On December 5, 2000, Schmier v. United States Court of Appeal for the 11th Circuit (4:00cv457-RH) was filed seeking an injunction to prevent the 11th Circuit Court of Appeals from ruling on matters including the presidential race in an "unpublished" decision that will not be precedent for the future, (Rule 36-2), or from failing to regard pertinent prior decisions of that court as precedents, which that court now permits itself to do.

Similarly decisions of the Florida State courts should be suspect. While the Florida Appellate Courts "publish" all of their decisions, vast numbers are decided with simply the words "Per Curiam - Affirmed." According to Judge Arnold's decision in Anastasoff v. United States of America, it is what courts have actually done that is precedent, so if an election case was affirmed, the decision of the trial court would be the law of Florida. The problem is that there is no index of cases so decided, so there is no easy way to find out what the courts have regularly decided Florida Election law is. Perhaps the press could ask for all who have knowledge of such cases to report them to info@nonpublication.com.

We hope to point out that the precedents set in the little matters often decide big matters later on, that this mechanism requires that insignificant people and cases of little media interest be decided with the same proper care and respect given to cases of public attention. That protects individuals when standing alone before our courts, allows the society to debate the right resolution of issues before such issues pose questions of nationwide impact, and leaves the whole society with guidance when huge matters need to be decided.

Stare decisis satisfies most citizens of justice even when a ruling is at bottom arbitrary because all others will be treated the same way.

We hope that raising the issue in such a highly publicized context may cause some to think how much more important stare decisis is to citizens when they stand before the judiciary and no one else appears to be interested, and interest the people in seeing to it that the vast interference with the Rule of Law posed by the novel practice of deciding appellate matters outside the system of precedent be eliminated. Mike Schmier is in Florida. Ken Schmier can be reached at 510-652-6086.

See the text of the complaint here.