Peter G. McCabe, Secretary
Committee on Rules of Practice and Procedure
of the Judicial Conference of the United States
Thurgood Marshall Federal Judiciary Building
Washington, D.C. 20544
John K. Rabiej, Chief
Rules Committee Support Office
Administrative Office of U. S. Courts
Thurgood Marshall Federal Judiciary Building
Washington, D.C. 20544
April 2, 2001
To the Committee:
As a citizen and not as a lawyer, I protest that your rules revision does not address the serious issue of non-publication/no-citation rules applied in varying ways among the circuits. The people depend upon you as its representatives to safeguard our concepts of liberty, which will only exist so long as we have equal justice under law.
I have learned from Mr. Rabiej that the committee understands the tremendous significance of this issue but has determined to ignore it because the presiding justices of several circuits complain of workload problems. Balderdash.
The committee needs to carefully rethink this issue for it has the last clear chance to save the rule of law, and all that it offers humankind, from those who would destruct it in the name of unproved expediency. Be warned: Do not confuse the lack of knowledge of no-citation rules and the concomitant decline in quality of appellate work among the general public for approval. The public understands the doctrine of precedent and has been taught the appropriate manner by which appellate courts operate in required civics classes.
No one, it seems, and certainly not the judiciary, has taken on the responsibility of engaging the public to either educate them about, or debate the wisdom of, these rules.
So unknown are these rules that five out of five former United States Attorneys General attending a recent event at Hastings Law School were unaware of their existence. Senators Rockefeller, Wyden, Boxer and Feinstein were not aware. Nor were any of the entire congressional delegation coming from northern California. Even the general counsel of the House Judiciary Sub Committee on Courts and Intellectual Property was not aware of no-citation rules. Graduating Harvard, Boalt, Hastings, and Chicago Law School students had never been taught about theses rules! This is not to say others are aware of these rules, only that they have not been asked.
But it will become known, because our committee, among other dedicated citizens, will make it known. Already we have succeeded in getting bills before legislatures, and we are informed that the Congress will look into the matter this term.
As one who has spoken to hundreds of community groups regarding these rules, I can tell you that members of the public, from immigrant cab drivers to brain surgeons are uniformly horrified upon learning of no-citation rules, as they should be. Apparently only judges and a few lawyers so concerned with easing the burdens of judges, or just agreeing with them, or lessening a perceived malpractice liability, are comfortable overlooking the manifest protection of the public afforded by publication and citation.
Preliminarily let me observe that the opposite of justice is not injustice, it is expediency. No one intends injustice. Persons, whose actions seem unjust from a neutral perspective, only intend to expediently advance their own agenda over the rights of others, which they weigh to be less important. At bottom, this is the argument with which the judges have prevailed upon the committee, thereby earning the committee's complacency in the destruction of stare decisis, and with it, equal protection and the rule of law.
Committee members would do well to recall Queens Bench v. Dudley and Stevens. Necessity created by 28 days without food in a life boat did not warrant the taking of human life, for, even though the judges themselves doubted being able to withstand such compelling circumstances, the law must stand to encourage lawful conduct. So it should be reckoned with publication and citation. The law must stand to encourage judges to anticipate every circumstance, every perspective, every criticism, to solicit other observations of the same, and to criticize each other, all in order to assure each individual the height of justice humanly possible. We simply cannot ever attain the forward promise of Justice for All - liberty as we know it - unless we have justice for each. The judges of your committee would have us aim below this mark, making its achievement not only unlikely, but impossible.
Economic feasibility is not for your committee to debate. President Kennedy pledged for us: "we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, to assure the survival and the success of liberty". The job of the judiciary is to provide the discipline of ideals to our system. They must tell us what is needed to do the job right, and if they cannot get our attention, then they must refuse to do the job wrong, at least until we affirmatively order a new method. What the judiciary may not, and must not, do is to sell out our values without engaging our attention.
As a nation, we go to war for justice, at the expense of human life. Therefore justice is more important to us than human life itself. That being so, the "necessity" defended by the workload the appellate judiciary cannot support the renunciation of stare decisis and the rule of law.
Here are twenty questions the Committee for the Rule of Law has endeavored to have answered by the judiciary. But Court actions asking these questions have been dismissed to avoid them, not in the interests of the people, but rather in the interest of "collegiality", whatever that may be.
But perhaps there are persons among your committee who would candidly and publicly address them. To find out, I formally request, from the committee itself, a response to each of the following:
1. How can equal protection of law exist where courts have no institutional memory of the manner in which the law is applied in similar cases?
2. How can our courts learn from the mistakes of others, or keep abreast of changing conditions in the community generally, absent publication of decisions?
3. How can the public be certain that its judges correctly and honestly state the law when rulings and opinions are not made public for review and criticism?
4. To what effect is the doctrine of equal protection of the law if law can be applied to an individual without immediately causing others that would be affected to complain on that individual's behalf when the rule is unconstitutional, illegal or unjust?
5. Does the doctrine of stare decisis become totally inoperative only when our courts refuse to allow citation of 100% of appellate opinions, or is it made inoperative when any decision is removed from the control of the law of precedents?
