June 1, 2016: The Supreme Court of California has announced that it has amended the California Rules of Court to eliminate the automatic "depublishing" of appellate opinions upon granting review. A news release can be viewed here, and click here to see the changes in the rule.
January 26, 2016: The courts have posted all public comments on Supreme Court Proposal to Amend Cal. Rules of Court, rules 8.1105 and 8.1115. Archived locally here.
December 11, 2015: Please find here the letter sent by The Committee for the Rule of Law to current Speaker of the California State Assembly Toni G. Atkins (District 78) regarding a request to author a new bill related to nonpublication.
December 7, 2015: The Judicial Council of California conducted a Legislative Briefing on Unpublished Opinions in the State Capital today. Here is a copy of the agenda.
December 5, 2015: Please find here the letter sent by The Committee for the Rule of Law to new Speaker of the California State Assembly Anthony Rendon (District 63) regarding a request to author a new bill related to nonpublication.
October 9, 2015: Please find here the letter sent by The Committee for the Rule of Law to California Chief Justice Tani G. Cantil-Sakauye in response to the invitation to comment regarding publication of appellate opinions.
September 1, 2015: The deadline for comments regarding the rule changes being considered by the California Supreme Court has been extended two weeks to October 9, 2015 5:00 PM (Pacific). Also, please find here a formal Invitation to Comment, summary of potential rule changes and important background information. Finally, the Court has provided links to relevant background documents on its website, and also archived here.
July 29, 2015: The California Supreme Court considering changes to a rule automatically depublishing Court of Appeal opinions when the Supreme Court grants review. The Invitation to Comment deadline is Friday, September 25, 2015. Please click here to submit comment.
July 20, 2015: The Committee for the Rule of Law has written a letter to the California Supreme Court regarding its opposition to Depublication and No-Citation Rules in the context of Capistrano Taxpayers Association, Inc. v. City of San Juan Capistrano (G048969; S226906), and others.
January 19, 2012: 2012 Legislative Counsel bill language proposed to be carried in the 2012 session of the California Legislature (Legislative Counsel file number(s): 98940 01/18/12 02:29PM RN 12 00612) is at: www.nonpublication.com/bill2012.pdf).
January 17, 2012: Please see the August 9, 2011 letter from California State Assemblymember Jared Huffman to Chief Justice of the California Supreme Court Tani Cantil-Sakauye requesting her support for citation of unpublished opinions, and the October 18, 2011 reply from the Principal Attorney (Beth J. Jay) to the Chief Justice. This reply from the Chief Justice cited and attached an article praising FRAP 32.1 and additionally calling for further reforms by Professor David Cleveland which appeared in a 2010 volume of the Journal of Appellate Procedure and Process: Local Rules in the Wake of Federal Rule of Appellate Procedure 32.1.
January 24, 2011: 2011 Legislative Counsel bill language proposed to be carried in the 2011 session of the
California Legislature (Legislative Counsel file number(s): 28206 01/07/11
06:23PM RN 11 01461) is at: www.nonpublication.com/
October 31, 2010: Please see California Supreme Court Chief Justice Tani Cantil-Sakayue’s (and Supreme Court Justices Ming Chin and Carlos Moreno) October 2010 pre-election correspondence, refusing requests for reasons and explanations for California court policy that fails to follow the 2006 federal judiciary (and courts of most larger states) and return the right to cite unpublished court of appeal opinions, just as her predecessor, Chief Justice Ronald George, refused in 2008 to answer Assemblymember Huffman.
October 20, 2010:
Please see Committee for the Rule of Law’s
letter to the California Supreme Court opposing the “depublication” of the decision of the
Appellate Division of the Orange County Superior Court, in People v. Park, a case involving the
legality of the red light camera system in
September 30, 2009: U.S. District Court Judge William Alsup denied plaintiff's request for a preliminary injunction on July 27, 2009 and issued the order viewable here. Notice of Appeal to the U.S. Court of Appeals for the Ninth Circuit was filed by Plaintiff-Appellant on September 30, 2009. Appellant's opening brief is due January 15, 2010, and Respondant's brief is due February 15, 2010. Appellant then will have fifteen days in which to file a response. A panel of judges will be chosen and a date for oral argument set. See July 19, 2009 entry for other court documents.
