Mr. Chairman:

Thank you for the opportunity to draw to the attention of this Subcommittee that the law of precedents, referred to as stare decisis, a fundamental element of the rule of law, has been rendered ineffective.

This is so because the vast majority of our appellate court determinations are now made in unpublished, unciteable, nonprecedential, decisions, but would be equally true if only a fraction of one percent of decisions were allowed to be so made. The choice to make decisions in this manner rests entirely with the panels that make them. There now exist vast expanses in which lawless decisions may rest without notice. This has led to inconsistent resolution of cases in many instances and renders our “System”, once at least theoretically perfect, unreliable. We ask that this committee restore the law of precedents to its proper operation for the protection of all.

We maintain a Website, http://www.nonpublication.com/, which is a compendium of information on this subject.

One can only wonder why our free press has not brought this troubling change of judicial accountability to the attention of the American people.

From school children to Congress, to former Attorneys General, our citizenry are under the impression that all decisions of the appellate court become citeable precedents in other cases, and that the future effect of bad precedent is a strict control upon the discretion of judges. Our citizens are uniformly unaware of unpublished, unciteable opinions and the consequences to our democracy of allowing such practices to continue.

These citizens are incredulous that a “no citation rule” could possibly exist in America, or even that an appellate court of any kind could make a decision that is removed from the chain of precedents. That some of our appellate courts decide over 90% of their cases in this manner seems to them outrageous, as it should. Legal scholars, judges, lawyers, and citizens echo their outrage. How, after all, can it possibly be that a criminal defendant could be forbidden to cite an appellate decision that would exonerate?

Civics classes across the country teach our precedential system of common law, and the importance of the test case for the redress of grievances. The test case is a method of forcing a resolution of an issue for all see, be bound, and therefore concerned. But how does this mechanism work when appellate courts are free to decide test cases in unciteable and unpublished decisions applicable to no one but the parties?

When opinions are citeable we must all be concerned about their effect upon the status of our law, not because of its justice to others, but because any change potentially affects us as well.

Due Process and Freedom of Speech allow us to insist upon equal treatment. No-citation rules and unpublished opinions gut the salutary power of these doctrines and make it impossible for individuals to argue past judicial resolutions to gain equal treatment in our courts, and sedate similarly situated political constituencies to be unconcerned about injustices or error.

Moreover, these same rules make it impossible for our people to govern themselves. Our government must have a self-regulating cycle. The cycle is this: We elect representatives who make our laws, the laws are applied to us individually by our courts, through the mechanism of published opinions we are able to see how our laws are actually being applied, and because we are concerned for the establishment of precedent, various groups of citizens study our court decisions. These groups of citizens foment for change where required and cause us to demand of our representatives certain actions. If our representatives refuse to accommodate us, we may then replace them. That process is severed when the application of law is not reported back to the citizens as legal precedent. In short, unless all cases are precedent, each of us stands alone, without recourse, before the enormous and unaccountable power of the judiciary, with no real mechanism for correcting our law.

My family’s experience in the courts of California, which have no-citation and non-publication rules exactly analogous to that of the 9^th Circuit is exemplary of the kind of harm now experienced by litigants all over our country.

We appealed a contractual matter determined pursuant to obvious misstatements of contract law. The presiding judge of the appellate court took the case off calendar two days before oral argument and kept it off calendar for five months. That judge then wrote the decision for the court, and marked it “Not to Be Published in the Official Reports”, meaning under California Rule 977 that the decision is not to be cited or relied upon in any other case. The decision rested upon many errors including numerous unrecognizable principles of law unsupported by any cites of authority, the correction of any one of which would force a different result. We petitioned the court for rehearing to correct error, or in the alternative, for the publication of the case to make it law for all, reasoning that the rules of law it contained would turn the contract law of California upside down and require the California Supreme Court to act.

The appellate court refused to correct the errors, and also refused to make its decision law for all, leaving us losing $700,000 according to statements of law unique for us and forbidden to be used to resolve any other case. Our petitions to the California and U.S. Supreme courts asking how we could be the subjects of law uniquely made for us were denied.

