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Judge Nullification: A Perception of Unpublished Opinions
Abstract
This article tests the constitutionality of California's prohibition on citation to unpublished court opinions against the State's Judicial Notice Statute and the intent behind Article VI § 14 of the California Constitution (banning opinionless judgments). The article examines the history and evolution of California's publication system, and analyzes the role of the no-citation rule (CRC 8.1115(a), formerly Rule 977) within that system. The discussion identifies flaws in the premise behind the no-citation rule, explains the rule's unconstitutionality, and considers threats posed by it to the rule of law. 62 Hastings L.J. 1397 (2011).
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I was originally going to discuss unciteable opinions. But then I thought, this is such a trivial topic. With so many more important things happening in America, I decided to switch topics and discuss the crises in healthcare and education. I want you to consider two hypotheticals.
Court observers disagree over the influence judicial law clerks exert on the judicial decision-making process. To address this question, eighty-one justices on thirty-five state high courts in the United States were surveyed for their perceptions of the role of their law clerks. The data reveal that these clerks are highly useful in providing legal and factual information about cases, often make recommendations and help write judicial opinions, and sometimes collaborate with judges in reaching judicial outcomes. Thus, law clerks exert moderate influence overall on the judicial decision-making process in state high courts. These conclusions are consistent both with the predictions of principal-agent organizational theory as well as with the findings of studies of clerk influence on the United States Supreme Court.
In what has been called the most controversial issue in the history of the judicial rulemaking process, a committee of the United States Judicial Conference has proposed a new Federal Rule of Appellate Procedure, FRAP 32.1, which would require all federal circuit courts of appeals to permit citation of their unpublished opinions (or orders). The proposed rule - scheduled for action by the Judicial Conference on September 20, 2005 - has produced a rare outpouring of 513 public comments. These come overwhelmingly from lawyers and judges in the Ninth Circuit; they are overwhelmingly opposed to Rule 32.1; and they overwhelmingly predict dire results if the rule is adopted. The proposed rule offers a natural experiment. The rule would require four federal circuits, the Second, Seventh, Ninth, and Federal, to do what the other nine circuits already do: let their unpublished opinions be cited. It should be possible, therefore, to examine the situation in the nine circuits where citation is allowed - the citable circuits - to see whether harmful effects have in fact come to pass when citation is permitted. This paper examines for that purpose two groups in citable circuits from whom one would have expected to hear of such adverse effects if they existed: (a) federal circuit judges, and (b) attorneys in federal public defender offices (federal public defenders). Judging by the comments filed (or not filed) in the FRAP 32.1 proceeding by federal circuit judges in the citable circuits, this paper concludes that those judges do not find that allowing citation produces adverse effects. The dog did not bark. With regard to federal public defenders, this paper first examines, as a backdrop, the comments filed in the FRAP 32.1 proceeding by public defenders in the Ninth Circuit. There were 62 such comments, all opposed to the rule and predicting harmful effects if it was adopted - but all unable to go beyond prediction, since the feared citation is prohibited in the Ninth Circuit. Nor could I look to comments filed on FRAP 32.1 by public defenders from the citable circuits, for public defenders outside the Ninth Circuit filed very few comments. I therefore sought the views of federal defenders in citable circuits through a different means, telephone interviews. I conducted thirty-six interviews with federal public defenders, spread through the nine citable circuits. Summaries of those interviews - the heart of this paper - show that federal public defenders in the citable circuits largely favor citability, and that they largely disagree with the views of their public-defender colleagues in the Ninth Circuit. The FRAP 32.1 proceeding also raises questions about notice-and-comment rulemaking as applied to rulemaking for courts. These questions include the extent to which the 513 comments on FRAP 32.1 were produced by organized lobbying efforts and employer compulsion, rather than sua sponte participation - and the extent to which such efforts are appropriate on the part of federal judges. In addition, the evidence suggests that views such as those of the 62 Ninth Circuit public defenders may represent, in some cases, not the views of the attorneys themselves, but rather the office policies laid down by their office chiefs. The paper finally seeks to put this study into context with studies conducted within the past year on similar subjects, using different methodologies, by the Federal Judicial Center and the Administrative Office of the Courts.