June 19, 2009: Suit was brought in federal district court in the Northern District of California to enjoin the California Supreme Court, the Judicial Council, the State Bar of California, and other state actors from enforcing California state court rules prohibiting citation of unpublished appeal court opinions including as a violation of our Constitutional First Amendment free speech rights. Please see all of the court filings and hearing transcripts on our dedicated page: Schmier v. Justices of the Supreme Court, et al.
15, 2009: News from
October 29, 2008: The California Judicial Council released its Annual Court Statistics Report for 2008. Please see the Introduction, Full Report, Press Release, and past reports. In fiscal year 2006-2007, according to the report, the California Supreme Court ordered 19 Court of Appeal opinions depublished and, statewide, 9 percent of Court of Appeal majority opinions were published, while 91 percent were ordered not to be published.
September 5, 2008: State Assemblymember Jared Huffman, 6th District, followed up on the exchange below (April 1, 2008) with this (second) letter for Chief Justice George regarding unpublished opinions. In addition to responses to the questions posed by Assemblymember Huffman's letter, responses are sought to the additional questions found here.
April 1, 2008: California State Assemblymember Jared Huffman, 6th District, is the latest state legislator to seek an update from Chief Justice George regarding the progress of the California Supreme Court Advisory Committee on Rules for Publication of Court of Appeals Opinions. His (first) letter, located here, follows up on Assemblymember Dymally's letter of May 8, 2007 (see below). Chief Justice George's written response can be viewed here.
February 28, 2008: In an opinion released this morning, the Massachusetts Appeals Court modified its long-standing policy that "unpublished decisions of this court are not to be relied upon or cited as authority in unrelated cases." The Court said that unpublished decisions "issued after the date of this opinion, may be cited for [their] persuasive value but . . . not as binding precedent." Please see the Press Release from the Court announcing this rule change.
February 16, 2008: Please
see Legislative Counsel bill language for a
possible new bill in the
December 27, 2007:
The State of
October 4, 2007:
June 21, 2007: Committee For the Rule of Law Director Michael Schmier has issued an e-mail letter request to: 1) California Senate Judiciary Committee Chair Hon. Ellen Corbett; 2) California Assembly Judiciary Chair Hon. Dave Jones; 3) California Senate Judiciary Committee Member Hon. Sheila Kuehl; and 4) California Assembly Judiciary Committee Member Hon. Mike Feuer, requesting that they each send a letter to Chief Justice George asking him whether he remains opposed to citation of unpublished appeal court opinions in light of the findings by the federal courts that George's position is "without substance" and "cannot be justified as a matter of policy." The letter also requests detailed evidence of the "fiscal ramifications" and "complexity" of the proposals to end prohibition on citation of unpublished appeal opinions, as referred to in George's May 18, 2007 letter.
June 19, 2007: After
meeting with California Chief Justice Ronald George, Assemblyman Mervyn Dymally,
has decided not to introduce a bill that would allow lawyers to cite
unpublished opinions. Daily Journal Article here.
May 30, 2007: Assembly member Mervyn Dymally
has accepted Chief Justice George’s invitation to discuss the non-publication /
no-citation issue. Letter here. Also, Presiding Justice Vaino Spencer has written to Assemblyman
Dymally explaining and supporting the existing practice of prohibiting citation
to unpublished decisions in
May 18, 2007: Chief Justice George has issued a written response to Assemblyman Dymally’s May 8, 2007 letter, inviting him to discuss the issue in person. Letter here.
May 8, 2007: California State Assembly member, Mervyn M. Dymally (52nd District), has composed a letter to California Chief Justice Ronald M. George, inquiring as to the Chief Justice's current position on the non-publication / no-citation issue in the California court system.
