USCA Docket No. 01-16105

N.D.Cal. Docket No. CV-00-04076-VRW

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

__________________________________________________________

MICHAEL SCHMIER,

Appellant,

v.

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT and JUDICIAL COUNCIL OF THE NINTH CIRCUIT,

Appellees.

__________________________________________________________

APPELLANT'S REPLY BRIEF

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

HONORABLE VAUGHN R. WALKER, PRESIDING

Kenneth J. Schmier, Esq. (Bar No. 62666)

1475 Powell Street, Suite 201

Emeryville, CA 94608

(510) 652-5450 (telephone)

(510) 652-0929 (facsimile)

Attorney of Record for Appellant,

Michael Schmier

TABLE OF CONTENTS

Page

I. INTRODUCTION 1

II. LEGAL ARGUMENT 4

A. Appellant Has Standing To Bring This Action

Even Though His Injury Is Not Unique 4

B. The Challenged Circuit Rules Are Unconstitutional 7

1. The Holding In Hart v. Massanari Is Limited To

Article III Analysis And Does Not Resolve Other

Constitutional Arguments Raised By Appellant 8

2. The Nonpublication/No-Citation Rules Of The

Ninth Circuit Violate Free Speech, Equal

Protection, And Due Process 11

a. The no-citation rule violates

Appellant's freedom of speech by imposing

a prior restraint on the content of speech 11

b. Rules 36-1 through 36-4 violate the equal

protection and due process protections of

the Fifth Amendment 14

III. CONCLUSION 17

CERTIFICATE OF COMPLIANCE 18

CERTIFICATE OF SERVICE 19

TABLE OF AUTHORITIES

Page

CASE AUTHORITIES

Anastasoff v. United States, 223 F.3d 989 (8th Cir.

2000), vacated, 235 F.3d 1054 (en banc) passim

Branson School District RE-82 v. Romer, 958 F. Supp.

1501 (D.Colo. 1997) 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 5

Friends of the Boundary Waters Wilderness v. Thomas,

53 F.3d 881 (8th Cir.1995) 4, 5

Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) passim

James B. Beam Distilling Co., 501 U.S. 529 (1991) 14, 15, 16

Japan Whaling Ass'n v. American Cetacean Soc.,

478 U.S. 221 (1986) 4

Legal Services Corp. v. Velazquez, 531 U.S. 533,

121 S.Ct. 1043 (2001) 12, 13

Mausolf v. Babbitt, 85 F.3d 1295 (8th Cir. 1996) 4

Near v. Minnesota, 283 U.S. 697 (1931) 11

New Port Largo, Inc. v. Monroe County, 985 F.2d 1488

(11th Cir.1993) 11

New York Times Co. v. United States, 403 U.S. 713 (1971) 11

Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) 5

Nordlinger v. Hahn, 505 U.S. 1 (1992) 16

Planned Parenthood v. Casey, 505 U.S. 833 (1992) 14

Sierra Club v. Morton, 405 U.S. 727 (1972) 4

Sierra Club v. Robertson, 28 F.3d 753 (8th Cir.1994) 5

TABLE OF AUTHORITIES (Continued)

Page

Simeon v. T. Smith & Son, Inc., 852 F.2d 1421

(5th Cir. 1988) 11

Sorchini v. City of Covina, 250 F.3d 706

(9th Cir. 2001) 15

Staub v. Baxley, 355 U.S. 313 (1958) 11

Texas Rural Legal Aid, Inc. v. Legal Services Corp.,

783 F. Supp. 1426 (D.D.C. 1992) 12

Turner Broadcasting System, Inc. v. F.C.C.,

512 U.S. 622 (1994) 13

United States v. Students Challenging Regulatory Agency

Procedures, 412 U.S. 669 (1973) 5, 7

MISCELLANEOUS AUTHORITIES

Wright, Miller, Cooper, 13 Federal Practice and

Procedure, Juris.2d § 3531.10 5

I. INTRODUCTION

Appellant challenges the constitutionality of Circuit Rules of the Ninth Circuit which operate to avoid the precedential effect of prior judicial opinions and to prohibit litigants from even mentioning prior judicial decisions -- no matter how relevant -- unless those decisions are designated as published "opinions." Appellees argue that the complaint herein was properly dismissed because Appellant lacks standing and because the recent published opinion in Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), resolves the dispute in this circuit. Appellees are incorrect.