The Supreme Court Opinion as Institutional Practice explores historical transformations in practices of Supreme Court decision-making and opinion-writing. It compares the Court's modern practices to those that existed during the era of the Taft Court, from 1921 through 1929. Many of these differences should be understood in the context of the Judiciary Act of 1925, which transformed the Court from a tribunal of last resort into a supervisor of the development of federal law. The article discusses in detail two major changes in the Court's decision-making practices. The first concerns dissent. During the 1921 through 1928 Terms, 84% of the Court's published opinions were unanimous, whereas during the 1993 through 1998 Terms, only 27% of the Court's published opinions were unanimous. Examination of docket books, however, reveals that in the Taft Court era only about 50% of the Court's cases were unanimous at conference. Intra-Court memoranda indicate that there was a strong "norm of acquiescence", which induced Justices to join opinions with which they disagreed. This norm was sustained by a view of law as primarily embodying the virtues of certainty and reliance. When the Court came to see law as an instrument for the achievement of human purposes, the norm of acquiescence was undermined from within. Also undercutting the norm was the Court's growing recognition of the interdependence of law and political will. The second decision-making practice discussed in detail concerns the citation of law review literature. Between the 1921-1928 Terms and the 1997 Term, references to this literature have increased more than twenty-fold. This change reflects a transformation of the Court's concept of its own judicial authority, from a view primarily grounded in the positive authorization of the state to a view primarily oriented toward the attainment of legal purposes.
Constitution Revision Comm'n, Background Study for California Constitution Revision Commission on Article VI pt
- Id
Id. (alteration in original) (quoting Cal. Constitution Revision Comm'n, Background
Study for California Constitution Revision Commission on Article VI pt. 3, at 4-5 (1964)).
West 2004) (demanding written explanation whenever the court grants child custody to a sex offender or child abuser); see also
- Cal Fam
Cal. Fam. Code § 3030(a)(1) (West 2004) (demanding written explanation whenever the
court grants child custody to a sex offender or child abuser); see also Fed. R. Civ. P. 65(d)(1)(A)
(requiring written reasons for orders granting injunctions).
To dispense with the phrase "his or her" (and its permutations), this Note follows the conventions of the California Evidence Code
To dispense with the phrase "his or her" (and its permutations), this Note follows the
conventions of the California Evidence Code. Cal. Evid. Code § 9 (West 2004) ("The masculine
gender includes the feminine and neuter.").
- Overton V White
Overton v. White, 64 P.2d 758, 759 (Cal. Ct. App. 1937)
(citing an unpublished opinion).
) (touching on modern justifications for the no-citation rules), vacated as moot on reh'g en banc, 235 F
Judicial Council Report, supra note 21, at 15; see
also Anastasoff v. United States, 223 F.3d 898, 901 (8th Cir.) (touching on modern justifications for the
no-citation rules), vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000).
rejecting the notion that the nocitation rule is necessary in the digital age because of unequal access to unpublished opinions)
- L Hofstra
- Rev
Hofstra L. Rev. 1215, 1219 (2004) (rejecting the notion that the nocitation rule is necessary in the digital age because of unequal access to unpublished opinions); id.
("Whatever merit this argument had years ago, it reflects a world that no longer exists.").
With today's methods of computerbased legal research, all such obstacles are bypassed
- Id
- Barnett
Id.; see also Barnett, Deflating, supra note 22, at 549 ("With today's methods of computerbased legal research, all such obstacles are bypassed.").
supra note 304; see also Sepulveda v. Wal-Mart Stores
- Simons
Simons, supra note 304; see also Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229, 242, 250
2005) (discussing an unpublished case)
Kalantar v. Lufthansa German Airlines, 402 F. Supp. 2d 130, 139 (D.D.C. 2005) (discussing an
unpublished case); In re Heritage Bond Litig., No. MDL 02-ML-1475 DT, 2004 WL 1638201, at *3-4,
*7-8 (C.D. Cal. July 12, 2004) (citing an unreported case);
- V J P Sumitomo Corp
Sumitomo Corp. v. J.P. Morgan & Co., Inc.,
No. 99 Civ. 8780(JSM), 2000 WL 145747, at *2 (S.D.N.Y. Feb. 8, 2000) (citing an unreported case);
at 1221 (pointing out that lawyers necessarily read unpublished opinions to keep up with legal trends); see also Restatement (Third) of the Law Governing Lawyers § 120 reporter's note cmt
- Fox
Fox, supra note 326, at 1221 (pointing out that lawyers necessarily read unpublished opinions
to keep up with legal trends); see also Restatement (Third) of the Law Governing Lawyers § 120
reporter's note cmt. c (2000) (same);
Manual for Complex Litigation (Fourth) § 21
- David F Herr
David F. Herr, Manual for Complex Litigation (Fourth)
§ 21.132 (2009 ed. 2009) (citing an unpublished decision);
2008) (same); The Bluebook: A Uniform System of Citation B4.1.4, at 11 (Columbia Law Review Ass
- Kelly Weisberg
- Emanuel Law Outlines
D. Kelly Weisberg, Emanuel Law
Outlines: Family Law 64, 70 (2d ed. 2008) (same); The Bluebook: A Uniform System of Citation
B4.1.4, at 11 (Columbia Law Review Ass'n et al. eds., 19th ed. 2010) (noting the frequent practice of
citing unreported decisions).