February 13, 2007: The Committee for the Rule of Law has issued letters to all 120 California state legislators (40 senators, 80 assembly members) asking them to author and sponsor a bill which would would prohibit a state court from prohibiting or restricting the citation of state judicial opinions, orders, judgments, or other written dispositions that have been designated as "unpublished," "not for publication," "nonprecedential," "not precedent," or other similar designation. These letters were ultimately followed up by multiple telephone calls. Approximately 80% of the recipients ignored the communication, while the other 20% responded "too busy." Assemblymember Dymally contemplated a bill's authorship, wrote a letter to the Chief Justice of California, met with him, and was derailed by intense lobbying, despite Chief Justice George's claim that separation of powers precluded him from participating in that very lobbying. (See May 2007 entries above.)
December 12, 2006: The California Supreme Court Advisory Committee on Rules for Publication of Court of Appeal Opinions, chaired by Supreme Court Justice Kathryn M. Werdegar, issued its Final Report and Recommendations. The report can be viewed HERE, and the appendixes, HERE.
December 12, 2006: Please see this News Release issued by the Administrative Office of the Courts concerning Rule 8.1105 of the California Rules of Court which, effective April 1, 2007, will replace the previous Rule 976 which dealt with citation of unpublished decisions in California Courts of Appeal. The text of CRC Rule 8.1105 as amended, is also included in the News Release.
A Daily Journal article published December 13, 2006 summarizes the new rule and the effect of the Werdegar Committee Report.
December 1, 2006: Federal Rule of Appellate Procedure 32.1, which ends former prohibitions forbidding us to cite unpublished appeal court opinions, is now effective as of this date as the Congress made no changes in the language adopted by the U.S. Supreme Court on April 12, 2006.
The new rule reads as follows:
Citing Judicial Dispositions
(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and (ii) issued on or after January 1, 2007.
(b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.
Please see the following comments:
Please also see a Ninth Circuit Court of Appeals memo addressing amendments to the Federal Rules of Appellate Procedure for the 9th Circuit, which includes the new Rule 32.1.
Finally, please see equivalent notices and/or rules from the following Appellate Circuits:
April 12, 2006: The
March 3, 2006: Please see Kenneth Schmier's letter to Clifford Alumno, Administrative Office of the Courts, regarding Comments to the California Supreme Court Advisory Committee On Rules For Publication of Court of Appeal Opinions.
February 2006: Please see Kenneth Schmier's Twenty Questions regarding No Citation Rules
January 2006: Please see letters from Kenneth Schmier and Prof. Stephen Barnett to the Administrative Office of the Courts regarding the report of the Werdegar Committee on nonpublication rules.
December 23, 2005: Please see Michael Schmier's open letter regarding the upcoming Senate confirmation hearings of Judge Samuel Alito, and the important role that issues of precedent and governmental secrecy should play in those hearings.
October 31, 2005: The Committee for the Rule of Law wishes to congratulate Judge Samuel Alito on his nomination for Justice of the United States Supreme Court. For a listing of documents relating to Judge Alito's nomination and his views on unpublished opinions, click here.
Judge Alito's May 24, 2004 memo to Standing Committee chair Judge David Levi regarding FRAP 32.1 shows his deep respect for precedent. Recognizing that precedent will be a key issue for the upcoming confirmation hearings, we pose the following question for Judiciary Committee Senators Patrick Leahy and Arlen Specter to ask of Judge Alito:
When proposed FRAP 32.1 comes before the Supreme Court in April 2006 for action, will you vote for the newly added limitations forbidding citation of unpublished precedent decided before the rule's adoption, or will you vote to allow unlimited citation to precedent as you, Chief Justice John Roberts, the Advisory Committee on Appellate Rules and the Standing Committee on Rules and Procedures twice previously voted for?
October 20, 2005: Please see Kenneth Schmier's letter to the Judicial Performance Commission, the only agency in California allowed to investigate or discipline judges, asking it to enforce California Court Rule 977 by identifying and reprimanding offending judges who are routinely, willfully, and clandestinely relying upon unpublished opinions in appellate decision making, thereby violating Rule 977.
