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unpublished opinions in their pleadings.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
"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Arguing in favor of the right to cite unpublished opinions was a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sanction lawyers who do mention unpublished opinions in their court
"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 "We should allow unpublished opinions to be cited not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"Because unpublished opinions tend to be thin on the facts, and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32.1 telling judges they must allow citations to any unpublished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Known as memorandum dispositions, unpublished federal opinions are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
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
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,
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."