First, contrary to Appellees' assertion, Appellant does not argue that he meets constitutional standing requirements as a mere member of the general public, even though the general public is indeed injured by the challenged rules. Rather, as a practicing attorney, Appellant suffered -- and continues to suffer -- an injury that is concrete and particularized when contrasted with that of the general public. Appellant's injury is not diminished merely because it is widely shared with other practicing attorneys. Appellees go too far in asserting that a litigant is denied standing because his injury is not unique. Appellant alleged an invasion of his legally protected interests that is concrete and particularized, and that allegation was sufficient to withstand the challenge to Appellant's standing on a mere motion to dismiss.
Second, Appellees are correct that the decision in Hart v. Massanari first answered for this circuit the question of whether the nonpublication rules challenged in this action exceed the judicial power authorized by Article III -- at least until Hart's holding is rejected by the Supreme Court or the Ninth Circuit sitting en banc, a practice Appellant challenges. However, Appellees are incorrect that Hart v. Massanari resolves the entire dispute on the merits. To the contrary, the decision there does not address the First Amendment challenges raised by Appellant as to the no-citation rule, nor does it hold that the nonpublication/no-citation rules are consistent with the Fifth Amendment. The rule prohibiting citation of unpublished dispositions of the court, regardless of whether those dispositions are accepted as "precedent" or "binding precedent," is unquestionably an impermissible prior restraint on the content of speech.

Appellees err in mischaracterizing Appellant as advocating that all dispositions of the Court be accepted as binding precedent because Appellant does not suggest that all dispositions be binding in later determinations. Appellant merely argues that the Court acts inconsistent with the Constitution when it ignores relevant prior dispositions, whether published or unpublished, or prohibits litigants from citing all relevant prior dispositions of the court. Whether or not the judiciary admits or recognizes the historical existence of its prior dispositions which did not result in "published" opinions, those prior dispositions are, by common definition of the word, precedent. To say otherwise is Orwellian "New Speak."

Appellant recognizes the right and duty of the court to follow, distinguish, or overrule any prior opinion provided it can articulate justification for its action, is willing to abide by the same for the foreseeable future, and acts within the determination of a case.

Truth, and the integrity of the court, will not allow the denial of the historical existence of opinions of the court simply because the court has deemed them not worthy of publication. Rather, those prior determinations are precedent as a matter of historical fact. Real litigants, possessed of real human emotions and real concerns, came before the court for resolution of their grievances. It is offensive to the basic understanding of law and justice to say to the losing litigant that the law used to resolve his case is not good enough or careful enough to be used again in resolution of similar or even identical disputes, nor will it serve the peaceful acceptance of dispute resolution if the court itself withholds its resolution from careful consideration of the general public. Simply put, nonpublication rules defeat the systemic warranty that all cases are decided according to law because all decisions become a part of the law. The defeat of this warranty renders the law of this jurisdiction unpredictable and severs feed-back as to application of law to the people.

Because Appellant's professional responsibility is to divine the law for others, and also to protect and improve the administration of justice, he has standing to complain of court practices that lift the anchor of the law from the seabed of the past, and remove necessary reconciliation of its direction to the future from all present decisions.

II. LEGAL ARGUMENT

A. Appellant Has Standing To Bring This Action Even Though

His Injury Is Not Unique.

The Order of Dismissal appealed herein is in error in finding that a litigant cannot have standing if that litigant's injuries are widely shared. The grievance here is with the judiciary itself, and the judiciary should, in the first instance, answer.

Contrary to Appellees' assertion, courts have found plaintiffs to meet constitutional standing requirements even though their injuries are shared by the general public. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (injury of aesthetic interests such as observation and study of endangered animals), Japan Whaling Ass'n v. American Cetacean Soc., 478 U.S. 221, 231 (1986)(plaintiff's interests in watching whales adversely affected by harvesting even though harm shared by public), see also Mausolf v. Babbitt, 85 F.3d 1295 (8th Cir. 1996), Friends of the Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 886 (8th Cir.1995), 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).

These authorities -- relied upon by Appellant and wholly ignored by Appellees -- each stand for the proposition that a plaintiff may have standing even though his injury is widely shared. Appellees err in mistakenly concluding that because the Constitution precludes "citizen standing," it must also preclude an action involving wide-spread injuries.

To the contrary, it has been repeatedly held that standing cannot be denied merely because an injury is shared by the general public. See 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). To deny a litigant standing merely because his injury is shared "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)).

Appellant is an attorney at law who regularly practices employment law in the federal courts. As such, among other injuries to Appellant, the Ninth Circuit rules operate to deny Appellant the concrete body of law upon which to base the opinions he is asked to give in the course of his trade, substituting some lesser, equivocal product unauthorized by the Constitution and the rule of law.