October 17, 2005: The California Supreme Court Advisory Committee on Rules for Publication of Court of Appeal Opinions has offered a draft of its report to the Court, entitled "Preliminary Report and Recommendations on Rules for Publication of Court of Appeal Opinions."
***September 20, 2005***: A great victory for the cause of
justice was won. The
Judicial Conference of the
The new rule as approved is significantly altered from that which the Standing Committee and the Advisory Committee (including its member, Chief Justice John Roberts) recommended. They recommended that all prior unpublished decisions be citable regardless of date of issuance. Permitting a continued ban on citing unpublished decisions issued prior to January 1, 2007 is Judicial Conference admission that those decisions are inherently unreliable. What to do with the enormous volume of erroneous opinions is a big problem. Nobody should have to follow a large body of law the judges admit is completely untrustworthy, but hiding it under the carpet only lets its rottenness continue to fester. A new rule could remove any compulsion to follow bad opinions like California Senate Bill 1655 (Kuehl) does, but not forbid us to mention and analyze them "in the sunshine" for whatever enlightenment they may provide.
Now that the Judicial Conference has approved FRAP 32.1, the Supreme Court, with John Roberts as chief justice will review it by May 2006. Hopefully, the Supreme Court will remove any ban on citing prior unpublished decisions as Justice Roberts has twice voted to do. After Supreme Court approval, Congress will have the opportunity to review. If there is no congressional opposition, the new rule will be in effect automatically on January 1, 2007.
Please see Advisory Committee chair Judge Samuel A. Alito Jr.'s May 6, 2005 memo to Judge David Levi regarding 32.1 and the April 18, 2005 meeting of the Advisory Committee on Appellate Rules.
September 16, 2005: Please see letter to Supreme Court Justice John Paul Stevens, acting chairman of the Judicial Conference September 20 meeting, and fax transmittal to Standing Committee chair Judge David Levi and Advisory Committee chair Judge Samuel Alito, that at his Senate confirmation hearings, Chief Justice John Roberts repeatedly testified that stare decisis and precedent are all about "settled expectations" that people believe the law is what the courts say the law is.
September 16, 2005: Please read "Has Anybody Noticed The Judiciary's Abandonment of Stare Decisis?" by Kenneth and Michael Schmier. 7 Journal of Law and Social Challenges 233, Fall 2005.
September 16, 2005: Please also see Cyrus Sanai's piece in the The Recorder entitled, "Taking the Kozinski Challenge."
September 15, 2005: Transcripts of the Judiciary Committee hearings of John G. Roberts are available:
Day 1 - September 12, 2005
Day 2 - September 13, 2005
Day 3 - September 14, 2005
Day 4 - September 15, 2005
Note: On September 14, 20 minutes into questioning from Senator Sam Brownback (R-Kansas) Roberts testified that "it is the essential function of the Supreme Court to provide uniformity and consistency in federal law." We simply ask: how can uniformity and consistency in the legal system be obtained when citation to all decisions is not allowed?
June 16, 2005: The California Supreme Court Advisory Committee on Rules for Publication of Court of Appeal Opinions [Cal. Rule of Court 976, 977] announced it plans to submit its report to the court in Fall 2005.
June 15, 2005: The "Standing Committee on Rules of Practice and Procedure", chaired by Judge David H. Levi (E.D.Cal.), voted unanimously (14-0) to adopt proposed FRAP 32.1. See summary of Standing Committee actions taken here. See also June 16 article, "Conference to mull unpublished opinions" by Jeff Chorney in "The Recorder."
June 1, 2005: Final Version of the Federal Judicial Center's study of the effects of no-citation rules released. (See also entry of April 14 & 18, 2005).
May 6, 2005: Justice Samuel Alito's memo to Judge David Levi regarding 32.1 and the April 18, 2005 meeting of the Advisory Committee on Appellate Rules.
