Quotations

"I ask you to uphold the values of America, and remember why so many have come here. We are in a fight for our principles, and our first responsibility is to live by them."

George W. Bush, Address to Congress, September 20, 2001

Judiciaries have maintained and expanded the 'non-publication' rules by refusing to hear challenges to their propriety. But recently, in the case of Anastasoff v. United States of America, Judge Arnold, together with Judges Heaney and Magnuson, held,

"...the portion of Rule 28A(i) that declares that unpublished opinions are not precedent is unconstitutional under Article III, because it purports to confer on the federal courts a power that goes beyond the 'judicial'."

Judge Richard S. Arnold, Judge of the United States Court of Appeals, Eighth Circuit, in Anastasoff v. United States of America

"At bottom, rules like our Rule 28A(i) assert that courts have the following power: to choose for themselves, from among all the cases they decide, those that they will follow in the future, and those they need not. Indeed, some forms of the non-publication rule even forbid citation. These courts are saying to the bar: 'We may have decided this question the opposite way yesterday, but that does not bind us today, and what's more, you cannot even tell us what we did yesterday.' As we have tried to explain in this opinion, such a statement exceeds judicial power, which is based on reason, not fiat."

Judge Richard S. Arnold, Judge of the United States Court of Appeals, Eighth Circuit, in Anastasoff v. United States of America

"The case is not alone considered as decided and settled; but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them, when they first emigrated to this country; and it is, and always has been considered, as the great security of our rights, our liberties, and our property. It is on this account, that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles."
"This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the constitution. It was required, and enforced in every state in the Union; and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the excercise of mere discretion, and to the abandonment of all the just checks upon judicial authority."

Judge Richard S. Arnold, Judge of the United States Court of Appeals, Eighth Circuit, in Anastasoff v. United States of America

More Quotations

"The availability of unpublished opinions, on computer databases or otherwise, varies from case to case and from circuit to circuit. The lack of uniform availability of decisions poses serious problems for litigants in all circuits by creating confusion about what the law is and where it can be found. Several circuits do post their opinions on the Internet or a comparably accessible database. We recommend that all circuits do so. Moreover, we support development of a publicly available database, with an appropriate media-neutral citation system, for long-term access to all federal judicial decisions."

Submission of The United States Department of Justice to the Commission on Structural Alternatives for the Federal Courts of Appeals

"The California Supreme Court has caused a major flaw undermining our legal system. I want it fixed now. Appellate court rulings are no longer published for all to see. Secret rulings do not serve as future guidelines, even in the same court. They enable judges to ignore the law, knowing this injustice is hidden. Corruption and arrogance fester at every level because precedent is destroyed. Feedback to the public, necessary to prevent abuses, is prevented. I will ensure that this and other justice flaws are fixed, not buried. The foundation of law and order is order under law."

Michael K. Schmier, candidate for Attorney General, statement submitted for Voter Handbook, 1998 primary. Chief Justice Ron George, for the California Supreme Court, refused to allow this statement to be published in the Official Voter Handbook . A blank page was published in its place, possibly costing him the election. The Chief Justice and three other Supreme Court Justices were running for retention in the same election cycle.

"The advent of virtually costless on-line publishing with no need for books or shelves makes nonpublication more questionable than ever. In general, it’s the dark side of the judicial process that ought to be brought into daylight."

Stephen F. Barnett, Professor, University of California, Berkely, Boalt School of Law. San Francisco Daily Journal March 9, 1998, Publish is his Platform by Peter Blumberg

"Chief Justice Ronald M. George, like many other appellate judges, defends nonpublication as a "necessary evil to chill the development of the law."
In an interview last week, George said it would be "folly" to abandon the nonpublication rule and force the legal system to reconcile cases that are essentially insignificant.

"You’d have a difficult time separating the wheat from the chaff if you published everything," the Chief Justice said."

San Francisco Daily Journal, March 9, 1998 Publish is his Platform by Peter Blumberg

Whether published or not, a decision by a court is a statement of the rule of law and holding by that court and, absent a rule to the contrary, "a court can properly notice a doctrine or rule of law from such prior case and apply that principle under the theory of stare decisis M/V Am. Queen, 708 F.2d at 1941…. The Attorney General's reliance on Ninth Circuit Rule 36-3 is misplaced. That rule, a local rule of the Ninth Circuit, does not govern the citation of cases decided by district courts. The circuit has previously emphasized that the circuit rule "prohibits citation to or by this [circuit] court of unreported decisions of this [circuit] court" Committee of Central Am. Refugees, 795 F.2d at 1438 n.5 (emphasis original). "Neither the Ninth Circuit Rules nor the local rules of [this district court] prohibit the citation of unreported district court opinions." The Attorney General's objection to Clair's citation to unpublished district court decisions is OVERRRULED.

