Twenty Questions regarding No Citation Rules by Ken Schmier
1. How can equal protection of law be obtained where courts have no citeable institutional memory of the manner in which the law is applied in similar cases?
2. How can our courts learn from the mistakes of others, or keep abreast of changing conditions in the community generally, absent citeable decisions?
3. To what effect is the doctrine of equal protection of the law if law can be applied to an individual without immediately causing others potentially affected by citeable precedent to complain on that individual's behalf when the rule is unconstitutional, illegal or unjust?
4. Does the doctrine of stare decisis become totally inoperative only when our courts refuse to allow citation of 100% of appellate opinions, or is it made inoperative when any decision of a highest court of appeal of right is made unciteable?
5. Do no-citation rules constitute a content-based prior restraint upon freedom of speech?
6. Are unciteable decisions selectively prospective?
7. By what mechanism is the Rule of Law to be invoked to control the caprice of judges if judges can make decisions that by law cannot ever be applied to anyone else?
8. How can the people govern themselves if the manner in which law is applied to individuals is not reported back to the people for correction?
9. Is it just that a criminal defendant be prevented from informing a court that an appellate court decision exists that would - or even might- exonerate?
10. How can individuals be presumed to know the law if court decisions are not published?
11. Of what certain effect is the bringing of a test case if the judiciary retains the option to defeat its use as citeable precedent?
12. Does the practice of deleting fact statements from appellate decisions make error and inconsistency in unpublished decisions impossible for court watchers to detect?
13. In the absence of citeability, what incentivizes court watchers to examine unpublished opinions for new learning or identification of trial and appellate error?
14. Is the logical outcome of ratiocination – rational thinking – impaired when 94% of precedent ratios are hidden from consideration?
15. How are the various organizations of the public - i.e. Law Schools, Community Organizations, Industry Organizations, Academics, Politicians, Journalists and Commentators, etc, motivated to review unpublished opinions or join in a call for review when the questioned opinion is unciteable and not law for the general community? What law exists to be discussed with or changed by a legislator?
16. What warranty of correctness is conveyed to the burdened litigant when an appellate court decision does not become part of the law for all?
17. Where an unciteable decision announces rules of law without citation of existing authority and/or states rules of law that deviate from the common understanding of the law, should a request for rehearing be denied only if the court is willing to make the decision citeable as law for all? Does a court’s refusal to make such “new” rules of law applicable to all justify a litigant in suspecting denial of equal protection, corruption, or tyranny?
18. If appellate court judges have not the time or other resources to do their jobs properly should they not object publicly so as to gain the public’s careful consideration of degradation of service provided to it, rather than quietly deviating from the manner of court operation taught in civics classes?
19. If no citation rules are justified by workloads necessitating triage, when will normal judicial operating practices be restored?
20. If we do not insist that known precedent be followed, distinguished or overruled, in the context of citeable opinions, how do we build a system of ever improving institutional intelligence which can be accessed and improved by the entire community? What will tie our legal learning together if not a system of citation?