Nonpublication.COM is maintained by the Committee for the Rule of Law

Committee for the Rule of Law - Overview

The Committee for the Rule of Law is being organized by a group of concerned lawyers, academics, jurists, and other citizens to overturn California Rules of Court 976 -979 that allow appellate judges to "depublish" or withhold from publication selected decisions of their courts, and to prevent others from citing these never overruled decisions, even back to the very courts that made them. Currently 93% of the decisions of the California Court of Appeal and 85% of those of the 9th Circuit of the United States Court of Appeals are not published and may not be brought to the attention of any court as legal precedent or otherwise.

The Committee has already attracted an impressive list of directors and advisers including:

Directors:

Advisers:

The commitment of The Committee for the Rule of Law is to return the legal system to the discipline of strict account to the people and to the law. The Committee will do this by insuring that the doctrine of stare decisis[1]  is restored as a fundamental part of the Rule of Law to the federal judiciary and the judiciaries of the several states.

The function of the Committee has been made necessary because the federal judiciary and the judiciaries of many of the several states have adopted rules that allow appellate justices unfettered discretion to hide and/or withhold some or all of their decisions from the body of precedent by marking opinions "Not to Be Published in the Official Reports" of their jurisdictions and making rules that prohibit future citation for any purpose[2]  of decisions so marked and hidden. This constitutes "selective prospectivity" because the combination of the two steps prevents prospective application of a present decision. Selective prospectivity has been declared unconstitutional by the United States Supreme Court in James B. Beam Distilling Co. v. Georgia[3]  in the civil context and Griffith v. Kentucky in the criminal context[4] , as it obviously should be.

Nevertheless, 85% of the opinions of the United States Court of Appeals, and 93% of the opinions of the California Court of Appeal are now illegal to cite in any other court proceeding.[5]  Thirty years ago all decisions were published and were appropriate to cite as precedent. The erosion has been gradual. In no jurisdiction has this fundamental change in the adjudicatory process been approved by the vote of the people or the people's representatives. Nor has any court ever expressly found even one of these rules to be constitutional. Rather, courts go to great extremes to avoid answering the questions raised.[6] 

The Committee for the Rule of Law will educate the public, community leaders, the State Bar and the judiciary regarding the essential role stare decisis serves in the maintenance of a just, efficient, and respected legal system, and its central import to the whole democracy.

The Committee for the Rule of Law maintains that all verbatim reasoning of all decisions of the various courts of appeal are the property of the public, are part of the body of what Americans have considered to be law continuously since the writing of all American constitutions, is now our law, should be conveniently available to the public, and must be able to be used as precedent according to the well established standards embodied in the doctrine of stare decisis.

The basis of the Committee's reasoning includes but is certainly not limited to the following:

  1. It is not possible to fulfil the Constitution's promise of equal protection of law unless there exists a readily accessible institutional memory of the manner in which law is applied in every case brought to the highest court to which appeal is of right.
  2. The people cannot possibly control the content, manner, or uniformity, of application of their laws unless they have ready access to every questioned final determination of the application of law to any individual.
  3. The Supreme Courts of California and of the United States, having declared themselves not to be responsible for, nor generally interested in, correcting error in their subordinate appellate courts, leave no system for error detection and correction, or improvement in the law, until appellate court decisions are again published to the general public for criticism and correction is invited.
  4. There is no warranty of correctness inherent in any appellate court decision unless the reasoning of every decision must, by law, be used prospectively, according to the rules of precedents, to determine all cases of a similar nature unless the decision is distinguished or overturned.
  5. There can be no presumption that citizens know the law if the courts do not publish their announcements of the law.
  6. The power to determine which rules of law it will make generally applicable, and to extinguish rules of general application, without simultaneously resolving a case or controversy, are powers reserved to the legislature. The judiciary violates the doctrine of separation of powers when it usurps that function.
  7. Freedom of speech, the right to petition government for redress of grievances, and the concept of law itself have little meaning if courts are free to stifle rational argument based upon their own prior decisions.
  8. Persons subject to the jurisdiction of the Courts of the United States and the states are entitled to the very highest standards of justice, including the highest standards of due process and equal protection, that are humanly possible. Those standards should not be abrogated without the consent of the people. Nor should any court maintain a fiction misleading the public as to the level of service it provides, or the attention given to any case by its judges. The public should be fully informed as to all aspects of the determinative process. Secrets, unauthorized delegation of judicial power, and compromise or complacency born not of logical interpretation of law but of "collegiality" have no place in any judiciary in America.
  9. The people have never given their consent to any abrogation of the long established rules of stare decisis. Nor have the people consented to having appellate court cases by legions of clerks passing snippets of case content among themselves. The American people expect appellate matters to be determined by three judges each personally familiar with all aspects of an instant case.

The Committee for the Rule of Law will promote discussion of court rules that interfere with these principles in the hope that reason will prompt their rescission. The Committee maintains a website, www.Nonpublication.com as a compendium of information regarding its issues and activities. The initial members of the Committee have challenged the rules in the California court system. The California Court of Appeal has rejected the challenge and the California Supreme Court has refused to consider the issue. See decision. The United States Supreme Court has been petitioned for Certiorari.

FOOTNOTES

[1]  Stare Decisis: Let the decision Stand. The doctrine holds that until reversed, all prior decisions become a part of the body of law and can be cited as precedents. Return to Text

[2]  There are limited exceptions related to matters affecting the same parties. Return to Text

[3]  (1991) 501 U.S. 529, 111 S.Ct. 2439 Return to Text

[4]  479 U.S. 314, 107 S. Ct. 708 Return to Text

[5]  California Rules of Court: Rules 976-979. Return to Text

[6]  See People v. Valenzuela (1978) 86 Cal. App. 4th 950. An appellate department of the Superior Court found Rule 977 to be unconstitutional. The appellate court removed the case (brought it to themselves without appeal of either party), vacated the decision and resolved the case on other grounds so that the precedent regarding Rule 977 would disappear without trace of discussion. We only know of it because of the dissent of Justice Jefferson, whose dissent was probably published in order to get one of the other justices to go along with the disposition. 1 3