We believe the result determined by the California Court of Appeal in our case could not possibly have been the same were that decision written with knowledge that it would be citeable in other cases. We believe we were deprived of justice under law because the non-publication and no-citation rules combined to allow the judges to free themselves of the rule of law, and make rules that cannot possibly affect the public generally.

Despite the vast departures from law, our attempts to interest the press were futile. Had the decision been published as law for all, we would have been able to cry “look what they did to contract law” and enlist the support of all concerned about contract law. But because the decision was not law for all, we could say only, “look what they did to us”. That cry went unheard.

The entire record of this case is available at www.nonpublication.com for those wishing to confirm our allegations.

A close friend was involved in another litigation matter in which three parties spent over $3,000,000 in attorneys’ fees attempting to get an answer to a simple, but unprecedented, issue of landlord tenant law. In the end, an appellate court opinion resolved the issue, but its twenty five-page opinion is unpublished and unciteable, assuring that similarly situated parties will have to undergo the same expense and frustration attempting to get the same answer.

Six years of litigation and a year’s effort of the appellate court will bring no enlightenment whatsoever to future litigants. Instead of citizens being able to peacefully resolve such a dispute by known principles developed by common law processes and recorded in official reports of the courts, citizens facing the same issues will have to repeat the same wasteful process and friends will be turned to bitter foes. It is hard for us to see the efficiency the court claims in such a process.

Perhaps the plight of E.J. Ekdahl, a prisoner at San Quentin, California is more pathetic.

According to his letter, Mr. Ekdahl obtained a writ of habeas corpus from a Superior Court ordering the California Board of Prison Terms to set a parole hearing for him in 90 days or for the prison system to release him. The appellate court reversed in an unciteable unpublished opinion ignoring the valid statutory principles relied upon by the Superior Court. Query: where an appellate court reverses a trial court can it be said the case is routine? If the appellate court’s decision is not published and cannot be cited, what chance does Mr. Ekdahl stand of attracting attention to his case, even if it embodies the grossest of injustices? Can he ever hope for a time when some other appellate court would be forced to overrule his case, forcing reconsideration of his rights? He cannot. His case is outside the system of precedents, and there is no systemic method of ever discovering any injustice to him.

In Sorchini v. City of Covina, USCA 9^th, Judge Kozinski established the law of the 9^th Circuit as “binding precedent” finding a violation of court rules by counsel’s cite of an unpublished opinion directly relieving her client of liability:

 “The only way Kish could help counsel’s argument is prohibited by Ninth Circuit Rule 36-3 – by persuading us to rule in the City’s favor because an earlier panel of our court had ruled the same way.”

There is more in this opinion to concern us than the end of the doctrine of stare decisis and freedom of speech to argue law in a court of law. Kozinski excuses counsel’s conduct because the Kish court violated the 9^th Circuit’s General Order 4.3.a. prohibiting panels from discussing the facts of the case being decided in unpublished opinions, an order that also makes it impossible for court watchers to determine whether the circuit is consistent in its application of law.

Worse still, Kozinski finds this excuse valid only in this case, citing Bush v. Gore as authority to make rules of ephemeral application. The humor of this may be lost on future generations, but what is certain to survive is a combination of authority that judges are absolutely free to make decisions that do not create precedent, that they are required to ignore all cases marked unpublished no matter how relevant, and that they are free to make law of ephemeral application. It seems to us that such a combination of authority establishes the end of the rule of law in the 9^th Circuit.

The Sorchini Court resolved whether the police could be liable for dog bite injury to an escaping arrestee where the police did not announce release of the dog. But the court withheld its resolution of this issue from its published decision regarding violation of no citation rules, and decided that portion in an unpublished decision. Therefore, notwithstanding that the 9^th Circuit has now resolved that issue twice, in Kish and again in Sorchini, there exists no citeable authority from which the police may determine a legal course of conduct, nor any precedent to deter litigation by others. We cannot see any efficiency gained by this process.