See authorities cited supra note 333. 336. Schmier v. Cal. Supreme Court
See authorities cited supra note 333.
336. Schmier v. Cal. Supreme Court, 93 Cal. Rptr. 2d 580, 587 (Ct. App. 2000).
101 P.2d 1106, 1109 (Cal. 1940) (explaining that while legislation may be convenient, any legislation still must be subordinate to constitutional provisions
- See Chesney V
- Byram
See Chesney v. Byram, 101 P.2d 1106, 1109 (Cal. 1940) (explaining that while legislation may
be convenient, any legislation still must be subordinate to constitutional provisions, further the
purpose of the applicable constitutional provision, and must not attempt to narrow or flout the
provision).
26 (1859), superseded by constitutional amendment
- Houston V Williams
Houston v. Williams, 13 Cal. 24, 26 (1859), superseded by constitutional amendment, Cal.
Const. art. VI, § 14.
Trial Lawyers, Opinions Hidden, Citations Forbidden: A Report and Recommendations of the American College of Trial Lawyers on the Publication and Citation of
- William T Hangley
- Am
- Coll
William T. Hangley, Am. Coll. Trial Lawyers, Opinions Hidden, Citations Forbidden: A
Report and Recommendations of the American College of Trial Lawyers on the Publication
and Citation of Nonbinding Federal Circuit Court Opinion 12 (2002).
Deflating, supra note 22, at 543 (urging study of depublished opinions for trends). 354. Id
- See Barnett
See Barnett, Deflating, supra note 22, at 543 (urging study of depublished opinions for trends).
354. Id. at 543-44.
Superior Court, No. B163692
- E G See
- Neu V
See, e.g., Neu v. Superior Court, No. B163692, 2003 WL 1928397, at *2 n.8 (Cal. Ct. App. Apr.
24, 2003) (distancing itself from Fairfield v. Superior Court, 54
721 (Ct. App. 1966), and purporting to warn the bar)
- Cal Rptr
Cal. Rptr. 721 (Ct. App. 1966), and
purporting to warn the bar).
356. Id.
357. Id.
2004) (approving citation to unpublished decisions of other states)
- Lebrilla V. Farmers
- Grp
- Inc
Lebrilla v. Farmers Grp., Inc., 16 Cal. Rptr. 3d 25, 31 (Ct.
App. 2004) (approving citation to unpublished decisions of other states).
) (upholding the no-citation rule against a First Amendment attack)
Cal. July 27, 2009) (upholding the no-citation rule against a First Amendment attack).
361. Id.
25 (1859), superseded by constitutional amendment
- Houston V Williams
Houston v. Williams, 13 Cal. 24, 25 (1859), superseded by constitutional amendment, Cal.
Const. art. VI, § 14.
363. Id. (emphasis added).
at 25 (holding a statute requiring written decisions to be unconstitutional)
- Houston
Houston, 13 Cal. at 25 (holding a statute requiring written decisions to be unconstitutional).
367. Id.
Supreme Court, No. C 07-5107 TEH
- E G See
- Hild V
- Cal
See, e.g., Hild v. Cal. Supreme Court, No. C 07-5107 TEH, 2008 WL 544469, at *1 (N.D. Cal.
1975) (stressing the importance of public perception to the judiciary's efficacy)
- See Wood V
See Wood v. City Civil Serv. Comm'n, 119 Cal. Rptr. 175, 179 (Ct. App. 1975) (stressing the
importance of public perception to the judiciary's efficacy).
dissenting); see also Judicial Committee Report, supra note 31, at 29 ("History has taught us that the lack of information concerning the operation of any branch of our government brings with it correspondingly less responsible officials
- J Stewart
Ginzburg v. United States, 383 U.S. 463, 498 (1966) (Stewart, J., dissenting); see also Judicial
Committee Report, supra note 31, at 29 ("History has taught us that the lack of information
concerning the operation of any branch of our government brings with it correspondingly less
responsible officials.").