Kozinski-itis: Hypocrisy in the Unpublished Opinions Controversy,
by L. Neuton

Print Page

The 9th Circuit's non-publication rule (Circuit Rule 36-3) undermines the Doctrine of Precedent -  the very foundation of Anglo-American law.  In a published case, Judge Alex Kozinski ruled it constitutional - assuring the public not to worry about its being abused.  Yet he, himself, abused the rule in two unpublished cases.  A rule he sets forth as law in one opinion is completely contradicted by his own ruling in another, nearly identical, case (article revised 2-9-04).

A disturbing trend among federal appellate courts is to promulgate rules which allow selective publication of opinions and  provide that the unpublished opinions do not constitute binding precedent and may not even be cited in unrelated cases.  In the Ninth Circuit Court of Appeals  such a non-publication/no-citation rule is Circuit Rule 36-3.

Rule 36-3 states that "Unpublished dispositions and orders of this Court are not binding precedent . . . [and generally] may not be cited to or by the courts of this circuit . . . .".

No-citation rules such as Rule 36-3 undermine the Doctrine of Precedent which is fundamental to our judicial system. 

A similar no-citation rule was struck down as unconstitutional by the Eight Circuit Court of Appeals in  Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000). 

Judge Alex Kozinski

However, in the Ninth Circuit Court of Appeals, in Hart v. Massanari, 266 F.3d 1155 (9th Cir. 09/24/2001), Judge Alex Kozinski ruled that Circuit Rule 36-3 was constitutional.  

Judge Kozinski argues that "Judges have a responsibility to keep the body of law 'cohesive and understandable, and not muddy . .  the water with a needless torrent of published opinions' " (Hart v. Massanari, 266 F.3d 1155 (9th Cir. 09/24/2001)).  This is a noble-sounding goal until you scratch the surface and see what is really going on. 

In reality, Judge Kozinski  wants freedom to achieve any judicial result he likes without being bound by precedent.  This will be shown below.  But first let's take a closer look at the concept of the no-citation rule.

In an article titled, "Unpublished Opinions: A Comment."  1 Journal of Appellate Practice and Process 219 (Summer, 1999), Judge Richard S. Arnold, of the United States Eighth Circuit Court of Appeals, discussed his concerns with his Circuit's selective publication/no-citation rule.  His article is discussed in an article at the web site of the North Carolina State Bar,  http://www.ncbar.com/Journal/journal_7,2.asp , as follows:

"First he found it startling that the rule renders judges "perfectly free to depart from past opinions" so long as those opinions are unpublished-in violation of the doctrine of precedent. This is particularly bothersome when the judges are the sole decision maker regarding whether or not an opinion is published. Judge Arnold observed that every case has "some" precedential value and so is publishable under the rules. There is a danger, then, that if "after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug." The issue is delicate, however, and Judge Arnold observed: "I'm not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings.".

Judge Arnold does not know of judicial abuse in this regard ever occurring.  However, as shown below, not only has such abuse occurred, but the abusing judge is none other than the champion of the 9th Circuit unpublishing rule (Circuit rule 36-3) himself (Judge Kozinski)! 

Abuse of the rule coming from the very judge who re-assures us in a published opinion not to worry about such abuse is something more than blatant hypocrisy. 

 This is a type of corruption - a corruption which legimizes a policy of corruption and which we have labeled "Kozinski-itis". 

Judge Kozinski's opinion (Hart v. Massanari) was written in response to the 8th Circuit case (Anastasoff v. United States):

". . . Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000).  Anastasoff, while vacated, continues to have persuasive force. . . . It may seduce members of our bar into violating our Rule 36-3 under the mistaken impression that it is unconstitutional. We write to lay these speculations to rest.".

