the disputed rules do not violate freedom of speech, much less the right to petition for redress of grievances, which is not even addressed by Defendants in their motion. Until investigation and discovery are completed and sufficient evidence is properly before the Court, it cannot be determined what legitimate state interests the Ninth Circuit even contends are at issue, the level of harm to the public, or whether less intrusive means exist to protect the suggested governmental interests.

In any event, Defendants are clearly incorrect in suggesting that the First Amendment issues should be adjudicated through review of case authorities which involve an attorney's ability to represent a particular type of client in a particular type of litigation, or authorities regarding an attorney's right to remunerative employment. See Texas Rural Legal Aid, Inc. v. Legal Services Corp., 783 F. Supp. 1426, 1428-29 (D.D.C. 1992), Ohralik v. Ohio State Bar, 436 U.S. 447, 459 (1978). This is a case in which a court is imposing a prior restraint on what attorneys or litigants can say before the court, and such a promulgated rule must be subject to scrutiny on the merits once the purported interests and alternatives are known.

B. The Complaint Contains Sufficient Allegations In Support Of Plaintiff's Standing.

1. Plaintiff Has Alleged Injury-In-Fact Sufficient To Meet Article III Minimum

Standing Requirements.

In asserting that Plaintiff has no standing to bring this action, Defendants rely primarily upon Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 561 (1992), and its progeny. However, the allegations of the complaint meet the minimum threshold requirements espoused by the Supreme Court in Lujan, although plaintiff's injury is admittedly shared by others. In Lujan, the Supreme Court

held that the "irreducible constitutional minimum of standing" required by Article III has three elements: (1) the would-be plaintiff must have suffered an "injury in fact;" (2) plaintiff must establish a causal connection between alleged injury and the conduct challenged; and (3) plaintiff must show that the injury is likely to be redressed by a favorable decision. See Lujan, 504 U.S. at 560-61, see also Friends of the Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 886 (8th Cir.1995). Defendants challenge only the first element of the Lujan test in their motion, i.e., that Plaintiff has suffered no particularized injury. Pursuant to the analysis of Lujan, a would-be litigant meets the injury-in-fact requirement so long as Plaintiff alleges an "invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical...." Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted). Plaintiff meets this standard.

Plaintiff alleges that he is an attorney at law who regularly practices law in the courts of the Ninth Circuit. He alleges a clear, present, and substantial right to the performance of Defendants' duties. Importantly, Plaintiff expressly alleges that the harm he suffers continues daily and the challenged rules cause harm to numerous litigants, including Plaintiff. (Complaint, 8, 5:8-14.) Plaintiff alleges that his Constitutional rights guaranteed by the First and Fifth Amendments have been violated. In short, Plaintiff has expressly alleged invasion of legally protected interests which is concrete and actual. Although Defendants may ultimately contest the merits of these allegations, the allegations themselves are sufficient to overcome the motion to dismiss the Complaint on its face.

Courts have found Plaintiffs to meet constitutional standing requirements even though their injuries are shared by the general public. For example, in Sierra Club v. Morton, 405 U.S. 727, 734 (1972), plaintiff alleged injury of aesthetic interests such as observation and study of endangered animals and such injury was found to support Article III standing. Similarly, in Japan Whaling Ass'n v. American Cetacean Soc., 478 U.S. 221, 231 (1986), injury-in-fact was found because plaintiff whale watcher's interests were allegedly adversely affected by continued whale harvesting. See also Mausolf v. Babbitt, 85 F.3d 1295 (8th Cir. 1996), Friends of the Boundary Waters Wilderness, 53 F.3d at 886, Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir.1994), Branson School District RE-82 v. Romer, 958 F. Supp. 1501 (D.Colo. 1997).

Importantly, as the Lujan court recognized, the elements of standing are not "mere pleading requirements" but are an "indispensable part" of case. Lujan, 504 U.S. at 560. In each of the standing cases cited herein, as well as those cited by Defendants, standing was found to exist or not exist based upon affidavits submitted by the plaintiff(s) in opposition to summary judgment or at trial. Plaintiff Schmier must establish standing by evidentiary facts just as he must establish the material elements of his substantive claims. Courts analyze would-be litigants' standing based upon the evidence and affidavits those litigants may set forth. For example, in Price v. Akaka, 3 F.3d 1220, 1223-24 (9th Cir. 1993), the Court discussed the difference between actions challenging direct regulation of a plaintiff versus actions challenging third party regulation, explaining,

 

When the suit is one challenging the legality of government action or inaction, the nature and

extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue.

Price, 3 F.3d at 1223-24 (emphasis added.)