In Symbol Technologies v. Lemelson Medical, USCA Fed 00-1583 (2002) the Federal Circuit “decline(d) to consider the nonprecedential cases cited by Lemelson.”, considering only the published authorities despite the argument that unpublished decisions compelled a different result. Query: In face of such a divergence in the law between unpublished and published opinions, how are lawyers to advise clients regarding law? Shall lawyers’ advice reflect what our courts publicly state is the law, or the law they actually apply in the vast majority of cases that go unpublished? Without a universal process of reconciliation how can we have one law for all? In circuits that do not provide unpublished cases to legal research services, how is anyone to even know how that court is actually resolving a given issue?

Judges tell us that the increase in the number of opinions would impose a burden upon attorneys researching a point of law. But how can a rule, which deprives a criminal or civil defendant of the right to cite a known appellate decision that would exonerate him be said to benefit that defendant?

In Re Machiko Kamiyama, Cal.App.4^th, Div. 3, G022140 (1998) a California appellate court resolved a habeas corpus petition. A woman had spent three months in prison because she left her eight-year-old child at home, in a gated community, without a sitter, while she went to work. The court expressly recognized that there was no California case on point, and despite a dissenting opinion, resolved the case in an unpublished, unciteable opinion. We ask, what institution is to resolve the law for us if it is not the appellate court? How can we reference this case if it is not published and indexed? It happens the court determined that whether good parenting or bad, having latch key children is not criminal, for to make that the law would make millions of parents criminals. Yet despite this resolution, neither police, nor social workers nor parents can have any idea what the law is, because a trial judge convicted, and the reversal is unpublished and unciteable. Are we citizens to live forever under the tyranny of doubt as to what of our actions may result in criminal liability? Absent a published opinion, what systemic mechanism of our democracy brings the need for debate of a narrow legal issue to the body politic? How will legal thought, experience, outcome, and knowledge be preserved and brought to wisdom without some method of preserving our past attempts at justice?

More importantly, consider the loss of protection to Ms. Kamiyama had her conviction been sustained in an unpublished opinion. The public would not have cared because it was not law for all. But had the same decision become law for all, government would have received millions of calls from similarly situated parents wondering what to do.

Even ignoring computerized research techniques and their astounding ability to isolate relevant precedents, limiting the number of cases a litigant or his attorney can sift through can only have the effect of denying that litigant the opportunity to argue for some measure of equal protection of the law. Moreover, can it possibly be argued that preventing the mention of 90% or so of our body of common law, while permitting mention of virtually every other repository of knowledge in our courts of law, does not constitute a presumptively unconstitutional content based restriction on the right of free speech where it matters most – in the forums where our law is considered and applied to us as individuals?

In respect of our memory of our father, who was a prosecutor and later a professor of law, and all of those who have sacrificed for the American concept of Equal Justice under Law, we have endeavored to force the judiciary to face the many unanswerable questions raised by no-citation, non-publication rules. We have litigated the issue in Schmier v. Jennings, Schmier v. Supreme Court of California, Schmier v. United States Court of Appeals for the 9^th Circuit, and Schmier v. United State Court of Appeals for the 11^th Circuit (Records available at www.nonpublication.com). In all of this litigation, and at all levels of the judicial system, we have never been able to obtain answers to the issues raised. Rather, the matters have always been dismissed for want of standing.

This has left us wondering if as attorneys and citizens, we have a duty, if not standing, to challenge a systemic constitutional violation broadly implemented by the judiciary itself, that deprives the people of fundamental constitutional protections, or whether the law requires us to remain silent until such time as that rule creates an obviously unjust result to ourselves rather than others. We think history teaches us that ignoring systemic injustice in the bud is foolish.

Moreover, we believe that because the courts are entrusted with the duty to protect the constitutional rights of the people, the judiciary has the duty of a trustee to candidly answer questions regarding the propriety of rules like Court Rule 36-3 forthrightly and without evasion. Yet Schmier v. USCA 9^th and Schmier v. USCA 11^th refused to do so. The USCA 11^th even refused to publish its decision or provide it to WestLaw, assuring, as best it was able, that court watchers would not even know that its practices have been questioned.

