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Judges Debate Unpublished Opinions

By John Roemer

Daily Journal Staff Writer

SAN FRANCISCO - Chief Judge Alex Kozinski isn't shy about his deep dislike of a new federal courts rule allowing lawyers to cite unpublished opinions in their pleadings.

It's an esoteric dispute that nevertheless can arouse judicial passions.

"When I see someone do that I say, 'Aha, loser argument,'" Kozinski, of the 9th U.S. Circuit Court of Appeals, said Wednesday at a forum on the topic at UC Hastings College of the Law. "It tells you this guy's going to lose. Unless the rest of the argument is very strong, it just underscores the weakness of the position."

Arguing in favor of the right to cite unpublished opinions was a California appellate court associate justice, Mark Simons of San Francisco's 1st District Court of Appeal. Unlike federal courts, the California state court system forbids such citations and can even sanction lawyers who do mention unpublished opinions in their court papers.

"It would be very wise for California to reconsider," Simons said. "We should allow unpublished opinions to be cited not as precedent but for their persuasive value."

Moderating the discussion was former California Supreme Court Associate Justice Joseph R. Grodin.

At one point Simons suggested that he and Kozinski switch jobs so that each would be in tune with his court's view on the topic.

Kozinski, noting that Simons decides fewer cases and gets paid more - Simons makes $204,599 annually to Kozinski's $175,000 - joked that he might take him up.

Kozinski and many of his 9th Circuit colleagues campaigned hard, but unsuccessfully, against the rule change.

"Because unpublished opinions tend to be thin on the facts, and written in loose, sloppy language - and because there's about a zillion of them out there - they will create a veritable amusement park for lawyers fond of playing games," wrote Kozinski in a 22-page letter to the rulemaking committee.

Nonetheless, in 2006 the federal courts established appellate rule 32.1 telling judges they must allow citations to any unpublished opinions issued after Jan. 1, 2007. The federal courts rulemakers evidently agreed with Chief Justice John G. Roberts Jr.'s view that "A lawyer ought to be able to tell a court what it has done."

Known as memorandum dispositions, unpublished federal opinions are often terse announcements of the outcome of a case not intended to set a precedent. They make up almost 90 percent of the court's annual output. In the first nine months of 2009, the 9th Circuit published 665 precedential opinions and issued 4,844 memorandum dispositions.

"Binding precedent locks in the law for the circuit," Kozinski said, emphasizing the complexity that goes into drafting published opinions. "You are writing for the future. It is exceedingly time-consuming."

Memorandum dispositions, by contrast, are often written by law clerks and seldom discuss the facts of a case. "A memorandum disposition is a letter to the parties," Kozinski said, adding that they can be misleading if cited in other cases or contexts. "They are poison; they can really mislead."

Nevertheless, Kozinski conceded, the rule was adopted and so he and his colleagues have adapted. "We have ways of dealing with it: We just say less," he said.

He noted a memorandum he signed last November along with Circuit Judge Sandra S. Ikuta and former U.S. Supreme Court Associate Justice Sandra Day O'Connor, sitting by designation. It rejected a Las Vegas police officer's disability claims in five uninformative sentences. Williams v. Los Vegas Metropolitan Police Department, 2009 U.S. App.Lexis 25638 (Nov. 23, 2009).

"Try to cite that. Try to make something out of it," Kozinski challenged. "We have not said enough to make sense of it in any meaningful way."

Also present at Wednesday's forum was California attorney general candidate Michael K. Schmier, an Emeryville lawyer who has made a crusade of advocating for the right to cite unpublished state court decisions.

Schmier is trying to make a populist cause out of the arcane dispute by contending that unpublished opinions invalidating red light camera tickets would, if only they could be cited in future cases, help drivers snared by the devices.

Schmier handed out campaign flyers and schmoozed briefly with Kozinski. They did not discuss Schmier's civil lawsuit against the California Supreme Court over the issue.

Schmier and his lawyer brother, Kenneth, have now taken the battle to the 9th Circuit, following a district court's rejection of their petition to allow unpublished citations. U.S. District Judge William H. Alsup of San Francisco ruled against the Schmier brothers in 2009 because they had earlier lost three identical cases in state courts seeking citation rights, setting a negative precedent that bars further efforts. Schmier v. the Justices of the California Supreme Court, 09-17195.

In a further twist, in appealing Alsup's ruling Schmier has now moved for the disqualification of all judges in the 9th Circuit on the ground that they are adverse to his efforts. He wants fresh judges from other circuits designated to hear his case.

"It's tricky to explain this to the public," Schmier said Thursday as he recounted talks to Kiwanis and Rotary club meetings where listeners told him they were falling asleep listening to legal technicalities. "But folks are blown away when they finally understand how they can be affected."

As for the forum at Hastings, Schmier said optimistically, referring to the new federal rule allowing across-the-board citations, "I was trying to read Judge Kozinski as carefully as I could. I sense him coming around to see the wisdom of 32.1."



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