Defendants, however, seek a dismissal of the action on its face for lack of standing, and dismissal is not warranted because Plaintiff has expressly alleged invasion of legally protected interests that is actual and imminent as well as concrete. If Defendants' analysis were correct, the rules could not be challenged by anyone because there could be no possible allegations which could support standing. Schmier should be entitled to proceed with investigation and discovery and respond to a motion for summary judgment challenging his standing with appropriate affidavits and evidence at that time. In the alternative, Plaintiff should be granted leave to amend the Complaint.

2. The "Prudential Principle" Does Not Preclude Standing.

Although Defendants assert that Plaintiff fails to meet the prudential test for standing, Defendants fail to clearly define this test or set forth the precise manner in which the proferred test precludes Plaintiff's claims. Nonetheless, as Plaintiff understands the doctrine, the "prudential principle" is a general principle that courts should refrain "from adjudicating 'abstract questions of wide public significant' which amount to 'generalized grievances,' pervasively shared and most appropriated addressed in the representative branches." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 474-76 (1982). Defendants' discussion of this principle mistakenly suggests that a plaintiff may never complain of an injury widely shared by others. Defendants are incorrect.

Denial of citizen standing does not mean that standing always is denied when a plaintiff complains of an injury that is widely shared by many others. To the contrary, it has been ruled repeatedly that "standing is not to be denied simply because many people suffer the same injury," since "[t]o deny standing to persons who are in fact injured simply because many others are also injured would mean that the most injurious and widespread Government actions could be questioned by nobody."

Wright, Miller, Cooper, 13 Federal Practice and Procedure, Juris.2d 3531.10 (quoting United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 687-88 (1973)).

The question turns on the issue of injury. Here, Plaintiff alleges that he is a member of the Bar who practices before the courts in the Circuit and that he has suffered harm and continues to suffer harm as a result of the disputed rules, including violation of his Constitutional rights guaranteed by the First and Fifth Amendments. Upon allegation of particularized injury, standing is not lost merely because that injury is shared. See also Community Nutrition Institute v. Block, 698 F.2d 1239, 1261 (D.C. Cir. 1983), cert. granted 464 U.S. 991, judgment reversed 467 U.S. 340 ("the mere fact that injury may be shared by many consumers does not require us to dismiss this complaint on that ground"), Newman v. Graddick, 696 F.2d 796, 799-800 (11th Cir. 1983) (newspaper publisher suffered "distinct and palpable" injury in denial of access even though access right is shared by the general public), United States v. Cianfrani, 573 F.2d 835, 845-46 (3rd. Cir. 1978).

Plaintiff will ultimately be required to establish by affidavit and other evidence that he suffers a "distinct and palpable" injury, but allegations of such injury are certainly contained within the Complaint. The prudential principle does not negate Plaintiff's standing, or leave him with no remedy for his injuries, merely because such injuries are shared by others.

C. Plaintiff's Claims Are Ripe For Judicial Review.

Defendants assert that Plaintiff's action is not ripe for judicial review because Plaintiff has allegedly failed to set forth a "concrete fact pattern" in which the application of the challenged rules can be tested. However, the case authorities cited by Defendants are inapposite. This is not a situation in which the claims cannot be adjudicated because an administrative decision has not been formalized, leaving its effects unknown. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1965). Defendants themselves admit in their motion that the challenged rules are plainly "final action" by the Ninth Circuit. Similarly, the "critical elements" of plaintiff's claims are not "contingent or unknown," as in the cases of Marusic Liquors, Inc. v. Daley, 55 F.3d 258, 260 (7th

Cir. 1995) and Oriential Health Spa v. City of Ft. Wayne, 864 F.2d 486, 489 (7th Cir. 1989), also relied upon by Defendants in their motion. Defendants attack the ripeness of the action on the grounds that its factual contours are unknown even though the action has proceeded no further than service of the Complaint.

Plaintiff expressly alleges existing and continuing harm resulting from rules of the Ninth Circuit, and that court admits those rules are "final." Rule 8 of the Federal Rules of Civil Procedure sets forth the pleading requirements in federal actions, and those requirements are minimal. Plaintiff must merely set forth (1) a short and plain statement of jurisdictional grounds, (2) a short and plain statement of the claim, and (3) a demand for judgment for the relief sought. Here, although they do not so specify, Defendants presumably attack the Complaint on the grounds that it fails to set forth a "short and plain statement of the claim." To the contrary, the Complaint alleges that rules of Court were established, that those rules harm plaintiff in his practice of law as well as his interests in knowing the law of the Circuit, and that Plaintiff requests relief. The Complaint further sets forth the precise manner in which those rules violate the Constitution.

