February 23, 2009

Honorable Ronald M. George

Chief Justice of California and

Chairman  of the California Judicial Council

350 McAllister Street

San Francisco, CA 94102

Re: Citation of Unpublished Opinions

Dear Chief Justice George:

I write to follow up on Assemblymember Jared Huffman's September 5, 2008 letter to you about whether California should follow the federal courts' 2006 policy change which ended the prohibition forbidding citation of unpublished appellate decisions (www.nonpublication.com/huffman090508.pdf).  I join Assemblymember Huffman in looking forward to reading your response to his questions and some further queries as follow:

1.         Why haven't you written Assemblymember Huffman to respond to the questions he posed in his September 5, 2008 letter to you, will you write responses to him and when?


2.         Although the meetings of the federal appellate rules committee, chaired by now United States Supreme Court Justice Samuel Alito, were open to the public, why was the public not permitted to attend the Werdegar Committee meetings?


3.         Will you continue to bar members of the public from attending future meetings of the Werdegar Committee or any other committees you may appoint to consider citation of unpublished appellate opinions, and if so, why?  Why isn't there a public interest and right to attend these meetings?


4.         Why were members of the Werdegar Committee told not to speak with members of the public?  


5.          More than ten years ago, you called unpublished opinions "chaff" and "essentially insignificant."  And, despite the 2006 sea change, which restored the right to cite unpublished opinions in all federal and many state jurisdictions without reported problems, you nevertheless reaffirmed this same position for a June 2008 Recorder article:


"Opponents of total publication, including California Chief Justice Ronald George, have pointed out that because most appellate rulings contain no precedent, they would just add clutter to an already opinion-filled world…that a majority of appellate rulings simply 'apply basic law to standard facts, and they are not going to illuminate anything for anybody'"… Appeal Courts Publishing More, Barely  by Mike McKee, The Recorder, June, 27, 2008; www.nonpublication.com/mckee.htm


However, uncitable decisions often appear to many legal scholars and others to be far from routine, insignificant and unimportant.  Professor Lawrence Solum wrote:

"I find no citation rules inexplicable. I know a few areas of law in great depth (e.g. have read several thousand opinions). In those areas, it is my experience that very frequently, the unpublished opinions are the ones that address the important unanswered questions of law & the published opinions simply repeat the conventional wisdom. This pattern would appear to turn the purpose of designating opinions as unpublished on its head!"  

Posted by Lawrence Solum, University of San Diego Law School, to Stephen Barnett (Jan. 14, 2004) at  http://lsolum.blogspot.com/2004_01_01_lsolum_archive.html#107401877288467498 (last visited July 18, 2008).  How do you evaluate the changes in the federal and many state jurisdictions?  What evidence do you have that unpublished decisions do not address important questions of law, and do not illuminate anything?  What are the characteristics of opinions that "do not assist in the orderly development of the law" and/or are routine?  


6.         The number of times cases are referred to in subsequent cases is commonly used by lawyers and judges as traditional indicia of the currency, applicability, strength or weakness of the earlier cases' doctrines and principles. Unpublished opinions make many references to earlier case decisions. Forbidding citation of unpublished opinions in later cases skews important statistical records as to how many times earlier cases were cited. How does this not distort our evaluation of the strength or weakness of the legal rules used in these uncitable cases?  With such distortion, how can the people safely rely and depend upon rules to follow in order to arrange their affairs properly, and how can the Legislature fulfill its responsibilities to monitor this process accurately?

7.        Do you still contend that the requirements of the California Constitution that all opinions of the Court of Appeal, whether ordered published or not, be in writing with reasons stated, make lifting California's ban on citation of unpublished opinions unworkable, and if so, how?

8.         Do you still contend that the larger size of the California judiciary, compared to the federal judiciary and other large state judiciary systems that have rejected no-citation rules, make lifting California's ban on citation of unpublished opinions unworkable, and if so, how?  How could the larger size of the California judiciary not require more coordination, accountability, communication, transparency and predictability, all provided by citation, than smaller judicial systems?

9.         The report of the Werdegar Committee discussed new rules about when Court of Appeal judges should order publication of the decisions they author, and admitted that the committee's chosen verbiage intentionally and "carefully used 'should', and not 'must' (in its new Rule §8.1105) in order to retain some discretion on the part of the justices [to make an opinion unpublished, and thus uncitable] if they conclude that the opinion does not assist in the reasoned and orderly development of the law." [Revised Recommendations for Amendment to California Rules of Court, Rule 976, (Werdegar Committee), Spring 2006, page 13].  Regarding each of the criteria for publication set out in the new Rule 8.1105 (effective April 1, 2007), what are the characteristics of opinions that "do not assist in the reasoned and orderly development of the law?"  Why would each characteristic not be useful in setting points of law?  

10.       When asked the extent to which your mandate to the Werdegar Committee restrained it from studying the impact of the citation prohibition, you responded that your "court did not bar the Werdegar Committee consideration of whether rules prohibiting citation to unpublished cases were in some way in violation of free-speech rights." As Assemblymember Huffman had not asked you about a violation of free-speech, your answer is so specific, and unresponsive that it appears to admit you intended a general restraint against studying the citation prohibition, but not necessarily detailed to the particular aspect of free-speech. At the least, the Werdegar Committee inferred a restraint. Justice Werdegar said "…the committee was not asked to consider the question of citation or publication of all opinions…"  Moreover, Justice Werdegar's committee recommended that the Supreme Court consider asking an advisory committee to evaluate several additional issues in the future including the issue of citation to unpublished opinions which was not contained in the committee's charge. When will you issue a new mandate?  How will you ensure that the new mandate unambiguously provides for full review of conforming California to the federal courts' 2006 policy ending the prohibition on citation?