April 24, 2005: The California Supreme Court Advisory Committee on Rules For Publication of
Court of Appeal Opinions, chaired by Justice Kathryn M. Werdegar is
asking attorneys to complete a survey on publication rules. The committee does
not acknowledge the existence of the no-citation rule, or that since all
opinions are now "posted" (unfortunately for a limited 60 day
duration, why not permanently posted?) on the internet rather than
"published," the main significance of whether or not an opinion is
published is whether it can be mentioned in a court room.
The survey is at http://www.courtinfo.ca.gov/courts/supreme/comm/
April 18, 2005: The Advisory
Committee on Appellate Rules, chaired by Judge Samuel Alito, Jr. of the
Third Circuit, voted to approve FRAP
32.1 (7 - 2). Committee member John G. Roberts, nominee
for chief justice of the
April 14, 2005: Please see the preliminary version of the Federal Judicial Center's study of the effects of no-citation rules released.
Please see Kenneth Schmier's January 9, 2005 letter to California Supreme Court Justice Werdergar, requesting that she advise the public of the complete calendar and agenda of the Supreme Court Advisory Committee on Rules for Publication of Court of Appeal Opinions, and requesting an opportunity to be heard before the committee.
The Supreme Court of Wisconsin recently refused to change its no-citation rule, but the opinions of the judges are extremely interesting. The Chief Justice's dissent eloquently states the case for permitting citation to unpublished opinions for persuasive authority.
The United States Supreme Court has denied Kenneth Schmier's petition for certiorari,
which had requested review of
The Committee for the Rule of Law wishes to express its great sadness over the loss of Judge Richard Arnold, the widely respected judge on the 8th U.S. Circuit Court of Appeals, and author of Anastasoff v. U.S., which held unconstitutional court rules forbidding citation of unpublished appellate decisions. 223 F.3d 898 (8th Cir. 2000) (reversed en banc on other grounds).
The Ninth Circuit has posted this new rule on its website regarding memoranda dispositions (a.k.a. "mem-dispos" or "unpublished decisions"). The memoranda dispositions will be posted on the website for 30 days, but are not citable to the court.
According to Howard Bashman -- http://legalaffairs.org/howappealing/: Another reason why the U.S. Court of Appeals for the Ninth Circuit should abandon its policy prohibiting citation to unpublished opinions: To avoid intruding on the spare time of senior judges serving on other U.S. Courts of Appeals who are called on to form a specially-constituted Ninth Circuit panel to reject absurd legal challenges to the Ninth Circuit's current policy. See this decision issued by a three-judge Ninth Circuit panel consisting of Senior Eleventh Circuit Judge Phyllis A. Kravitch, Senior Eighth Circuit Judge C. Arlen Beam, and Senior Third Circuit Judge Robert E. Cowen. Ironically, in at least two of those three other circuits, litigants are free to cite to unpublished opinions at will.
July 16, 2004: Mark Geragos, defense counsel in the Scott Peterson murder trial "obliquely" mentions unpublished decision by name in court. See story HERE.
June 30, 2004: An excerpt from the Supreme Court's recent
ruling in Ashcroft v. ACLU is available on our quotations page.
The language of the opinion clearly explains that legislatures must allow
appropriate scrutiny of their own rules. Schmier
v. Supreme Court of California argues that
June 17, 2004: The Standing Committee referred FRAP 32.1 back to the Appellate rules committee for quantification of the problems cited by the dissenting judges. See the Daily Journal article.
June 17, 2004: Kenneth Schmier has filed a petition for certiorari in the United States Supreme
Court, requesting review of
The Standing Committee on
Rules of the U.S. Judicial Conference will meet in
April 14, 2004: The U.S. Court of Appeals Advisory Committee on Appellate Rules voted (7-1) to endorse proposed FRAP 32.1. A transcript of their meeting is available HERE. Or download the transcript in Microsoft Word format (1.2 MB) by "right-clicking" HERE and then selecting "Save Target As." Read the recent articles on the Press Clippings page.
Judge Tashima's letter in support of Proposed FRAP 32.1 suggests approval by lawyers and a split among Ninth Circuit judges, with a "slight majority" favoring the rule.