Appellant expressly alleges a clear, present, and substantial right to the performance of Appellees' duties. Appellant further alleges that his Constitutional rights guaranteed by the First and Fifth Amendments are violated by prior restraint. The court has recently issued two opinions stating that it is serious about sanctioning attorneys who cite unpublished opinions. In short, Appellant has expressly alleged concrete and actual invasion of legally protected interests. Although Appellees may further contest the truth of these allegations, the allegations themselves are sufficient.

As a practicing attorney in the area of federal employment law, Appellant's injury from these rules is certainly more concrete and particularized than the general public because it is his professional obligation to advise his clients of the law that will be applied in any particular instance and to assist those clients in planning for its consequences. Under operation of the rules at issue, Appellant is unable to accurately advise clients of the law or even know what law will be applied because of the intercircuit and intracircuit conflicts which exist between published opinions and unpublished memoranda. This is further exacerbated by General Order 4.3.a, which deprives Appellant of the facts of case resolutions. In short, Appellant cannot know if the Court will apply that which it says or that which it does. To deny Appellant's standing here would be to deny a remedy to a plaintiff who is in fact injured merely because many others are also injured, as cautioned against in Students Challenging Regulatory Agency Procedures, 412 U.S. at 687-88.

Appellant has stated sufficient allegations in support of standing to allow this case to proceed beyond a motion to dismiss. Dismissal for lack of standing is not warranted because Appellant has expressly alleged invasion of legally protected interests that is actual and imminent as well as concrete. 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.

B. The Challenged Circuit Rules Are Unconstitutional.

Appellees argue that the recent Ninth Circuit opinion in Hart v. Massanari forecloses all argument on the constitutionality of the nonpublication/no-citation rules. Appellees are incorrect. The holding in Hart v. Massanari is limited to Article III grounds, and the decision does not resolve any other constitutional challenge asserted by Schmier. Appellant's other constitutional arguments are not meritless, and cannot be determined on a motion to dismiss because the purported interests advanced by the rules must be established to an independent finder of fact and weighed against the constitutionally protected interests held by Appellant.

1. The Holding In Hart v. Massanari Is Limited To

Article III Analysis And Does Not Resolve Other

Constitutional Arguments Raised By Appellant.

Appellant respectfully disagrees with the holding of Hart v. Massanari, 266 F.3d 1155, issued by a panel of the Ninth Circuit on September 24, 2001, after Appellant's Opening Brief was filed. Appellant specifically challenges the very notion of "binding precedent," which has been asserted into this appeal at this late stage by Appellees' Brief and by the holding in Hart. Guided by a concept of binding precedent, as discussed at length in Hart, judges essentially act as legislators in determining -- outside their adjudication of specific cases -- which opinions will become the law of the circuit and which opinions will not. The application of binding precedent itself makes clear the superior Article III analysis of the Eighth Circuit panel decision in Anastasoff v. United States, 223 F.3d 989 (8th Cir. 2000), vacated, 235 F.3d 1054 (en banc). Rather than accept binding precedent, which Appellees repeatedly and mistakenly assert that Appellant espouses, Appellant argues only that the court should be constrained by the broader doctrine of stare decisis, which requires only that relevant prior decisions be acknowledged and reconciled.

Appellant challenges Hart, and also challenges that the en banc process is lawfully necessary for this panel to disagree with its holding. The high bar of en banc review creates extra-judicial limits upon the authority of judges of equal rank that are unauthorized by Congress or the people, inhibits the rendering of faithful debate as to the true dictates of the law, encourages maintenance of error rather than its identification and correction, and imposes the convenience of the court as a higher priority than justice to individuals.

However, for the purposes of argument and without waiving Appellant's right to challenge the holding of the Hart opinion in any en banc procedure of the Ninth Circuit or before the Supreme Court of the United States, Appellant's further argument allows Hart as binding precedent on any panel of the Ninth Circuit under this circuit's rules. Nevertheless, Appellees are incorrect that Hart "forecloses [Appellant's] arguments on the constitutionality of this Court's publication and citation rules." (Appellees' Opening Brief, p. 14.)