If Defendant's analysis of ripeness standards were correct, then notice pleading in federal

court would never be sufficient because plaintiffs would be required to set forth a detailed factual statement in support of each and every claim so that a defendant would know upon service of the complaint the full factual basis of the action. It is curious that Defendants assert that the action cannot be ripe because it requires adjudication "in a factual vacuum," yet Defendants then proceed to argue the merits of the action in the very same motion challenging ripeness. As Defendants' own briefing recognizes, "[P]ure legal questions that require little factual development are more likely to be ripe." Defendants' Motion to Dismiss Complaint, 9:7-8 (citing Abbott Laboratories, 387 U.S. at 149, and Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1434-35 (9th Cir. 1996)). Although certain factual development is indeed necessary to adjudicate the claims, such as the governmental interests the Ninth Circuit contends are at issue, pure legal questions certainly predominate the action.

It appears that Defendants merely extend their attack on Plaintiff's standing into an improper challenge of the ripeness of the action as well. Plaintiff has set forth a short and plain statement of the claim, and that claim challenges the constitutionality of rules Defendants admit constitute final administrative action. Defendants' attack on ripeness is improper. Factual development of the claim should properly occur during the discovery phase; dismissal at this time is not proper.

D. This Court Has Jurisdiction To Adjudicate The Claims And Issue The Relief Sought.

This Court has jurisdiction pursuant to the authority of Article III, Section 2, and 28 U.S.C.A. 1331 because the action arises under the United States Constitution and federal law. Defendants do not directly contest federal question jurisdiction pursuant to 1331, but instead argue that this Court has no authority to issue either a Writ of Mandate or a Writ of Prohibition against Defendants because (1) the Ninth Circuit is not inferior to this Court and (2) because Plaintiff cannot establish the requirements for issuance of either writ. Defendants' concerns are misplaced, and their authorities are inapposite.

Defendants' first challenge to this Court's jurisdiction and authority to issue the desired relief rests on the contention that no court may issue injunctive relief against another court that is not its inferior. That contention is incorrect, and the authorities relied upon by Defendants are inapposite. The decisions relied upon by Defendants -- Mullis v. U.S. Bankruptcy Court, 828 F.2d 1385, 1393 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988), Gomez v. Felker, 1997 WL 227950 at *1 (N.D. Cal. April 25, 1997), Panko v. Rodak, 606 F.2d 168, 171 n.6 (7th Cir. 1979), cert. denied 444 U.S. 1081 (1980), and Nolan v. Judicial Council of the Third Circuit, 346 F. Supp. 500, 512-13 (D. N.J. 1972), aff'd, 481 F.2d 41, 42 (3rd Cir. 1973) -- simply do not stand for the proposition, directly or indirectly, that one court cannot review the local rules of another court and issue an injunction should

the rules of the other court be unconstitutional. Instead, each of these cases stands for the uncontested proposition that parties cannot "horizontally appeal" a result in one court to another seeking injunctive relief from a decision the party contests. This is not the basis of the instant action, and it is not the relief Plaintiff here seeks.

Plaintiff does not appear in this Court seeking an injunction to free himself from the unhappy results of related litigation in another forum. Rather, plaintiff challenges the constitutionality of rules promulgated by the Ninth Circuit in its administrative capacity which plaintiff alleges have damaged him and others. Such an action commences in the District Court. See, e.g., Frazier, 482 U.S. 641, Whitehouse v. United States District Court, 53 F.3d 1349.

Interestingly, the position taken by Defendants is similar to that posed by the dissenters -- and rejected by the majority -- in Frazier v. Heebe. In Frazier, an attorney filed an action in the United States District Court for the Eastern District of Louisiana challenging the constitutionality of local district court rules pertaining to admission of nonresident attorneys to the court's bar. The court found its own rules constitutional, and that finding was affirmed by the United States Court of Appeals for the Fifth Circuit. The Supreme Court granted certiorari and ultimately reversed the

lower court rulings, holding that the disputed local rules were unnecessary and irrational. Chief Justice Rehnquist authored a dissenting opinion, joined by Justices O'Connor and Scalia, in which the dissenting justices argued that the Supreme Court does not have a "supervisory power" over rules adopted by lower courts in accordance with the rulemaking authority of district courts. However, that position was rejected by the majority, and the Supreme Court found it did have the authority to review the lower court rules based upon this "supervisory power." Even the dissenters appear to recognize the majority holding that so long as a local rule conflicts with federal or constitutional law, the court which promulgated the rule exceeded its authority. See 28 U.S.C. 1654, 2071; Fed. Rul Civ. Proc. 83. The issue raised by the dissenters was only an issue because the Supreme Court

invalidated the local rule because it was "unnecessary and irrational" and not because it was in conflict with law. At no point in the majority opinion -- premised upon a suit challenging a local rule, which was brought in the district court which promulgated the rule -- did the Court hold or even imply that no action may lie in one court challenging the constitutionality of another court's local rule.