February 27, 2004: California State Senator Sheila Kuehl has introduced Senate Bill 1655 that would make all decisions of the appellate courts citable. See the bill's history and current status.
February 17, 2004: The United States Administrative Office of the Courts has issued a press release explaining the role and extent of reliance upon staff attorneys, presumably to head off the potential of a firestorm that might be ignited by the Kozinski comment to Proposed FRAP 32.1.
Please view Kenneth Schmier's Petition for Review to the California Supreme Court.
Each of the (numbered) five hundred thirteen (513) public
comment letters (pro & con, more than twenty times the number usually sent)
to the federal Advisory ("Alito") Committee on Appellate Rules,
including [No. 03-AP-471, February 13, 2004] from Ronald George, Chief Justice
Materials related to Proposed Federal Rule of Appellate Procedure 32.1 can now be found here.
Judge Alex Kozinki's January 16, 2004 letter to 3d Circuit Judge Samuel Alito, Jr. in opposition to Proposed Federal Rule of Appellate Procedure 32.1. (Index of Attachments.) Professor Stephen Barnett responded to Judge Kozinki's letter in this letter to Judge Alito. Also see Ken Schmier's comment on Proposed FRAP 32.1.
December 16, 2003: The California Court of Appeal affirmed the trial court’s dismissal of Ken Schmier’s attempt to enjoin the use of rule 977 on the grounds that it is unconstitutional. Read the appellate court’s decision.
Recently, Lisa Perrochet, Chair of the Subcommittee on Future of Appellate Courts, Los Angeles County Bar Association Appellate Courts Committee, authored a letter to Assemblyman Mervyn Dymally, challenging the constitutionality of AB1165. Kenneth and Michael Schmier's response to the letter can be read here. These materials and more can be found on the LACBA website.
The Standing Committee approved our request to publish new Rule 32.1 for comment. The rule will be published sometime in August; the bench and bar will have until sometime in February to submit comments. Those comments will be considered by the Advisory Committee at its spring 2004 meeting. If the Advisory Committee decides to approve the rule -- with or without modifications -- the rule will go back to the Standing Committee at its June 2004 meeting. If the Standing Committee approves the rule, it will go to the Judicial Conference in September 2004. If the Judicial Conference approves the rule, it will go to the Supreme Court, which will have until May 1, 2005 to decide whether to adopt it. If the Supreme Court adopts it, the rule will go to Congress. The rule will take effect on December 1, 2005, unless Congress passes legislation blocking it.
It will be important for those who support the rule to submit comments during the comment period. The more judges, lawyers, and state and local bar associations that line up behind the rule, the better the chances that the rule will be approved.
Here are the draft minutes from the May 15, 2003 Advisory Committee on Appellate Rules meeting and the report that the Advisory Committee submitted to the Standing Committee in preparation for the Standing Committee's June meeting.
Now, the Advisory Committee and Standing Committee have published a new rule. Here is Tony Mauro's Article, and here is the Proposed Rule 32.1.
The California Legislature voted down AB 1165. Please see the text as introduced, text as amended, analysis, committee votes, bill status, and bill history.
Here is Ken Schmier's statement to the Assembly Judicial Committee.
Also, Boalt Law School Professor Stephen Barnett's statement.
Click here to read a letter from Ray LeBov, Director of the Judicial Council of California opposing AB1165.
Please also see information concerning AB 2404, introduced February 24, 2000: text as introduced, analysis, committee votes.
A draft of the minutes from the 2002 meeting of the Appellate Rules Committee is now available.
The Appellate Rules Committee is poised to do in no-citation rules on a
national basis. The committee met on November 18-19, 2002 in
Read the Daily Journal and Recorder articles about the meeting.
The agenda which included three alternative rules to that affect is available here. Read Patrick J. Schiltz's introduction and committee alternatives 'A', 'B', and 'C', as well as the Rule of Law Alternative.
