Committee for the Rule of Law

1475 Powell Street Suite 201

Emeryville, CA 94608


Fax: 510.652.0929

October 11, 2006


Ms. Cathy A. Catterson, Clerk of Court.Circuit Court Executive

United States Court of Appeals for the Ninth Circuit

James R. Browning Courthouse

Post Office Box 193939

San Francisco, CA 94119-3939


Re:   Comments Regarding Proposed Rule 36-3


Dear Ms. Catterson:


The Committee for the Rule of Law has been at the forefront of advancing FRAP 32.1.  We maintain website as a library of materials related to unpublished appellate opinions and no-citation rules.  Thank you for the opportunity to comment on proposed Circuit Rule 36-3.


At the conclusion of this letter we offer a suggestion to better accomplish what we believe to be the concern of the Judge Kozinski camp.


Our concerns with proposed Circuit Rule 36-3 fall in three areas.  


First, the designation of unpublished dispositions and orders of the Court in subparagraph (a) as  “not precedent” is inappropriate.    President Lincoln used to ask, “How many legs does a dog have if you call the tail a leg?”  His answer was four, because calling a tail a leg does not make it a leg.   Similarly, calling a precedent “not precedent” will never make it so.  Such conduct is Orwellian and beneath the Court.   No issue already resolved by a prior court determination of any kind is unprecedented by definition, and all prior dispositions are its precedents, again by definition.   Altering well accepted definitions should take more than a local rule.


To us, a rule that allows the august Ninth Circuit Court of Appeals, the highest court to which the people have assured access, to make decisions that are not precedent, ends the rule of law, as we know it.  From the beginning of our involvement in this debate over 10 years ago, we have asked, “What mechanism enforces the rule of law to control judicial caprice in the absence of the making of citable precedent?”    In all of the debate regarding FRAP 32.1, neither Judge Kozinski, nor any other apologist for no-citation rules and unpublished dispositions has answered this pivotal question.  We think an answer ought to be forthcoming before the rule of law is so drastically compromised.


We do concede that courts have wide latitude in how precedents will be used.  We accept that no precedent is truly “binding” upon any court that can properly articulate why it should not be followed.  Therefore we do not object to subparagraph (a) if its title and text read “not binding precedent”. 


Second, the no-citation rule of subparagraph (c), being based solely upon the date of issuance of the unpublished disposition or order constitutes an unconstitutional prior restraint of free speech and does nothing to address the myriad of objections to no-citation rules brought by hundreds of commentators on Rule 32.1.  It cannot be sustained if a regular inquiry employing traditional constitutional law is permitted by the judiciary.    We have experienced the judicial capacities to arbitrarily dismiss legitimate challenges to their own rules and we say now that such dismissals are an abuse of judicial power that greatly diminish our faith in the independence of judicial officials from the judicial bureaucracy.   The judiciary should not make rules that it must defend with its power rather than its reason.   Whether or not a no-citation rule could be justified by a frank (and perhaps long overdue) admission that many dispositions are clerk made malarkey intended to justify decision making not the result of the analysis presented in the disposition will have to await further inquiry.


That judges and law clerks are regularly looking to unpublished dispositions for guidance or to check consistency with past dispositions means that these dispositions still must be subject to rigorous quality control.    No internal quality control system will ever match the effectiveness of tens of thousands of court watchers, each acting of self-interest, examining and commenting upon dispositions of possible future use as authority.  No other system better identifies issues needing differing resolutions, or further thought.   The comments that will come from law professors and other interested persons with special understanding of issues will help to improve the law put forward by these dispositions. 


Third, that subparagraph (c) permits courts of the circuit to cite unpublished decisions while simultaneously prohibiting litigants from doing so is unacceptable.   Parties must be allowed to counter whatever influence unpublished dispositions might have upon those determining their causes.  


Subparagraph (c) forces litigants to prepare for possible judicial cite of unpublished authority, but will be unable to use found authority.    Shall an attorney simply hope a judge will (or will not) come across an appropriate disposition?   If a court cites a disposition, the rule makes it appear that an attorney may still not cite it back to the court either in rebuttal, or for other support it may hold.    What should be apparent is the innate awkwardness of operating a no-citation rule to limit otherwise appropriate legal argument in the highest courts of a country that views free and open debate and the right to petition government for redress of grievances among its highest values.    If wholesale  appellate dispositions are “sausage unfit for human consumption” the solution is to correct production methods, not to encapsulate the bad product.


Let us reiterate.  We do not object to a classification of non-binding dispositions.  This is preferable to maintaining falsely that the body of unpublished dispositions has no import to the law at all.  


We accept the classification of non-binding appellate dispositions because, in our view, no appellate decision is, or should be, truly binding upon a subsequent court that can articulate logic or appropriate mercy justifying a different outcome.  Were it otherwise the power of an appellate panel would be co-extensive with that of the Congress because its decisions would effectively have the staying power of statutes.   Congressionally made law can have limits on the ability of courts to alter it because Congressional process provides public notice and a gauntlet of opportunities for the democracy to weigh in  before becoming law.  But a three-judge panel has little if any checks upon its law writing power when making “binding precedent”.   Judge made law should have no more staying power than that deserved by future acceptance of its rationale given the appropriate influence of considerations we call stare decisis.  Most of the circuits do not adhere to a doctrine of binding precedent.  We think that is the better policy. 


It may seem odd that our committee, having expended so much time and energy to see the end of no-citation rules, is more concerned with binding precedents than non-binding precedents.  In our view, binding precedents tempt courts to perpetuate error.  While perpetuation of error may be justified for the convenience of the community (property rules come to mind), error should never be perpetuated simply for the convenience of a court (admitted by Judge Kozinski), and certainly not simply because correcting the error requires troublesome en banc review.   It also fails to recognize that good judgment can choose from many equally justifiable resolutions.    Perhaps, if as argued by Judge Kozinski, that it is the “binding precedent” doctrine that necessitates controversial no-citation rules and redacting of precedents,  the Ninth Circuit, as the majority of Circuits have determined, would be better off without it.


Nevertheless ambiguities must be resolved in a stable fashion, and, apparently the Ninth Circuit feels the flexible doctrine of stare decisis, absent binding precedent, needs a bit more rigidity to obtain that objective.


Here is our suggestion:  Appellate opinions and other dispositions should expressly identify, as what we would call a “resolve”, those holdings within a decision (which should be published) that are intended to have a binding nature upon which the community should rely, for the benefit of the community.   Such a practice would give clear notice of Circuit policy decisions while simultaneously reducing points of rigidity in the common law from entire published opinions to necessary specific points, resolves would lessen the safe harbors for the nefarious created by the specific words of any disposition or opinion, and, in the spirit of common law, encourage citizens to seek safe harbor in that conduct which is demonstrably fair, reasonable and generous as to all other issues it addresses.   While resolves do appear to be quasi-statutory, they are no more so than the “binding precedents” resolves are intended to replace.


We ask that notices of all private and public meetings related to 36-3, and copies of all materials including comments be sent to us at the above address.


Thank you for the opportunity to comment.



Kenneth J. Schmier


Committee for the Rule of Law