Comment regarding Proposed Fed.R.App.Proc. 32.1

[First published Mar 2, 2004 – republished here Dec 8, 2014]

This is a comment sent by email to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, regarding Proposed Fed.R.App.Proc. 32.1 (which would permit citation of unpublished opinions). 

This comment refers to a letter by Ninth Circuit Judge Alex Kozinski, sent January 6, 2004, to the Committee in opposition to rule 32.1.  
Click here to see a copy of Judge Kozinski's letter (in pdf format).  
Click here to see a copy of the proposed Rule 32.1.
Click here to see copy of the Committee's March 8, 2004 letter acknowledging receipt of the below email.


Committee on Rules of Practice and Procedure of the Judicial Conference of
the United States

Attn: Peter McCabe, Secretary

I am writing in support of proposed Federal Rule of Appellate Procedure
32.1, which would require the courts to permit citation of unpublished
judicial opinions.

It’s unfortunate that rule 32.1 is needed.  But it is indeed needed, to
address the problem of those bizarre no-citation rules (such as Ninth
Circuit Court of Appeals, Rule 36-3) which forbid (under penalty of
sanctions) even mentioning in court any unpublished opinions produced by
that very same court.  The court is saying in effect: “You are forbidden
to remind me what I just proclaimed the law to be about this exact same
issue that you are arguing because I marked it ‘not for publication’”.

A judicial opinion - whether published or not -  is law (at least for
somebody) and yet, under rule 36-3, it’s forbidden by law to even mention
it to that very court of law.  "Lawyers may cite sonnets by Shakespeare or
scenes from Spielberg for their persuasive value, but they can't cite
unpublished decisions by the very appellate courts they wish to persuade".
 (MacLean, “The Fight to Cite”, Daily Journal (Feb. 6, 2004)).   This is

Although I’m a layman (who never formally studied law) it sounds to me
like the no-citation rules - whatever else you may say about them - do
nothing to enhance the dignity of the court.

And it’s not one or two cases being censored for some particular purpose. 
No-citation rules restrict ALL citation (with few exceptions) to the vast
majority of appellate opinions.  Ninth Circuit Judge Alex Kozinski, in his
January 6, 2004, 22-page letter to this Committee in opposition to rule
32.1 ( “Kozinski letter”) states (at p.10) that opinions are written in
only “15% of the cases” and that they “may well have to reduce that

In other words, 85% - and in the future more than this - of appellate case
law cannot be considered by the very court responsible for those same

What’s more incredible is the reason given by Judge Kozinski to justify
rule 36-3.  He tells us (with a straight face) that the non-published
opinions (WHICH HE SIGNS HIS NAME TO) are essentially JUNK:    "When the
people making the sausage tell you it's not safe for consumption, it seems
strange indeed to have a committee in Washington tell people to go ahead
and eat it anyway" (Kozinski letter, p.2).   I would ask Judge Kozinski
the following question: Instead of just hiding it, wouldn’t common sense
tell us to stop cranking out unsafe sausage - and to replace the guilty
sausage-makers with competent ones?

Judge Kozinski focuses his concern on the differences in quality of
writing style between published and non-published opinions.  Poor phrases
or “fine nuances of wording” in an unpublished decision can lead to
confusion (Kozinski letter,p.2).   “While an unpublished disposition can
often be prepared in only a few hours, an opinion generally takes many
days (often weeks, sometimes months) of drafting, editing, polishing and
revising” (Kozinski letter,p. 9).

I would ask Judge Kozinski the following question:  Is it the proper role
of judges to spend their time creating monuments of judicial literature
(which, incidentally, redound to their own fame and glory)?  Or is it to
dispense quality Justice to the American public who are waiting in line to
have their cases decided?  In my humble opinion, I think the latter
function is what’s important.

Judge Kozinski’s amazing letter reveals even more.  Why are 85% of
appellate opinions too lousy to be cited?   He tells us it’s because
they’re not even written by  judges!  They’re written by law clerks
(Kozinski letter,p.3).   Appellate judges sign their names to these
unpublished opinions after “an average of five or ten minutes devoted to
each case” (Kozinski letter,p.5).  This is a scandal - a complete
abrogation of judicial responsibility!  Judge Kozinski, another question: 
Aren’t judges supposed to judge - to consider the facts and law of each
case - not to just automatically sign their names to a judgment written by
a clerk?

According to Judge Kozinski, only 15% of the cases deserve more than 5
minutes of the judge's time.  The other 85% of the cases get short shrift.
 This cavalier approach to dispensing justice is simply not compatible
with American values of equal justice under the law.

While Judge Kozinski is polishing his fine phrases and creating literary
masterpieces for those select few whose cases will be published, the rest
of us are handed over to law clerks to be made into sausages.  This is a
failure of justice.

