[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the Judicial Conference of the United States, regarding Proposed Fed.R.App.Proc. 32.1 (which would permit citation of unpublished opinions).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.
To: Committee on Rules of Practice and Procedure of the Judicial Conference of the United States Attn: Peter McCabe, Secretary Email: email@example.com 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in support of proposed Federal Rule of Appellate Procedure 32.1, which would require the courts to permit citation of unpublished judicial opinions.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as Ninth Circuit Court of Appeals, Rule 36-3) which forbid (under penalty of sanctions) even mentioning in court any unpublished opinions produced by that very same court.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to remind me what I just proclaimed the law to be about this exact same issue that you are arguing because I marked it ‘not for publication’”.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 "Lawyers may cite sonnets by Shakespeare or scenes from Spielberg for their persuasive value, but they can't cite unpublished decisions by the very appellate courts they wish to persuade".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 absurd. 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 number”. 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 opinions. 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 available. 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 cases): “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 overlooked. 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: http://www.citynationalstory.com/98-55030/openbrief.pdf Decision in my case: http://www.citynationalstory.com/98-55030/memorandum.pdf My petition for rehearing: http://www.citynationalstory.com/98-55030/petrehearing.pdf Final order in my case: http://www.citynationalstory.com/98-55030/order.pdf The Wright decision: http://www.citynationalstory.com/98-55030/wrightopinion.pdf 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 litigants. 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 itself. 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 general. 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 charge. 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 _____
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