" . . .Modern legal scholars tend to justify the authority of precedents on equitable or prudential grounds.  By contrast, on the eighteenth-century view (most influentially expounded by Blackstone), the judge's duty to follow precedent derives from the nature of the judicial power itself.  As Blackstone defined it, each exercise of the "judicial power" requires judges "to determine the law" arising upon the facts of the case. 3 Blackstone, Commentaries 25. "To determine the law" meant not only choosing the appropriate legal principle but also expounding and interpreting it, so that "the law in that case, being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule . . .." 1 Commentaries 69.  In determining the law in one case, judges bind those in subsequent cases because, although the judicial power requires judges "to determine law" in each case, a judge is "sworn to determine, not according to his own judgments, but according to the known laws. [Judges are] not delegated to pronounce a new law, but to maintain and expound the old." Id. The judicial power to determine law is a power only to determine what the law is, not to invent it. Because precedents are the "best and most authoritative" guide of what the law is, the judicial power is limited by them. Id. The derivation of precedential authority from the law-declaring nature of the judicial power was also familiar to the Framers through the works of Sir Edward Coke and Sir Matthew Hale. See 4 E. Coke, Institutes of the Laws of England 138 (1642) (a prior judicial decision on point is sufficient authority on a question of law because "a judicial decision is to the same extent a declaration of the law."); 1 Coke, Institutes 51 (1642) ("[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion."); Sir Matthew Hale, The History of The Common Law of England 44-45 (Univ. of Chicago ed., 1971) ("Judicial Decisions [have their] Authority in Expounding, Declaring, and Publishing what the Law of this Kingdom is . . ..").".

"In addition to keeping the law stable, this doctrine is also essential, according to Blackstone, for the separation of legislative and judicial power. In his discussion of the separation of governmental powers, Blackstone identifies this limit on the "judicial power," i.e., that judges must observe established laws, as that which separates it from the "legislative" power and in which "consists one main preservative of public liberty." 1 Blackstone, Commentaries 258-59. If judges had the legislative power to "depart from" established legal principles, "the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions . . .." Id. at 259.".

"The Framers accepted this understanding of judicial power (sometimes referred to as the declaratory theory of adjudication) and the doctrine of precedent implicit in it. Hamilton, like Blackstone, recognized that a court "pronounces the law" arising upon the facts of each case. The Federalist No. 81, at 531 (Alexander Hamilton) (Modern Library ed., 1938). He explained the law-declaring concept of judicial power in the term, "jurisdiction": "This word is composed of JUS and DICTIO, juris dictio, or a speaking and pronouncing of the law," id., and concluded that the jurisdiction of appellate courts, as a law-declaring power, is not antagonistic to the fact-finding role of juries. Id. Like Blackstone, he thought that "[t]he courts must declare the sense of the law," and that this fact means courts must exercise "judgment" about what the law is rather than "will" about what it should be. The Federalist No. 78 507-08. Like Blackstone, he recognized that this limit on judicial decision-making is a crucial sign of the separation of the legislative and judicial power. Id. at 508. Hamilton concludes that "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them . . .." Id. at 510. . . .".
 . . . . . . . . . . .

"To summarize, in the late eighteenth century, the doctrine of precedent was well-established in legal practice (despite the absence of a reporting system), regarded as an immemorial custom, and valued for its role in past struggles for liberty. The duty of courts to follow their prior decisions was understood to derive from the nature of the judicial power itself and to separate it from a dangerous union with the legislative power. The statements of the Framers indicate an understanding and acceptance of these principles. We conclude therefore that, as the Framers intended, the doctrine of precedent limits the "judicial power" delegated to the courts in Article III. No less an authority than Justice (Professor) Joseph Story is in accord. See his Commentaries on the Constitution of the United States §§ 377-78 (1833):    "The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.".

Along comes Judge Kozinski to overthrow this foundation-stone of Anglo-American law. 

First, he mis-states Anastasoff :

"According to Anastasoff, exercise of the"judicial Power" precludes federal courts from making rulings that are not binding in future cases. Or, to put it differently, federal judges are not merely required to follow the law, they are also required to make law in every case.".