Similarly, in Whitehouse v. United States District Court, 53 F.3d 1349 (1st Dist. 1995), the plaintiff challenged a district court rule as well as a rule of the Rhode Island Supreme Court. First, the plaintiff (federal prosecutors) filed a petition in the circuit court. The First Circuit
Court of Appeals dismissed the petition, stating that the proper method for mounting a facial challenge to the validity of the local rule was through an action for declaratory or injunctive relief in the district court. The plaintiffs then brought action in the federal district court against the district court and the Rhode Island Supreme Court challenging the constitutionality of the state and federal rules. Plaintiff sought an injunction to prevent both entities from enforcing their respective rules. Although the First Circuit ultimately found the disputed local rule to be constitutional, and therefore within the rule-making authority of the courts in question, the decision supports that an action can lie in the district court to enjoin enforcement of local rules on constitutional grounds, and the decision does not include the limitation now sought by Defendants.

If Defendants' analysis were correct that a district court possesses no jurisdiction to adjudicate the constitutionality of an appellate court's promulgated rules, then any and all local rules of a Circuit Court of Appeals would be immune from action no matter how unconstitutional because no forum would exist for initiating a facial challenge. In Frazier, in attempting to challenge the rule of the United State District Court, the plaintiff first filed a Petition for a Writ of Prohibition in the United States Court of Appeals. The Court of Appeals for the Fifth Circuit remanded the case to the district court for appropriate proceedings so that an appealable judgment would result which would even permit the Circuit Court to review the matter. Similarly here, Defendants would deny plaintiff any opportunity whatsoever to seek judicial review of the disputed rules.

Defendants also contend that even if this Court has jurisdiction to review the rules promulgated by the Ninth Circuit, no relief may be granted as a matter of law because plaintiff cannot establish the necessary showing in support of a Writ of Mandate. Defendants argue that a Writ of Mandate can only issue in "exceptional circumstances," see City of Las Vegas v. Foley, 747 F.2d 1294, 1296 (9th Cir. 1984), and Mandamus is only available when (1) plaintiff's claim is clear and certain, (2) the duty at issue is ministerial, and (3) no other remedy is available. See Barron v. Reich, 13 F.3d 1370, 1374 (9th Cir. 1994)(quoting Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986)).

Defendant's primary contention is that plaintiff cannot obtain a Writ of Mandate because the right to relief is not "clear and certain." Defendants' analysis is circular. Defendants essentially argue that this Court should not even consider the merits of the action on threshold procedural grounds because Plaintiff cannot ultimately prevail on the merits of the action.

Plaintiff should not be required to establish clear likelihood of success on the merits on the face of the pleading alone, which is now challenged on a motion to dismiss for failure to state a

claim. However, as set forth above in discussion of the ultimate merits of the action, Plaintiff certainly can establish that the right to relief is "clear and certain" on Article III grounds alone, although the challenges based upon the First and Fifth Amendments cannot be measured on the face of the Complaint because such determinations involving balancing of factors based upon evidence not before the Court at this time.

Although simply dismissed by Defendants in a footnote as irrelevant (Motion to Dismiss, p. 13 n. 8), courts have routinely found that unpublished dispositions are precedent as a matter of constitutional law since Anastasoff, 223 F.3d at 899-900, was issued. See, e.g., Goldman, 228 F.3d 942, In Re Arzt, 252 B.R. at 143, Luciano, 2000 WL 1597771 at *1.

If the Ninth Circuit's disputed rules regarding the distinction between "written, reasoned" Opinions and "written, reasoned" Memoranda, and their respective precedential value, are unconstitutional, then it is a purely "ministerial," or procedural, act to certify every "written, reasoned" disposition for publication as equal precedent. See Patel by Patel v. McIntyre, 667 F.Supp. 1131 (D.S.C. 1987)(duty is ministerial when it is absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts).

Jurisdiction exists because this is a case of federal question. This Court has the jurisdiction as well as the authority to issue the relief requested.

IV. CONCLUSION

For the foregoing reasons, Plaintiff/Petitioner respectfully requests that the motion to dismiss be denied, or, in the alternative, plaintiff be granted leave of Court to amend the Complaint to state additional facts. Ninth Circuit Rules 36-1 through 36-4 create a system of selective prospectivity and are unconstitutional. Plaintiff is entitled to relief. As Justice Scalia wrote in his concurring opinion in James B. Beam Distilling Co.,

I would no more say that what [Justice Souter] calls "selective prospectivity" is impermissible because it produces inequitable results than I would say that the coercion of confessions is impermissible for that reason. I believe that the one, like the other, is impermissible simply because it is not allowed by the Constitution. Deciding between a constitutional course and an unconstitutional one does not pose a question of choice of law.

James B. Beam Distilling Co., 501 U.S. at 548 (Scalia, J., concurring).

Respectfully Submitted,

KENNETH J. SCHMIER

Attorney at Law

 

 

Date: February 22, 2000 By:__________________________________

Paul W. Thorndal, Esq.

Counsel of Record for Plaintiff/Petitioner

MICHAEL SCHMIER