Judge Kozinski’s letter speaks for itself, without my having to make these
points.  What bothers me most - and the primary reason I’m writing you -
is that a key presumption of Judge Kozinski - a presumption upon which his
entire 22-page presentation stands or falls - is simply false.  And (since
I am, myself, a victim of rule 36-3) I can provide this Committee with
information in this regard, which would probably not otherwise be

Judge Kozinski’s presentation depends on the presumption that the current
scheme of managing cases under rule 36-3 does not result in a failure of
Justice or abuse by the judges.  However, that presumption is not correct.

Judge Kozinski states that (although little time is given to unpublished

“We are very careful to ensure that the result we reach in every case is
right, and I believe we succeed”  . . .  “we can make sure that a
disposition reaches the correct result and adequately explains to the
parties why they won or lost, . . .” (Kozinski letter, p.5).

This is FALSE.  My own appeal to the Ninth Circuit proves that this is false.

In his letter at p.7, Judge Kozinski states:

"Much of the criticism of the noncitation rule seems to be based on some
dark suspicion that appellate judges . . . are using the noncitation rule
as a means of ignoring or contravening the law . . . or giving certain
parties a special exemption from the law generally applicable to everyone
else.  My colleagues and I are well aware of these concerns, and we are,
frankly, baffled by them.".

This is no mere suspicion.  It is a fact that the no-citation rule is
being abused.  This can be seen from my own 1998 appeal to the Ninth
Circuit.  And, ironically, the abusing judge is none other than Judge
Kozinski himself!

In my unpublished case, In re Neuton (9th Circ. 1998) Case No. 98-55030, I
argued in my opening brief (at p.16) that California Civil Procedure Code,
sec. 391.2  precludes res judicata from applying in regard to an
underlying issue.

In another unpublished case Wright v. United Airlines (9th Cir.1994) Case
No. 94-15282, Judge Kozinski wrote the opinion (or shall I say he signed
it as the opinion writer).  The Wright opinion is decided on exactly the
same argument as I made in my opening brief.

However in my case, Judge Kozinski (or shall I say his law clerk) ruled
completely inconsistently with Wright saying that litigation of my
underlying issue was barred.  And the decision in my case didn't even
mention sec. 391.2.

Because of Ninth Circuit Rule 36-3, I was barred from citing the Wright
case in my opening brief.  However, in my petition for rehearing (the
function of which is to point out what is overlooked by the court’s
opinion) I did cite it because the existence of the Wright case (written
by the same judge as the writer of the opinion in my case) proves that the
sec. 391.2 argument which I had made in my opening brief, was completely

My petition for rehearing put the issue squarely in Judge Kozinski’s face,
showing that his decision in my case totally contradicted his own rule of
law set down in another unpublished opinion regarding the exact same
statute (Sec. 391.2), and the exact same issue (res judicata effect of the
statute).   My petition for rehearing was summarily denied.   (I see now
from the Kozinski letter the he probably didn’t even read the petition.)

Copies of these documents (in pdf format) are posted at the following URL’s:

My opening brief:
Decision in my case:
My petition for rehearing:
Final order in my case:
The Wright decision:

In other words, the rule which Judge Kozinski sets forth as law in one
opinion is completely contradicted by his own ruling in another, nearly
identical, case.   Same statute (sec.391.2), same issue (res judicata
effect of the statute) - yet a different rule for two different litigants.
  This is a failure of Justice resulting from the no-citation rule.

Incidentally, even without factual evidence, Judge Kozinski’s presumption
that judges can (and do) come to the correct decisions, spending five
minutes per case (looking over their clerk’s work) is not sustainable. 
Witkin, Manual on Appellate Court Opinions (West, 1977) states (p.25) that
a ". . . basis for requiring a written statement of reasons in connection
with the disposition of cases relates to the process of deciding cases. 
Most people find that their thinking is disciplined by the process of
written expression.  The reduction of ideas to paper, the organization of
ideas on paper, significantly affects ultimate decisions;  fuzzy thinking
is exposed and . . ., errors are corrected.".

In other words, writing the opinion is, itself,  part of the intellectual
process of deciding the case. If the judge doesn’t write the opinion
himself he has not given proper attention to the case.

There are more objections to no-citation rules.

No-citation rules are unconstitutional - especially in regard to pro se

Tusk, “No Citation Rules as a Prior Restraint on Attorney Speech” Columbia
Law Review (June 2003, p.1202) argues that no-citation rules violate
attorneys’ First Amendment free speech rights notwithstanding the dictum
in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) that a lawyer’s
free speech rights are “extremely circumscribed” within the courtroom (due
to “officer of the court” doctrine).  Tusk argues that “[i]t is
unthinkable to compare the state’s interest in protecting fair trials with
the interests asserted in the case of no-citation rules, especially
because no-citation rules ultimately may operate to deprive litigants of a
fair trial.” (Tusk at 1228).