No,  just the opposite.  Anastasoff doesn't say that judges are required to "make law in every case", at all.  They are to "determine the law in every case" based only on precedents to "avoid an arbitrary discretion in the courts".  See above:

"The judicial power to determine law is a power only to determine what the law is, not to invent it.".

Judge Kozinski attacks the reasoning of Anastasoff by arguing that Article III of the Constitution does not limit the power of the federal courts in "how they conduct their business".  He states that Anastasoff "focused on one aspect of the way federal courts do business--the way they issue opinions--and held that they are subject to a constitutional limitation derived from the Framers' conception of what it means to exercise the judicial power.".

No.  This again mis-states Anastasoff.  Anastasoff's focus is not on the way courts issue opinions. It's on the very nature of the judicial function itself.  Whether a judge can arbitrarily invent his own law and issue capricious decisions or whether he is bound by precedent.  It goes to the very definition of what is "judicial power" not simply "one aspect of the way federal courts do business".

It may be worthwhile here to see what Judge Arnold, in the article cited above, wrote in this regard:

"Article III of the Constitution of the United States vests "judicial power" in the Supreme Court and in such inferior courts as Congress may from time to time ordain and establish. We can exercise no power that is not "judicial." That is all the power that we have. When a governmental official, judge or not, acts contrary to what was done on a previous day, without giving reasons, and perhaps for no reason other than a change of mind, can the power that is being exercised properly be called "judicial?" Is it not more like legislative power, which can be exercised whenever the legislator thinks best, and without regard to prior decisions? In other words, is the assertion that unpublished opinions are not precedent and cannot be cited a violation of Article III?".

Judge Kozinski argues essentially that we shouldn't worry about unpublished decisions not having precedential effect (since the published ones still do).

"We believe that Anastasoff overstates the case. Rules that empower courts of appeals to issue nonprecedential decisions do not cut those courts free from all legal rules and precedents; if they did, we might find cause for alarm. But such rules have a much more limited effect: They allow panels of the courts of appeals to determine whether future panels, as well as judges of the inferior courts of the circuit, will be bound by particular rulings. This is hardly the same as turning our back on all precedents, or on the concept of precedent altogether.".

This sounds almost reasonable until you look at some of Judge Kozinski's own (unpublished) opinions. 

A rule he sets forth as law in one opinion is completely contradicted by his own ruling in another, nearly identical, case.  

He can get away with this because the opinions are unpublished.  There is, from Judge Kozinski's own opinions great cause for alarm.  Having one law for one litigant and another law for another litigant contradicts one of the most fundamental foundation stones of American law - "equal Justice under Law".  These words - which are even carved on the façade of the United States Supreme Court building - are easily brushed aside by Judge Kozinski because his opinions are unpublished.   

The intellectual dishonesty of Judge Kozinski rises above simple hypocrisy.  It is a policy-type corruption of our judicial system - something which I label as "Kozinski-itis" (although Judge Kozinski is not the only judge suffering from this malady). 

The cases I am referring to are the following:

In re Neuton (9th Circ. 1998) Case No. 98-55030 and Wright v. United Airlines (9th Cir.1994) Case No. 94-15282. 

You'll have a hard time finding these cases in the law library because they are both unpublished. I was able to find the Wright case through the power of an internet search (using VersusLaw, http://www.versuslaw.com - whose database includes unpublished cases). 

In the Wright case, an employment discrimination claim was the underlying issue. The district court ruled that res judicata barred Wright from pursuing his claim in federal court because the action had been dismissed in state court under California Civil Procedure Code §391 et seq (California's so-called "vexatious litigant" statute).  Res Judicata, like collateral estoppel, is a doctrine that bars claims that have been litigated previously.  In Wright, Judge Kozinski ruled that the vexatious litigant statute itself (specifically sec. 391.2) means exactly what it says:

"No determination made by the court in determining or ruling upon the motion shall be or be deemed to be a determination of any issue in the litigation or of the merits thereof.".