11.       What are the reasons for your claims in a 2004 letter to Justice Alito's committee that "the constitutional provisions on which the whole scheme is based would be undermined" [by proposals to end the prohibition against citation of unpublished appellate opinions] (http://www.secretjustice.org/pdf_files/comments/03-AP-476.pdf , Feb. 13, 2004), and what is your response to the reasons the Alito committee gave for rejecting your claims?

12.        What are the functions of non-judicial (law clerk/staff attorney/court clerk) and judicial personnel, and their interactions in preparation of "routine" appeal and writ decisions?   What quality control mechanisms assure the public that all matters before the appellate courts receive the thorough attention of three judges resulting in the constitutionally mandated written decision(s) with "reasons stated", and that those reasons stated accurately reflect California law as used by the judges to resolve each case?  How, if at all, would ending the prohibition on citation impact each?   What prevents the no-citation rule from being used to facilitate evasion of this standard of judicial care?

13.          How is it appropriate, non-conflicted and ethical for judges of the California courts, and for the Judicial Council of California to lobby the Legislature, the executive branch and interest groups for any purpose whatsoever, including to resist proposed court rule changes to end the prohibition on citation, to advocate against the interests of the voters and taxpayers, and to use publicly paid time and tax monies to do so?

14.       How can you refute the notion that your resistance to ending the California ban on citation of unpublished opinions appears to be part of your larger pattern of denying the people the right to use public documents?

15.       Another procedure you use that denies the people use of public documents is depublication of opinions previously ordered published. For each of the years from 1970 to date, and for each of the months from the beginning of 2006 to date, how many opinions published by the Court of Appeal have been ordered "depublished" by the Supreme Court?   What percentage of depublication requests to the Supreme Court was granted, for whom, and for what reasons?   What were the reasons proffered to support the requests?  What is the rationale to justify the depublication policy?   When all the other state and federal jurisdictions in the country do not depublish, what are the reasons California is different and does depublish? 

16.       You likewise denied the people the right to use publicly filed documents in a political campaign. In the 1998 election year cycle, you, and three other justices were running for retention for twelve year terms. The California Primary Election Voter Guide was mailed at state taxpayer expense to more than sixteen million registered voters. Although you permitted the printing therein of the contact information and a photograph of a Democratic candidate for attorney general, why did you not allow printing of the candidate's political campaign philosophy and issue statement, which follows?  Why did you not fulfill your ethical duty to disqualify yourself for the appearance of bias from the obvious conflict of interest?  How and for what reasons could the California Commission on Judicial Performance properly dismiss ethics charges against you, and your then fellow candidate-colleagues based on this plain appearance of bias?  What reasons can you see that there was not a disqualifying conflict found between you and the Commission, three of whose members are judges you oversee and appoint?


"The California Supreme Court has caused a major flaw undermining our legal system. I want it fixed now. Appellate court rulings are no longer published for all to see. Secret rulings do not serve as future guidelines, even in the same court. They enable judges to ignore the law, knowing this injustice is hidden. Corruption and arrogance fester at every level because precedent is destroyed. Feedback to the public, necessary to prevent abuses, is prevented. I will ensure that this and other justice flaws are fixed, not buried. The foundation of law and order is order under law." 


[(http://www.primary98.sos.ca.gov/VoterGuide/Statements/atg.htmSupreme Court (Case No. S068494, filed 3/06/98);  (http://appellatecases.courtinfo.ca.gov/search/case/disposition.cfm?dist=0&doc_id=68347&doc_no=S068494);

Sacramento Superior Court (Case No. 98CS00598, filed 03/03/98; Judge Ronald Robie): https://services.saccourt.com/indexsearchnew/CVFLPRDetail.aspx?Details=CV|98CS00598|schmier|01/01/1998|12/31/1998|Name|Asc|)]


17.       You similarly denied the people the right to use public documents posted on internet website www.NonPublication.com by forcing their deletion from the website. The Judicial Council of California, which you chair, defended a 2007 lawsuit claim that it barred an attorney entrance to one of its meetings in violation of the open meeting provisions of the Bagley-Keane Act.  In the settlement of that case, you and your attorneys demanded that court filed public documents from the case which had been posted on the website be expunged from the website, as a condition to waiving an award of approximately $10,000 attorneys' fees sanctions for filing the lawsuit in a supposed improper venue.  Why did you force the removal of the documents’ from the website? How did the public interest benefit more, or at all, from giving up this money, payable to the public treasury, to buy the erasure of these court-filed public documents from the website?

[Judicial Council of California (Def.), Santa Clara Superior Court Number: 1-05-038505] http://www.sccaseinfo.org/pa6.asp?full_case_number=1-05-CV-038505]

18.        What are all the reasons you have, if any still remain, that Rule 8.1115(a) should not now be revoked, and that the California rule should not conform to the (December 1, 2006) federal Rule 32.1? 

I am looking forward to hearing from you soon.