IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT and JUDICIAL COUNCIL OF THE ELEVENTH CIRCUIT,
Case No. 4:00cv457-RH
COMPLAINT FOR TEMPORARY, PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF/PETITION FOR WRIT OF MANDATE OR PROHIBITION IN THE ALTERNATIVE OR OTHER APPROPRIATE RELIEF
REQUEST FOR ORDER TO SHOW CAUSE FOR EXPEDITED, EMERGENCY HEARING REGARDING TEMPORARY AND PRELIMINARY RELIEF
Plaintiff/Petitioner MICHAEL SCHMIER alleges as follows:
1. Plaintiff/Petitioner MICHAEL SCHMIER is a citizen of the United States of America, a taxpayer, and a person beneficially interested in the issuance of the writ herein sought because he has clear, present, and substantial constitutional and federal statutory rights to the performance of Defendants/Respondents' duties, and is personally concerned that Defendants/ Respondents perform their duties under the law. Plaintiff/Petitioner is interested as a citizen and as a duly licensed attorney at law in having the laws executed and the duties in question being enforced.
2. The object in question is one of public right and the object of the request for issuance of a Writ of Mandate, or in the alternative, a Writ of Prohibition, or in the alternate other appropriate relief, including but not limited to Declaratory Relief, to procure the enforcement of a public duty or to prohibit the named Defendants/ Respondents from continuing to act contrary to their public duty. This is necessary to promote the policy of guaranteeing to citizens the opportunity to ensure that no governmental body impairs or defeats the Constitution of the United States, the purpose of legislation establishing a public right, relevant statutory enactments, or the common law.
3. The judicial power of the United States is vested in the United States Supreme Court and inferior courts, including Defendant/Respondent the United States Court of Appeals for the Eleventh Circuit, pursuant to Article III Section 1 of the Constitution of the United States. Defendant/Respondent the Judicial Council of the Eleventh Circuit was established pursuant to 28 U.S.C. § 332.
4. Jurisdiction of this Court over the subject matter of this action is proper pursuant
to Article III Section 2 of the United States Constitution, 28 U.S.C. § 1331,
28 U.S.C. § 1346(a)(2), 42 U.S.C. § 1983, and/or 5 U.S.C. § 702.
5. Defendants/Respondents are empowered to establish rules for the conduct of court
business pursuant to the authority of 28 U.S.C. §§ 2071, et seq. Defendants/ Respondents
have enacted Circuit Rule 36-1, 2 & 3, which provide:
11th Cir. R. 36-1. AFFIRMANCE WITHOUT OPINION
11th Cir. R. 36-1. AFFIRMANCE WITHOUT OPINION
When the court determines that any of the following circumstances exist:
(a) the judgment of the district court is based on findings of fact that are not clearly erroneous;
(b) the evidence in support of a jury verdict is sufficient;
(c) the order of an administrative agency is supported by substantial evidence on the record as a whole;
(d) summary judgment, directed verdict, or judgment on the pleadings is supported by the record;
(e) the judgment has been entered without a reversible error of law;
and an opinion would have no precedential value, the judgment or order may be affirmed or enforced without opinion.
11th Cir. R. 36-2. UNPUBLISHED OPINIONS
An opinion shall be unpublished unless a majority of the panel decides to publish it. Unpublished opinions are not considered binding precedent. They may be cited as persuasive authority provided a copy of the unpublished opinion is attached to or incorporated within the brief, petition, motion or response in which such citation is made.
11th Cir. R. 36-3. PUBLISHING UNPUBLISHED OPINIONS
At any time before the mandate has issued, the panel, on its own motion or on
the motion or upon the motion of a party, may by unanimous vote order a previously
unpublished opinion to be published. The timely filing of a motion to publish shall stay
issuance of the mandate until disposition thereof unless otherwise ordered by the court.
The time for issuance of the mandate and for filing a petition for rehearing or petition
for rehearing en banc shall begin running anew from the date of any order directing
11th Cir. R. 36
I.O.P.5. Publication of Opinions
[The policy of the court is: The unlimited proliferation of published opinions is undesirable because it tends to impair the development of the cohesive body of law. To meet this serious problem, it is declared to be the basic policy of this court to exercise imaginative and innovative resourcefulness in fashioning new methods to increase judicial efficiency and reduce the volume of published opinions. Judges of this court will exercise appropriate discipline to reduce the length of opinions by the use of those techniques which result in brevity without sacrifice of quality.
A majority of the panel determine [sic] whether an opinion should be published. Opinions that the panel believes to have no precedential value are not published. All non-published opinions and affirmances without opinion under 11th Cir. R. 36-1 are printed in table form in the Federal Reporter. (See for example 900 F.2d 264). Although unpublished opinions may be cited as persuasive authority, they are not considered binding precedent. Reliance on unpublished opinions is not favored by the court. Parties may request publication of an unpublished opinion by filing a motion to that effect in compliance with FRAP 27 and the corresponding circuit rules.]
