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APPELLATE PRACTICE • May. 10, 2004
People Deserve the Right to Cite From Unpublished Decisions

        Forum Column

        By Mike Schmier

        Have you been burned by an unpublished appellate opinion that ignored well-established rules of law? Did you know that, rather than publishing all, as in the not-so-distant past, today 90 percent of appellate decisions are ordered "Not to be Published" by the judges who wrote them, and the rules of many courts forbid you to cite them?
        The U.S. Appeals Court Advisory Rules Committee, after Congressional Hearings, voted 7-1 in April for proposed Federal Rule of Appellate Procedure 32.1 to stop federal rule prohibition on citation of unpublished decisions.
        Opposition comes primarily from the judiciary, mainly in California, and those solicited by its pressure. In California, representatives of the state Supreme Court, Court of Appeal and Judicial Council, all to some extent controlled by Chief Justice Ronald George, met with members of the Senate Judiciary Committee to kill the state counterpart of the federal rule change, SB1655, by state Sen. Sheila Kuehl, to permit citation of unpublished appellate decisions.
        George met with Kuehl on April 12 and agreed to appoint a "study" committee. He said, "There's no question about considering unpublished opinions to be cited. The only matter I agreed to study was whether or not the criteria that guide the courts of appeal on whether or not to publish opinions need to be modified in some way and if the courts of appeal are properly applying the criteria."
        The next day, the federal Rules Committee overwhelmingly rejected George's letter of opposition and those from hundreds of George's allies.
        Is there another reason for this judicial opposition, beyond the reasons given by the judges but rejected by one of the highest committees of their own colleagues? Shouldn't the people decide on their rules without interference from members of the judiciary? Aren't the judges overstepping their proper role by their intensive lobbying to prevent restoring to the people their fundamental right to cite? Shouldn't the judges stay out of politics and administration, and let the people decide on the rules and procedures under which the people will have to live?
        The U.S. Department of Justice, the solicitor general, the Social Security Administration and the American Bar Association oppose judicial prohibition against our right to cite, as do the states of New York, Texas, Michigan and others. Why then do some judges, led by the California judiciary, lobby so hard to prohibit us from citing?
        The judges who oppose ending their rule prohibiting citation claim that such a step would increase their work load and costs. The federal Rules Committee rejected these claims, too, notwithstanding the present sensitivity of the costs issue, well known to the California Legislature.
        Many have wondered whether the judicially led opposition simply dislikes the accountability carried by citation?
        Forbidding citation eviscerates the salutary effects of stare decisis, including its subtle pressure encouraging judges to do their very best. Decisions without this accountability allow randomness and unpredictability to reign. Restoring our historical right to cite unpublished appellate-court decisions, now forbidden to us, will do more than return our use of precedent to avoid or invoke civil or criminal liability.
        The essential integrity of our justice system and our form of government are at stake. Citation is at the center of democracy's nerve system. In addition to facilitating equality before the law, it enables us to identify legal issues in need of resolution.
        The basis of the equal-protection guarantee is that the power of our law applies to everyone, affecting all those similarly situated in the same way. The requirement that a judicial result must be good law for all is the essential warranty that it is good law for one.
        We do not want judges to be able to merely hand out results without principled reasoning applicable to all. Citation ensures applicability to all. Otherwise, lawyers feed on randomness by tweaking it to their clients' favor. The party unable to match the manipulation loses. This is walking the gantlet. A coin toss would be much fairer.
        Under present court rules, no case is required to be published, even cases that change the fundamental course of the law. In April, Judge Anthony Kline of the 1st District Court of Appeal, who has denounced publicly the court rules empowering unpublished decisions, wrote a panel decision reversing the trial court in resolving an important, significant, complicated, public dispute involving many different Marin County governmental agencies and citizens as well as federal and state law.
        Despite its media attention, importance, new interpretations of law and resolution of conflicts in law including with the trial court, Kline ordered the case "Not Published." It can't be cited. There is no precedent.
        Even if the same trial judge gets a similar case back again, as he well may, will he again hold as he felt right originally when he now knows he likely will be reversed if the case gets to Kline again on appeal, or does he follow Kline even though he and the future litigants are forbidden to mention Kline's decision? Isn't this "secret law"? The wheel has to be re-invented from scratch. Talk about costs - how about a direction so that citizens can plan and order their affairs according to the requirements of law? Unpredictability and randomness reign.
        If a judge who disfavors the rules forbidding citation does not order a case of such public importance and interest published, there is little hope for the equal-protection warranty from most of the other judges who, unlike Kline, fear to breach the anti-citation position set by the chief justice.
        On March 27, the State Bar voted to take no position on the citation debate. But our State Bar should take the lead to support efforts to remove court rules that do not allow us to cite.
        Like umpires in professional baseball, judges should call balls and strikes, safe and out. They should not spend their time and our taxpayer money on conflict-laden administration and lobbying, especially for rules against our interests. They should just decide cases. Their activities should be televised and available on instant replay, so that we can all ensure they are calling them right.
        Tension and fear are created when rectitude is sacrificed for efficiency or anything else. And fairness is fundamental to peace and stability.

        Mike Schmier is the dean for academic affairs and professor of law at East Bay Law School. He practices labor and employment law in Emeryville and is a candidate for the State Bar board of governors.