On April 2, of 2001 I sent a letter to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. That letter is attached hereto. I raised twenty questions regarding no-citation rules and unpublished opinions. The judges of that committee have never answered those questions.

The Subcommittee should be aware that files of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States contain many letters from chief circuit judges weighing in on this issue: Federal Circuit Chief Judge Haldane Robert Mayer wrote “Each court should be allowed to decide for itself the circumstances under which nonprecedential opinions may be cited.” Similarly, 3^rd Circuit Chief Judge Edward R. Becker wrote “the criteria for determining when an opinion should be legended ‘not precedential’ should be a matter for the respective Courts of Appeals” and that what opinions should be citeable “should be a matter for the Courts of Appeals IOP’s, if at all”. Circuit Judge Wilfred Feinberg of the 2^nd Circuit wrote; “ I also feel that any attempt to specify uniform, national criteria for “unpublished” opinionswould be unwise.” 2^nd Circuit Chief Judge Ralph K. Winter wrote “the FRAP should not attempt to specify uniform standards regarding unpublished opinions. There is no correct set of standards writ in stone, and the present diversity of practice allows each court to choose those standards it deems most appropriate.” 7^th Circuit Chief Judge Richard A. Posner wrote “ I do think it is useful –very useful- to have a category of unpublished opinions, provided it is understood that such opinions cannot be cited. I do not think written criteria for when to publish an opinion are useful or even feasible. I think it should be left to the judgment of the panel.”

Perhaps 4^th Circuit Chief Judge J. Harvie Wilkinson III summed up the judges position best, “there might be some advantage simply in leaving the subject alone.”

We think demand for unlimited access to a mechanism allowing the trumping of the rule of law is inconsistent with American notions of limits on the exercise of power by any government official. To us, admissions that the use of unpublished unciteable opinions cannot be subjected to articulable legal principles constitute an admission that the activity itself is lawless.

In Schmier v. USCA 9^th, the USCA 9^th stated that “Schmier will have to press his concerns about unpublished opinions  to the Congress”, perhaps anticipating that the difficulty of doing so would daunt us. We are here to do just that.

We ask you to recognize this as a point in history where the Congress must exercise its power of checks and balances or, as representatives of the people, knowingly yield the manifest protections of the law of precedents held by the people as protection from otherwise unfettered power of the judiciary. We ask you to consider as a warning Barbara Tuchman’s book, The March of Folly, which carefully recounts how numerous civilizations have destroyed themselves by doing things they knew were wrong at the time, justifying their actions by an anticipated, if unproven, expediency.

Our hope is that as part of the consideration of this matter the Subcommittee on the Courts can obtain the answers to the questions we could not obtain in our litigations with the judicial system or our inquiry of the Committee on Rules of Practice and Procedure.

Before I close, let me be clear on what we think should be the rule. Precedent means simply, “that which was allowed before”. Therefore, all decisions of cases are precedent as a matter of historical fact. That does not mean precedents must be followed. It means that relevant precedents must be considered, then followed, distinguished or overruled.

All cases should be decided by written decisions carefully written to explain who won and why, considering facts and the weight of all conflicting legal principles no matter how complex. Opinions should teach the parties and the public the appropriate law to be used in all factually similar cases, and explain why conflicting arguments and precedents are rejected. No working hypothesis of result should harden into a final result until it has survived thorough scrutiny by at least three well-trained and experienced minds considering legal argument and precedents that bring to bear the benefit of historical experience. All decisions must carry the warranty that they are decided by legal principles, right or wrong, that have been equally applicable to all similarly situated in the past, or will be for the foreseeable future. That warranty only becomes implicit when each decision becomes a part of the law itself.

