National Law Journal
June 24, 2002
His target: court opinions that aren't officially published
By Gary Young
Publish or perish. That could be the motto of Kenneth J. Schmier, a California lawyer and businessman who has staked his all on an effort to force appellate courts to end the use of unpublished opinions.
Schmier says he's spent "hundreds of thousands of dollars" and even been arrested in service of the cause. Marin County sheriff's deputies dragged him out of a 1998 local "Meet Your Judges" session when he addressed the judges, defying a moderator who ignored his questions, he says.
Publish and perish. That's what appellate judges would throw back at Schmier. For 30 years, they have kept their heads above a rising tide of lawsuits by giving less attention to routine cases, designating the resulting decisions "unpublished," and, usually, forbidding lawyers to cite them. Scholars have long decried the practice as unwise. But critics like Schmier and Judge Richard S. Arnold of the 8th U.S. Circuit Court of Appeals have upped the ante by claiming it is unconstitutional.
The critics have prompted Congress to take its first look in recent memory. The House Subcommittee on Courts, the Internet and Intellectual Property has tentatively scheduled a hearing for June 27. Melissa McDonald, subcommittee counsel, says the purpose of the hearing is to gauge how much of a problem exists, if any, and discuss what Congress might do about it. Two law professors who have studied the issue-Stephen R. Barnett of the University of California at Berkeley, and Arthur D. Hellman of the University of Pittsburgh, the latter of whom is scheduled to testify-welcome the congressional spotlight, but say that courts are already beginning to rewrite their nonpublication rules.
The U.S. Judicial Conference claims that about 80% of federal appellate decisions are unpublished. The practice is common among the states, with some, such as Texas and California, publishing fewer than 10% of appellate cases. "Unpublished" doesn't mean what it used to, though. Thirty years ago, unpublished decisions were distributed only to the parties and those willing to make a trip to the courthouse. Today, most courts post them on the Internet or make them available to West or Lexis. While state unpublished decisions rarely appear in casebooks, the federal situation changed last year when West launched its Federal Appendix series of reporters.
Despite their availability, nonpublished decisions continue to stir passions, because most courts give them second-class status, either refusing to be bound by them or forbidding lawyers even to cite them as persuasive authority.
Schmier, who will address the subcommittee, has been tireless in getting the issue onto the political radar screen.
He first sprang into action when his sister-in-law lost a costly real estate battle in an unpublished 1997 decision. Schmier appealed the "unpublished" designation all the way up the hierarchy of California courts and then asked the U.S. Supreme Court to grant cert to declare California's nonpublication rule an equal protection violation. Later, he directly sued California's appellate courts and the 9th U.S. Circuit Court of Appeals. Schmier met with defeat in all of these legal battles, which are documented on his Web site, www.nonpublication.com.
After his "Meet Your Judges" ordeal, Schmier filed a false-arrest charge against Marin County. He dropped it in exchange for the chance to present his views to the board of supervisors. He has been taking his message to politicians, state and federal, ever since.
His brother, Michael, has joined in the effort, making the issue part of his platform in unsuccessful 1998 and 2002 runs for California attorney general and a 2000 run for U.S. senator.
Arnold is another driving force. His 2000 opinion in Anastatoff v. U.S., 223 F.3d 898, stated that federal judges who refuse to give precedential effect to unpublished decisions exceed the scope of the judicial power conferred on them by the constitution's Article III. Anastatoff was later vacated for unrelated reasons, but unleashed a flurry of commentary by judges and scholars.
Arnold argued that in the founding era, obedience to precedent was the essence of what it meant to be a judge. Judge Alex Kozinski of the 9th Circuit disputed that view in a 2001 opinion upholding the circuit's nonpublication rule. Kozinski maintained that case reporting was so spotty and unreliable in Colonial times that judges had to be selective about what decisions they would bow to. Hart v. Massanari, 266 F.3d 1155.
In Barnett's view, Kozinski has proven that Article III does not forbid rules that recognize unpublished decisions as persuasive but not binding authority. But he thinks Kozinski would have to concede that the framers wouldn't have countenanced a ban on citation.
Barnett sees a shift in attitudes. When it abandoned its no-citation rule earlier this year, "the D.C. Circuit tip[ped] the balance in the federal courts against no-citation rules. Of the thirteen circuits, there remain only five...that ban citation," he writes in an article due out this month. Other recent developments include Internet posting by the 3d Circuit and an ABA House of Delegates resolution urging an end to no-citation rules.
Hellman hopes that the subcommittee will watch these judicial trends before attempting to intervene through legislation. But, he adds, another way Congress could reduce the number of unpublished decisions is to grant the Judicial Conference's recent request that more federal judgeships be created.