Justices Carve Exception to No-Cite Rule

The Recorder
By Kenneth J. Schmier and Michael K. Schmier
November 4, 2005

Fifty California appellate justices, half the bench, were caught violating the same court rule they insist on enforcing against litigants the rule prohibiting reliance on unpublished appeal decisions. The Judicial Performance Commission must now decide whether to sanction them.

The embarrassing violations of Rule 977(a) came to light when the Supreme Court Advisory Committee on Rules for Publication ("Werdegar Committee") released its preliminary report two weeks ago. A survey taken by the committee revealed that 58 percent of 86 justices responding rely upon "unpublished" appellate opinions. California's "no-citation" Rule 977 says unpublished opinions "must not be cited or relied on by a court or party."

California appellate courts have repeatedly rejected challenges to Rule 977. Rule 977 and other no-citation rules have spawned a great deal of controversy over the past decade. Many high ranking judicial officers have argued that no-citation rules must be rescinded.

"A lawyer ought to be able to tell a court what it has done," said new Chief Justice John Roberts Jr. Supreme Court nominee Samuel Alito Jr. has said that the three decade old experiment with no-citation rules has proved to "conflict with basic principles underlying the rule of law."


86 state justices were asked if they "ever rely on unpublished opinions when drafting your opinions"

Source: Administrative Office of the Courts. View PDF report.

Alito and Roberts are among those backing the adoption of Federal Rule of Appellate Procedure Rule 32.1, which, Alito wrote for the Federal Appellate Rules Committee, "abolishes such rules and requires courts to permit unpublished opinions to be cited."

Rule 32.1 is expected to be approved by the U.S. Supreme Court by May. In considering Rule 32.1 the federal rules committee called upon the Federal Judicial Center to investigate defenses of no-citation rules offered by Ninth Circuit U.S. Court of Appeals Judge Alex Kozinski and California Chief Justice Ronald George. It found their assertions to be without substance.

Nonetheless the California judiciary, its chief justice, its Judicial Council, the attorney general and, most importantly, the appellate courts, have resolutely defended the validity of Rule 977. To paraphrase the late Johnnie Cochran, if the rule is fit, the appellate bench too must submit.

But half are not submitting. A comment included in the Werdegar Committee's report said, "Most justices who rely on unpublished opinions indicated that they do so in order to consider the rationale or analysis used in a similar decision or to ensure consistency with their own rulings or with those in their district/division." Justices are deciding cases by relying upon unpublished decisions in the same way they would use decisions marked "Certified for Publication" except without citation. Apparently the admission escaped the attention of the committee's chair, Justice Kathryn Mickle Werdegar, and the members of her committee specially chosen by Chief Justice George.

We concur with Justices Roberts and Alito, the American Bar Association, the American College of Trial Lawyers, 21 states, including New York, Texas, Illinois, Michigan and New Jersey: rules like 977 must go. Yet, we are the ones who complained to the Commission on Judicial Performance that justices are violating Rule 977. Given the poor regard in which we hold Rule 977, why did we do so? We invoke the rule of law to attack it. The rule of law requires that law bad or good be applicable to all, including the appellate bench. If the appellate bench finds abiding by Rule 977 awkward, the rule of law forces the bench to change it. It is not acceptable that judges, who made and enforce the rule that forbids us to rely on unpublished decisions, secretly violate the same prohibition.

"Violating rules relating to court administration" constitutes judicial misconduct, according to the CJP. But is the CJP sufficiently independent of the judicial establishment to issue charges?

We are giving the CJP an opportunity to prove its rectitude.

The complaint is not frivolous; there is great harm in what the justices are doing.

Clandestine reliance upon unpublished decisions deprives litigants and attorneys of any opportunity to argue against their validity. Worse, these decisions have never been vetted before the tens of thousands of court watchers, incentivized by citability and stare decisis, who monitor published appellate decisions. Among these court watchers is vast expertise regarding all manner of issues that come before appellate courts. Vetting decisions before them serves as a realistic and vocal quality control mechanism for the enormous volume of appellate dispositions.

But court watchers, and justices too, have been misled by Rule 977 into believing unpublished decisions do not influence the determination of future cases, and rarely criticize them. Unpublished opinions lack the crucial dignity of standing for something. They are not supposed to count, except for the parties, who are often shocked, and many devastated, by their "result orientation." The warranty of rightness is stripped when unpublished opinions circumvent court watcher inspection. Yet the Werdegar Committee report reveals that these opinions are calcifying into decision-determining lines of secret precedent anyway.

Our strategy depends upon the CJP to enforce Rule 977. Will it? It's already waffling. Its executive secretary, Bernadette Torivino, responded to our complaint the day it was received. She wrote that the investigation will not go forward until we name the justices and "specify exactly, what action or behavior of each judge is the basis for your complaint." When 50 of 101 justices have admitted a serious violation in writings held by a Supreme Court advisory committee, it is hard to believe the CJP does not have enough information to move forward. Sounds like evasive bureau-speak to us.

We cannot identify the specific justices because, despite open government Proposition 59, the committee met in secret and will not release to us the survey responses or other records of their meetings. We have sued the Judicial Council to gain access, but the Judicial Council, represented by Morrison & Foerster, aggressively defends its questionable right to hold all of its policy-making subcommittee meetings in secret and to keep their papers from the public.

So we shall name all of the appellate justices and rely upon the CJP to use its investigative powers to defend the rule of law, and hope for the best.

Kenneth J. Schmier is the chairman and Michael K. Schmier the director of the Committee for the Rule of Law. They are the authors of "Has Anybody Noticed the Judiciary Has Abandoned Stare Decisis?" in the Journal of Law and Social Challenges and maintain www.nonpublication.com.