This substantial effort is required so that all who submit their conflicts to the peaceful judicial processes may be assured of the utmost judicial care, infinitely respectful of each individual, which is the essential promise of our democracy. This methodology implements G-d’s law, assuring all that we will not do unto anyone that which we would not do to ourselves if similarly situated.

In every case, courts should consider all relevant precedents brought to their attention or known to them, and should accord them weight according to the stature of the issuing court and respectful of the doctrine of stare decisis, yet free to follow, distinguish or overrule the dictates of any case as articulable reason supports as proper for that instant case, and all future cases of similar nature. In this way our system of citation indexes our legal knowledge so that, like the scientific method it inculcates, our legal knowledge tends always toward predictability, reconciliation, and improvement.

The concept of binding precedent, offered by Judge Kozinski as a reason all cases may not be precedent, must be ended because the institutional resistance the requisite of en banc hearing places upon the correction of error and improvement in our law is too extreme. As was written by Judge Kozinski in Hart v. Massanari, “Because they are so cumbersome, en banc procedures are seldom used merely to correct the errors of individual panels”. Error should never be perpetuated simply for the convenience of the court. Democracy places no faith in univocalism as a device for finding or asserting truth. Rather, democracy expects to find ever-improving truth in a consensus of free speaking individuals.

The concept of binding precedent or law of the circuit must be ended in favor of the independence of panels, each subject to the flexible doctrine of stare decisis, so that controversy and inconsistency can draw enlightenment and recognition of noble truths. Moreover, our legal system should encourage citizens to find safe harbor in conduct that can be viewed as right from all perspectives, rather than encourage the nefarious to seek safe harbor in the precise language of one panel’s “binding precedent”.

Our Official Reports, which may be online and not in books, should include all appellate decisions. Each of these decisions should be indexed and made available for study by our entire community, and particularly its law schools and representatives, so that our judges are encouraged by the possibility of public and peer review, immediately or years in the future, to strive for that decision that stands as right from all perspectives. Also in this way our laws may be improved by criticism, reconciliation, and change, and our entire society can be involved in both learning and perfecting out law, and keeping our judges and our judicial system on track. All relevant decisions should be citeable to, and may be relied upon by any court, so that our law can, at least theoretically, be said to be equally applied to all.

Americans are the most productive people in the world. We are justice-loving people. We wage war only to protect our ideas of justice. Our government has no higher duty than to provide us equal justice under law, nor do we deserve any lesser standard in our own courts than careful decisions respectful of each individual citizen and the law, no matter what the cost.

President Kennedy pledged for us: "we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, to assure the survival and the success of liberty". These noble words pledge us to meet the cost – if there actually is proof that a cost will be required.

The job of the judiciary is to provide the discipline of ideals to our system. They must tell us what is needed to do the job right, and if they cannot get our attention, then they must refuse to do the job wrong, at least until we affirmatively order a new method.

What the judiciary may not do, and must not be allowed to do, is to remove from us the protection of the rule of law without engaging our attention and careful consideration of the protections we surrender, and the existence and extent of the expediency promised to us in exchange.

Moreover, we should be allowed to offer alternative methods for correcting the real logistical problems facing the courts. For example, careful consideration might reveal that the flood criminal appeals swamping our appellate courts might be triaged more effectively for all concerned if court appointed attorneys were paid substantial success fees for successful appeals, rather than minimal retainers to mass file appeals.

We ask the Congress to draw wide attention to this matter, so that the public may fully appreciate the protections of liberty it has already lost, to recognize how easily it could lose its liberty entirely through laxness, and may insist upon restoration of stare decisis to its proper function in the processes of our judiciary.

Respectfully submitted,

Kenneth J. Schmier

Chairman

Committee for the Rule of Law

Attachments:

Publish or Perish: Ken Schmiers Response to Please Don’t Cite This! By Judges Alex Kozinski and Stephen Reinhardt

The Binding Precedent Error: Schmier’s Response to Hart v. Massanari

Letter of San Quentin Inmate E.J. Ekdahl.

Justice in the Dark, by Brigid McMenimin, Forbes Magazine