In any case, to whatever extent “officer of the court” doctrine may or may
not allow no-citation rules to apply to attorneys, that doctrine should
not apply, of course, to pro se litigants who are in no respect “officers
of the court”.

Judge Kozinski ridicules the prior restraint objection: “. . . we apply
all manner of restrictions to what lawyers may argue in their briefs –
restrictions that could never be applied to other types of speech.”
(Kozinski letter,p.20).     Yes, but there is a difference between
restrictions having to do with the form of the brief (e.g., whether a
brief may be 30 pages or 40 pages long, etc.) on the one hand, and
restrictions affecting the substance of the brief, on the other. 
Restrictions regarding the form of the brief affect all litigants equally.
 But rule 36-3 does not.  It affects catastrophically those litigants
(such as myself) whose case authority to support their argument happens to
be unpublished.  Rule 36-3 is more than a technical rule regarding day to
day business of the court.  It goes to the substance, the heart of
litigation, and touches upon the very definition of the judicial process

Another dimension to the prior restraint analysis is that rule 36-3
affects the First Amendment freedom to petition – not only freedom of
speech (which concerns Tusk, supra).  It constitutes government censorship
by an unlawful prior restraint on
 the right to petition.

The right to petition encompasses the right to sue. (California Transport
v. Trucking Unlimited (1972) 404 U.S. 508,510 . . . ‘‘The right to sue and
defend in the courts is the alternative of force. In an organized society
it is the right conservative of all other rights, and lies at the
foundation of orderly government.’’ (Chambers v. Baltimore & O.R. Co.
(1907) 207 U.S. 142,148 . .).

In other words, rule 36-3 touches upon the most primary and essential of
our American liberties, one which should not be tampered with.

The right to petition is "among the most precious of the liberties
guaranteed by the Bill of Rights," Mine Workers v. Illinois Bar Assn., 389
U.S. 217, 222 (1967), and except in the most extreme circumstances
citizens cannot be punished for exercising this right "without violating
those fundamental principles of liberty and justice which lie at the base
of all civil and political institutions," De Jonge v. Oregon, 299 U.S.
353, 364 (1937).

The gist of Judge Kozinski’s position is that - due to the judges’ heavy
caseload - a kind of judicial “triage” is necessary.  Judges don’t have
enough time to write opinions in every case.  85% of the cases must be
sacrificed (be unpublished).  And rule 36-3 is necessary for this scheme
to work.  However this approach throws out the baby with the bathwater.

The purpose of the judicial system is to dispense Justice to the American
public and to do so WITH EQUAL JUSTICE FOR ALL.  Judge Kozinski’s elitist
approach is not a “triage” solution which complies with this purpose at
all.  It is one that makes life easier for judges, legal publishers, and
some lawyers, but it’s not one which benefits the American public in

The argument (Kozinski letter,p.14) that there is an “optimal amount of
precedent” and that adapting the Anastasoff rule would result in “too
much” precedent is difficult to fathom.  The more precedent, the more
precisely people come to know what their rights are - and to know this
without the necessity of litigation.  It should result in more settlements
and less litigation.

And Judge Kozinski’s concern (Kozinski letter,p. 14-16) for disadvantaged
litigants (e.g., pro se litigants) is misplaced.   With today’s
technology, it is no more difficult to find unpublished than published
opinions. For example, a VersusLaw search turns up the published and
unpublished opinions (meeting the search terms) side by side - at no extra

Of course, the problem that caseloads are too heavy is without dispute. 
The obvious solution is to have more judges. This problem has been
recognized for many years:

“. . . although the judicial branch of our government is supposed to be
co-equal with the executive and legislative branches, it is often given
short shrift in terms of the resources provided for it to perform its
functions adequately. The truth of that statement can be documented very
readily in any jurisdiction by tracing the jurisdiction’s population
growth against the increases in the number of trial and appellate judges
over the years. The solution to court congestion and delay is not to take
away the rights of certain classes of citizens by eliminating certain
types of cases from the justice system. It is rather to provide the
personnel and facilities which will make the system function properly.”
(DEFENSE RESEARCH INST., Administration of Civil Justice Position Paper
(Mil.,Wis. 1981),p.33 (emphasis added). See also (Hon.Stephen) REINHARDT,
Whose Federal Judiciary is it Anyway? 27 Loyola(L.A.) L.R. (1993), who
proposes that “Congress double the size of the courts of appeals”, and
states that “We spend almost as much on one stealth bomber as we do on the
whole federal judicial system. . . 160 federal appellate judges is simply
far too small a number for a nation of over 240 million people.”.