The opinion in Hart does not address the constitutional challenges raised by Appellant based upon free speech, right to petition government, equal protection or due process. The holding in Hart is limited to Article III grounds and the Ninth Circuit panel's rejection of the Eighth Circuit holding in Anastasoff, 223 F.3d 989. As fully set forth in Appellant's Opening Brief, a panel of the Eighth Circuit in Anastasoff held that Eighth Circuit rules regarding the precedential effect of unpublished dispositions violated the judicial power provided by Article III of the United States Constitution. Hart held the opposite. Appellant stands by his Opening Brief argument regarding the superior Article III analysis of the Eighth Circuit in Anastasoff.

Regardless of whether this Court is bound by the decision in Hart, the opinion there restricted its discussion of the constitutionality of the nonpublication rules to the Anastasoff holding regarding Article III judicial power. As Appellees correctly argue, Hart holds that the nonpublication rules of the Ninth Circuit do not violate Article III of the constitution. That is the full extent of the holding. The opinion is silent as to no-citation rules and whether the nonpublication/no-citation rules violate the first and fifth amendment rights of litigants.

The binding precedent of horizontal decisions is strictly limited to the facts and holdings of cases.

For good or for bad, opinion-writing judges--unlike legislators--can make cases decide no more than the cases present. For example, no matter how often or how plainly a judicial panel may put in its opinion that "we hold X," "X" is not law and is not binding on later panels unless "X" was squarely presented by the facts of the case and was a proposition that absolutely must have been decided to decide the concrete case then before the court....

New Port Largo, Inc. v. Monroe County, 985 F.2d 1488, 1500, n. 7 (11th Cir.1993) (Edmondson, concurring), see also Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1453-54 (5th Cir. 1988)(vertical versus horizontal precedent and limitations based upon specific facts and specific holdings).

Even if this Court is bound by its holding, Hart is limited to a finding that the nonpublication rules do not violate Article III, and the decision cannot be more broadly applied to foreclose other constitutional arguments.

2. The Nonpublication/No-Citation Rules Of The Ninth

Circuit Violate Free Speech, Equal Protection, And

Due Process.

a. The no-citation rule violates Appellant's freedom of speech by imposing a prior restraint on the content of speech.

Rule 36-3(b), which prohibits the citation of unpublished dispositions, is a prior restraint on the content of speech. Notwithstanding Appellees' bald assertion to the contrary, the no-citation rule is not content neutral. Rather, it identifies particular expressive content, i.e., unpublished "memoranda" of the court, and restricts lawyers or litigants from citing or discussing those "memoranda" before the Ninth Circuit. As set forth in the Opening Brief, the First Amendment protects against prior restraints on the content of speech. See Near v. Minnesota, 283 U.S. 697 (1931), Staub v. Baxley, 355 U.S. 313 (1958), New York Times Co. v. United States, 403 U.S. 713 (1971).

The Supreme Court has expressly recognized that laws which restrict arguments which may be raised in court or limit analysis which courts may consider are impermissible restrictions on free speech. See Legal Services Corp. v. Velazquez, 531 U.S. 533, 121 S.Ct. 1043 (2001).

Appellees' argument is unquestionably incorrect. The plain language of the no-citation rule itself makes clear that it restrains speech, which is identified by its content. Ninth Circuit Judge Alex Kozinski, in a speech before the San Francisco Bar Association, offered a defense of the nonpublication/no-citation rules and acknowledged that the rules restrict the content of argument that a lawyer may make before the Ninth Circuit, in clear violation of the rule espouses by Velazquez. See Transcript, "The Appellate Practice Section of the Bar Association of San Francisco Presents: Unpublished Decisions: Caught Between Scylla and Charybdis", April 24, 2001, www.nonpublication.com (stating that litigants are free to use reasoning of unpublished dispositions but may not mention that the reasoning was embraced by three judges of the circuit).

Appellees, however, ignore the Velazquez free speech analysis in their opposition brief and instead cite opinions which inappositely discuss restraints on lawyers' handling of specific types of clients. For example, Appellees rely upon Texas Rural Legal Aid, Inc. v. Legal Services Corp., 783 F. Supp. 1426, 1428-29 (D.D.C. 1992), in which a district court held in 1992 that financial restrictions on the types of legal challenges which could be mounted by the Legal Services Corporation did not violate First Amendment Rights of lawyers. If this holding has not been specifically rejected by Velazquez, 121 S. Ct. 1043, it is certainly suspect. Velazquez unequivocally held that restrictions on pertinent arguments which may be raised in court violate the free speech rights of lawyers and litigants.

The no-citation rule is not "like bar rules or rules governing admission to practice law," as suggested by Appellees. See Appellees' Brief, p. 25. Rather, the no-citation rule expressly restricts what lawyers may say and argue before the Ninth Circuit, no matter how relevant. The no-citation rule is clearly directed at specific speakers, i.e., lawyers and litigants, and clearly restricts the content of their speech.

