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prohibiting reliance on unpublished appeal decisions.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"unpublished" appellate opinions.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"no-citation" Rule 977 says unpublished opinions "must not be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no-citation rules must be rescinded.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."
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FLOUTING THE LAW 86 state justices were asked if they "ever rely on
unpublished opinions when drafting your opinions" |
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unpublished opinions to be cited."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.