The Ancient Romans had a solution for the caseload problem in “Lex
Cincia", a law of Ancient Rome prohibiting paying fees to lawyers for
representing anyone in court.

“During the rise of Rome, its citizens involved in lawsuits pleaded their
own cases, as was true everywhere in the ancient world. . . . According to
the lex cincia  passed by the Senate in 204 BC, the advocati [legal
experts] were forbidden from taking fees. During a Senate debate [47 AD.]
of the issue, Senator Gaius Silius said:

’If no one paid a fee for lawsuits, there would be less of them! As it is,
feuds, charges, malevolence and slander are encouraged’.” (Tacitus, The
Annals of Imperial Rome, Penguin Books, Harmondsworth, 1956, pg.233).

Statutes to limit lawyers’ fees would be a giant step towards curbing
spiraling caseloads.
(There are other possible solutions but this is getting off topic.)

Judge Kozinski has made an investment in rule 36-3 by his decision in Hart
v. Massanari, 266 F.3d 1155 (9th Cir. 09/24/2001) which upholds the
constitutionality of rule 36-3, contra the scholarly, well-reasoned
opinion of Anastasoff v. United States, 223 F.3d 898, vacated as moot on
reh'g en banc, 235 F.3d 1054 (8th Cir. 2000), which rules that a similar
court rule is unconstitutional.

However, the reasoning in Hart is flawed and misses the point of
Anastasoff.  Whether a judge can arbitrarily invent his own law and issue
capricious decisions or whether he is bound by precedent goes to the very
definition of what is "judicial power" – it’s not simply "one aspect of
the way federal courts do business".

In any case, Judge Kozinski’s “depth of feeling” on this subject (Kozinski
letter,p.22) reflects his investment in rule 36-3. However, in my view, if
he put as much time, effort and attention into reading briefs and writing
opinions, as he does into lobbying for rule 36-3 (and against proposed
rule 32.1) our entire judicial system would be better off.

In conclusion, I thank you for having had the courtesy and patience to
read this far.  And I wish your Committee success in promulgating the
proposed rule 32.1.

Respectfully submitted,

Laurence Neuton

Los Angeles, CA _____

Law Reform Network - "Our Courts Belong to the Public - Not to the Lawyer Industry!"


Message Board
What’s your opinion? Email to Judicial Council re Proposed Rule 32.1 :: 4 Entries – 1 Pages Bold Entries new since last visit.
Author Message
Date: 7-25-2012
Discussion moved to Message Boards at:

Date: 4-29-2004
It seems that the proposed amendment was approved by the Rules Committee!!
See and Notice: ”

On April 13, 2004, the Advisory Committee on Appellate Rules held a hearing on the proposed rules and amendments published for comment in August 2003. The Advisory Committee thereafter met on April 13-14, 2004, to consider the published proposals. The Advisory Committee approved, without modification, proposed amendments to Appellate Rules 26(a)(4) and 45(a)(2) (replace “Presidents’ Day” with “Washington’s Birthday”); proposed new Appellate Rule 27(d)(1)(E) (apply typeface and type-style limitations to motions); proposed amendments to Appellate Rules 28(c), 28(h), 32(a)(7)(C), and 34(d), and proposed new Appellate Rule 28.1 (cross-appeals); proposed new Appellate Rule 32.1 (citation of unpublished opinions); and proposed amendments to Appellate Rule 35(a) (en banc determination). The Advisory Committee approved, with minor modification, proposed amendments to Appellate Rule 4(a)(6) (clarify conditions for reopening time to appeal a district court’s judgment or order). The Advisory Committee will transmit the proposed rules and amendments to the Committee on Rules of Practice and Procedure, with a recommendation that they be approved and transmitted to the Judicial Conference for consideration.”

Date: 3-4-2004
There will be a hearing on proposed rule 32.1 on April 13, 2004, 8:30 am, at 1 Columbus Circle NE, Washington DC (across from Union Station), 4th Floor Agency Conference Room, South Side. Hearing is open to the public. Phone # of Rules Committee office is 202-502-1820.
Date: 3-2-2004
Judge Kozinski’s letter reveals a scheme where the legislative function is usurped by the judiciary. The appellate court judges want to be lawmakers rather than law dispensers. They let their clerks decide 85% of the cases while they focus on creating new law in the 15% of the cases that they actually decide. Instead of dispensing justice in ALL of the cases that come before them and letting the cumulation of these decisions result in a de facto creating of law, they want to make creating law their primary function. This is an outrageous abrogation of their judicial responsibilities. And it conflicts with our separation of powers form of government.
This entry was posted in Non-Publication Rules and tagged , , , , . Bookmark the permalink.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.