Finally, even if Appellees are correct that the no-citation rule is content neutral -- which it is not -- their conclusion that it is consistent with the First Amendment is false. Content-neutral speech restraints remain impermissible unless they survive intermediate level scrutiny. See Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994). As Appellant argued in the district court in opposition to the motion to dismiss, the no-citation rule is clearly a restraint on speech, and whether it may survive either strict scrutiny or intermediate scrutiny analysis cannot be determined on a motion to dismiss.

The no-citation rule does not advance a legitimate state interest. As the opinion in Hart v. Massanari itself recognizes,

While we would consider it bad form to ignore contrary authority by failing even to acknowledge its existence, it is well understood that -- in the absence of binding precedent -- courts may forge a different path than suggested by prior authorities that have considered the issue. So long as the earlier authority is acknowledged and considered, courts are deemed to have complied with their common law responsibilities.

Hart v. Massanari, 266 F.3d at 1170.

No-citation rules are an express refusal to acknowledge contrary authority, and such a rule cannot withstand either strict or intermediate scrutiny. This, in turn, supports Appellant's next argument.

b. 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 they combine to insure that all citizens will be subject to the same laws. See James B. Beam Distilling Co., 501 U.S. 529, 535-38 (1991), Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992). Appellees improperly attempt to reject Appellant's argument out of hand by shifting the suggested fundamental right from a right to be subject to the same laws to the ambiguous "right to published dispositions." (Appellees' Brief, p. 22.)

Similarly, Appellees disingenuously distinguish the James B. Beam opinion's discussion of selective prospectivity as simply stating the "uncontroversial proposition" that a new rule of law applied to one litigant must be similarly applied to others. (Appellees' Brief, p. 21.) 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.

Underlying Appellees' argument is the unsubstantiated assumption that no new rules of law are applied in unpublished memoranda of the Ninth Circuit. To the contrary, as set forth in Appellant's Opening Brief, and ignored by Appellees, unpublished dispositions routinely create new rules or refuse to apply existing rules. Indeed, this exact effect was most recently demonstrated in the case of Sorchini v. City of Covina, 250 F.3d 706 (9th Cir. 2001), discussed in the Opening Brief.

Appellees argue in opposition that the system of classification challenged in the instant action does not violate Equal Protection so long as it "rationally furthers a legitimate state interest," under the authority of Nordlinger v. Hahn, 505 U.S. 1, 10 (1992), and that such classifications are presumptively valid. First, Appellees apply an incorrect standard; the challenged classification "jeopardizes exercise of a fundamental right," id., and the Supreme Court has expressly recognized that selective prospectivity violates fundamental rights. See James B. Beam Distilling Co., 501 U.S. at 537-38, 548.

Although the appropriate test to apply given the fundamental rights at issue is not the rational basis test, as suggested by Appellees, Appellant contends that the application of nonpublication/no-citation rules certainly support the proposition that the rules are very much irrational. Even if Appellees are correct that the rational basis test is applicable, they themselves admit that the "presumption" of validity in such a test may be rebutted. It cannot be determined on a motion to dismiss for failure to state a claim.

The nonpublication/no-citation rules create a system of rampant selective prospectivity which imposes different application of law on cases which are factually indistinguishable. The rules violate the constitutional guarantees of equal protection and due process.

III. CONCLUSION

Appellant asks the court to restore the doctrine of stare decisis to its rightful operation within this judiciary. Under its guidance, judiciaries remain intellectually free at all times to opine that precedents be followed, distinguished, or overruled for reasons articulated by their judges and others. Appellant merely asserts that precedents may not be defined out of existence or ignored. By adopting Appellant's position, the opinions of the judiciary will again create a great body of uncensored, preserved, indexed intelligence that teaches us proper methods for living, appropriate resolutions of conflicts, identifies common errors so that they may be avoided by others, and preserves truth for a time when we are ready to recognize it. Like the scientific method it incorporates, it assists communal learning, and facilitates the development of all that is beneficial to civilization.

Appellant respectfully requests that the judgment of dismissal and the order of the district court granting defendants' motion to dismiss be reversed and that the matter be remanded to the district court for further action.

Respectfully submitted,

KENNETH J. SCHMIER

Attorney at Law

Date: November 8, 2001 By:____________________________

Kenneth J. Schmier

Counsel of Record for Appellant

MICHAEL SCHMIER