6. This action is for issuance of a Writ of Mandate, or in the alternative of Prohibition, or in the alternative, other appropriate relief, including declaratory relief, to allow the citation of any disposition or order as binding authority, whether published or unpublished, by or to the Eleventh Circuit or any district court in the circuit, and to provide that any disposition or order, whether published or unpublished, shall have the full force of precedent under law and that all dispositions of the courts of this circuit be published, either in book form with official reports of court opinions or online.
7. Circuit Rule 36-1, 2 & 3 violate the following: (1) Article III of the United States Constitution; (2) separation of powers; (3) equal protection and due process guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution; (4) the freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment to the United States Constitution; and (5) the doctrine of stare decisis. See James B. Beam Distilling Co. v. Georgia, 510 U.S. 529, 544, 111 S.Ct. 2439, Anastasoff v. United States of America, 223 F.3d 898 (8th Cir. 2000). The Circuit Rule complained of herein impermissibly creates restraints on the ability of litigants and counsel to exercise their constitutional rights to petition the government for redress of grievances by disallowing the use of judicial acts as binding authority. This also trammels their free speech rights before the very tribunals that are constitutionally charged with protecting free speech. Every judicial decision and act according to Anastasoff, supra, in this Circuit is an interpretation and declaration of a general principle or rule of law which is authoritative to the extent necessary for each particular decision and which should be applied in subsequent decisions to similarly situated parties. To the extent Circuit Rule 36-1, 2 & 3 allows the courts of this circuit to avoid the precedential effect of prior decisions and Circuit Rule 36-3 operates to allow publication of only certain dispositions of the court, the law is applied inequitably and unequally, and the judicial power is expanded beyond the constitutional bounds of Article III of the United States Constitution. Regardless of the level of judicial expediency intended or obtained by the Rule, it cannot be justified within the bounds of the United States Constitution; judicial expediency may be obtained through less intrusive means.
8. Local rules which are constitutionally infirm, among other reasons recognized in law, are invalid. See Frazier v. Heebe, 107 S.Ct. 2607, 2610, 482 U.S. 641 (1987), Whitehouse v. United States District Court, 53 F.3d 1349, 1355 (1st Cir. 1995). The proper method for mounting a facial challenge to the validity of such a local rule is through an action in the district court for declaratory and/or injunctive relief. Whitehouse, 53 F.3d at 1353. Plaintiff/Petitioner has no adequate remedy in the ordinary course of law, other than the relief sought in this petition, in that there is no other means to challenge the validity of Circuit Rule 36-1, 2 & 3. The violations of the United States Constitution complained of herein are continuing daily, and are causing grievous harm to numerous litigants, including Plaintiff/Petitioner herein, and the harm caused is not compensable in damages as it deprives litigants of the fundamental right to be heard. The continued constitutional violations by Defendants/Respondents are causing irreparable damage to the operation of our system of law and to the body politic that relies on our courts of law to dispense justice fairly, equally, and uniformly to all litigants. The people cannot know the manner in which their enacted laws are being applied if they are unaware of the manner in which the courts of the circuit are enforcing those laws. By failing to publish all dispositions and by failing to give each disposition precedential value, Defendants/ Respondents sever the mechanism by which the public can monitor the application of law. It is essential in preserving our democracy and our representative form of government that the separation of powers be maintained and that the courts of this circuit uphold the right of the people to have justice by the application of known laws that are fairly, equally, consistently, and uniformly applied under the doctrine of stare decisis.
WHEREFORE, Plaintiff/Petitioner prays:
1. That a Writ of Mandamus, or alternately a Writ of Prohibition, be issued requiring the publication of all disposition of the courts of this circuit where res judicata has not yet attached to the final judgment;
2. That a Writ of Mandamus, or alternately a Writ of Prohibition, be issued requiring that every disposition of the courts of this circuit shall have precedential effect;
3. For the issuance of a temporary, preliminary and permanent orders and injunction restraining and preventing Defendants/Respondents from in any way using or enforcing Circuit Rules 36-1, 2 & 3 (see Affidavit attached as Exhibit A);
4. Alternately, for other appropriate relief, including a declaration of Plaintiff/Petitioners' rights guaranteed by the United States Constitution to allow the citation of any and all dispositions of the courts of this circuit as legal precedent;
5. For fees and costs of this proceeding, and/or for such other and further relief as the court deems just and proper.
Dated December 5, 2000.
1475 Powell Street, Suite 201
Emeryville, CA 94608
tel 510-652-5450; 510-652-6087