This meeting took place in the wake of the June 2002 Congressional Hearings in
The Hawaii Supreme Court thoroughly discusses the problem with unpublished decisions in the first footnote of a July 2002 decision. Read it here.
The Appellate Court of Alaska has construed its no citation rule to allow citation for persuasive purposes. Its decision reviews activities in many states on this point. Read the appeals court decision here.
The Journal of Appellate Practice and Process
published by the
On September 24, 2001, the 9th U.S. Circuit Court of Appeals upheld its rule barring citation of unpublished opinions. The three judge panel unanimously held in Hart v. Massanari, 01 C.D.O.S. 8299 that unpublished decisions cannot be cited in briefs, even as persuasive authorities. The text of that opinion is available here. Kenneth Schmier and Michael Schmier have prepared a response to this opinion, and we encourage you to take a moment to read it here. Also, an article discussing the opinion is available in the Press Clippings section.
Please see a letter from the
American Bar Association's Governmental Affairs Office, stating the
On April 24, 2001, the Bar Association of San Francisco presented a discussion entitled "Unpublished Decisions: Caught Between Scylla and Charybdis". A transcript of the discussion is available here.
According to the annual Court Statistics Report for 2001, published by the Judicial Council of California, 94% of California Appellate cases are not published and are illegal to cite: See Table 9 page 39.
In related news, a Judicial Council white paper released in March of 2001 has advocated posting all appellate opinions to the Internet. The document is available here.
Possibly because of this, The Judicial Council of California has announced that all unpublished appellate opinions will be "posted" to the web for 60 days beginning October 1, 2001. Westlaw and Lexis have announced that they will index all unpublished decisions. Despite being made equally computer available to the public with published decisions, unpublished decisions may still not be cited in any California Court.
Kenneth J. Schmier, Chairman of the Committee for the Rule of Law, recently sent a letter to the Committee on Rules of Practice and Procedures of the Judicial Conference of the United States requesting a response to 20 questions regarding rules of non-publication and the detrimental effects of these rules on the legal system, and challenging the Committee to address publicly these questions. The text of the letter is available here.
Schmier v. the United States Court of Appeal for the 9th District was dismissed on March 26, 2001 without leave to amend by Judge Vaughn Walker. (See Judge Dodges Issue Over Publication Rules.) According to the Court the complaint could not possibly be amended to state a harm to attorneys despite argument that 85% of the decisions of the appellate court are not to be mentioned in his court by attorneys, barring access of a member of a profession to the tools of his trade. See Order Dismissing Schmier v. United States v. Court of Appeals for the Ninth Circuit.
The committee has discovered a position statement of the USDOJ inconsistent with that argued by the USDOJ in support of its motion to dismiss on behalf of the USCA and consistent with this committee's position regarding unpublished opinions. See Submission of the United States Department of Justice to the Commission on Structural Alternatives for the Federal Courts of Appeals.
A Federal Magistrate has issued, sua sponte, an order to show cause why Mike Schmier's pro per complaint against the 11th circuit should not be dismissed for want of standing. The complaint will be amended to allege that same harm the DOJ has recognized as harming its lawyers. See Order to Show Cause
The Committee on Rules of Practice and Procedure of the Judicial Conference
Various Bar Associations have begun holding programs drawing out appellate justices to defend no-citation rules. Here are two coming up shortly:
Judge Richard Arnold and the 8th Circuit U.S. Court of Appeals have vacated the previous ruling which found that stripping unpublished opinions of precedential value is unconstitutional. Writing in a routine tax case, Judge Richard Arnold had reasoned that by allowing judges to ignore precedent, the rule grants them a remarkably arbitrary power -- a power that the framers of the Constitution did not intend to give them in Article III. The defendant in the case, the IRS has since changed the policy that was in question in the case, and repaid the plaintiff in full, thus rendering the case moot, according to the Court. You can read the text of the original opinion, or read the new ruling. Also, you can see Tony Mauro's article on the decision.
Also, please refer to Schmier v. the 11th Circuit
Court of Appeals to see how non-publication may effect the
For other recent developments, please see the press clippings.