6. Are no-citation rules consistent with freedom of speech and the right to petition government?
7. Are unpublished decisions selectively prospective?
8. By what mechanism is the Rule of Law to be invoked to control the caprice of judges if judges can make decisions of limited prospectivity?
9. How can the people govern themselves if the manner in which its laws are applied is not reported back to them for correction?
10.Is it just that a criminal defendant be prevented from informing a court that an appellate court decision exists that would - or even might- exonerate?
11.How can individuals be presumed to know the law if court decisions are not published?
12.Who corrects error of the appellate court contained in unpublished opinions?
13.How does one bring a test case if the judiciary retains the option to defeat its use as precedent?
14.If judges cannot do their jobs properly should they not object publicly, but rather engage in wanton negligence? Will the judiciary approve other workers, trades and professionals operating to this standard?
15.Whose word is acceptable to determine the extent of deviance from existing law in unpublished opinions?
16.Where a litigant has been denied a request for rehearing for error in the law, and where rules of law are announced without citation of existing authority and/or deviate from the common understanding of the law, and where a request for publication of the decision is also denied, should the resolution of his cause in an unpublished opinion be suspect of denial of equal protection, error, corruption, or tyranny?
17.How are the various organizations of the public - i.e. Law Schools, Community Organizations, Industry Organizations, Academics, Politicians, Journalists and Commentators, etc, motivated to review unpublished opinions or join in a call for review when the questioned opinion is unciteable and not law for the general community?
18.What warranty of correctness inheres in the unpublished unciteable decision for the benefit of the litigant burdened by an appellate court decision?
19.How shall members of the public learn law and justice if they are not involved in the process?
20.How will we ever simultaneously have Liberty and Justice for All, if there exists no mechanism for the learning, perfecting and embracing of an infinitely granular and just law among our people?
Each of the members of your committee has sworn an oath to protect and defend the Constitution of the United States. Non-publication and no-citation rules hold grave constitutional implications under James B. Beam Distilling v. Georgia (selective prospectivity), Legal Services Corporation v. Valenzuela (freedom of speech), and Anastasoff v. United States of America (Article Three and the essence of the Rule of Law). Given the oaths freely taken by yourselves, none of you have the luxury of ignoring the issues presented here, but have the affirmative duty to rectify them or publicly explain the basis for your refusal to do so. To do other wise is not only obliquity but should be carefully considered for its implication of treason.
We have been given a great doctrine, given to us for safe keeping at the expense of much life, limb, and property. It provides for the common welfare while simultaneously protecting and preserving respect for the individual. The control of its implementing system is that government should never act against an individual except where reason capable of articulate written statement, openly put to, and applicable to, all similarly situated, exists. For this reason government may never act against an individual without the imprimatur of a court. Any person affected by a court used to have the right to insist that the action taken by the government become part of our common law so as to warrant that the government would treat all others similarly. To be blunt, your committee is now complacent in the destruction of that control mechanism.
There is enormous protection for the individual in that control mechanism, for it raises anything that government may do to one individual to a potential threat against the entire community of persons that might, now or at some time in the future, be treated in the same way. It is the threat of propagation of error that causes each of us to look out for the other.
Because of this, we Americans have resolutely protected each other, insuring that our house may not be divided. The care and concern for others, or in other words, the respect for the humanity of others is regenerated and amplified by stare decisis, equal protection and the rule of law. Why is it so important? Because it is the direct implementation of the essence of G-d's law - Do not do unto others that which you would not have them do unto you. Our obedience to that doctrine is not because we are threatened by a greater force, but rather because we understand that Justice for All best protects us from whatever may be brought upon us.
The absence of the certain opportunity for every person to obtain a fully explicated opinion, warranted to be the law for all by its publication and the effect of stare decisis, threatens destruction of our nation. A powerful statement, but not alarmist, for to say otherwise is to negate the benefit of the rule of just law.
The judges of your committee must observe their courts from the perspective of the people they serve. Courts do not serve lawyers - they are part of that institution-and are not appropriate oversight. Courts serve people. Courts are the embodiment of government as it relates to individuals. Each wrong decision does at least quadruple damage. It rewards and encourages the scofflaw and harms and makes cynics of the law abiding. And the talk of the people quickly spreads the harm.
The problem is not the citation of erroneous decisions. The problem is the creation of erroneous decisions. The purpose of publication and citation is to discourage error, and also to enlist the whole community in identifying error and perfecting the law itself. Sedating public concern for error in individual cases improperly serves only to protect the courts and individual judges from public criticism, or having to criticize fellow judges for unwise decisions in the process of correcting the law, and has the negative effect of taking the public's eye off of the otherwise unrestricted power of the judiciary, and the need for constant governance of government by the people themselves.
Justice Anthony Kennedy told me that "It would take a thousand judges to do it right". Perhaps. But that figures to only twenty per state. It is a small enough cost for the many benefits of the rule of law, the sine qua non of civilization.
Kenneth J. Schmier
Committee for the Rule of Law
Cc: Blaine Merrit
Counsel House Subcommittee for the Courts
William Glaberson, New York Times
Kim Curtis, Associated Press
Bridgid McMenamin, Forbes Magazine