Judge Gary Taylor, United States District Judge, Central District Federal Court From a Federal Court order in a capital case.

Section 16 - Mr. Busterud had suggested at the May Commission meeting that the Committee consider making only published opinions available for citation as precedent. MC- Kleps - reject suggestion prohibiting citation of unpublished opinions as precedent. Mr. Kleps noted that the Judicial Council could do this by rule. Mr. Selvin stated that Illinois once has such a provision which lawyers and judges ignored so that it was repealed. He felt that since law review articles and everything else is being cited to courts that to adopt this section would be "a constitutional prohibition on enlightenment." (emphasis added)

Minutes of the Meeting of the [Constitutional Revision] Committee on Article VI, July 9, 1965 at the International Hotel, Los Angeles.

"Mr. Schmier claims that in California the law has become inaccessible as a result of Court Rules 976 and 977 issuing from the State Supreme Court. Courts can withhold publication of appellate opinions and prohibit citing those unpublished opinions in legal actions. In addition Court Rule 979 codifies depublication of previously published legal opinions. According to the June, 1999 issue of "California Lawyer," 60 court of appeals opinions are depublished every year. These opinions are "erased as precedents while letting the decisions stand." The only other state allowing depublication is Arizona and then to a very small extent. "…Mr. Schmier has brought a serious issue to Marin's attention." (Emphasis added).

Human Rights Commission Response to IJ Editorial by Mayme Hubert and Carole Hayashino, Chair and Vice-Chair Marin County Human Rights Commission

The California First District Court of Appeal ruled the state’s Ellis Act protected a landlord from the San Francisco’s hotel preservation ordinance. The ruling was made in an unpublished decision:

"The hotel ordinance is not endangered by this decision," (deputy City Attorney) Schwartz said. "It’s not precedent; it doesn’t bind anybody"

S.F. Landlord Wins Court Fight Over Replacing Units San Francisco Chronicle 1/28/99 by Jason B. Johnson.

"The obstacle to citation is Rule 977 of the California Rules of Court, the so-called non-citation rule. (Footnote illegible). It is our view, for reasons to be elaborated that the rule is invalid for at least two reasons: (1) It violates basic concepts of the doctrine of stare decisis, (2) It is contrary to the superior command of Civil Code Section 22.2. The rule is likewise constitutionally suspect, since it can be argued that in criminal cases, at least, it deprives a defendant the right to cite a case otherwise favorably controlling his fate. (illegible) …equal protection of the laws."
Final pages of decision identifying authors is missing.

People v. Valenzuela filed April 26, 1978 Superior Court No. CR A 16021 Municipal Court of the Beverly Hills Judicial District No. M-63478 Opinion and Judgment of the Appelate Department of the Superior Court of the State of California for the County of Los Angeles. Certified for Publication. Case Removed by the Appellate Court, Decision Vacated and case decided on other grounds. Only a poor copy of this decision can be found.

"We think it is dangerous to a democratic society to have more than 93% of all criminal cases considered by the appellate courts stamped for non-publication"

Rose Bird, later Chief Justice of the Supreme Court of California, State Bar of California Reports, Sept. 1974 quoted in People V. Valenzuela, Ibid.,

"[A] fair reading of rule 977 of the California Rules of Court surely allows citation to the unpublished opinion. To hold otherwise leaves us in the Orwellian situation where the Court of Appeal opinion binds us, under Auto Equity Sales v. Superior Court, 57 Cal.2d 450, 20 Cal.Rptr.321, 369 P.2d 937, but we cannot tell anyone about it. Such a rule of law is intolerable in a society whose government decisions are supposed to be free and open and whose legal system is founded on principles of the common law (Civ. Code, § 22.2) with its elementary reliance on the doctrine of stare decisis."

Presiding Judge Cole’ concurrence, County of Los Angeles v. Wilshire Insurance Co. (1978) 103 Cal. App. 3d Supp.1, 3, 163 Cal. Rptr. 123, 124.

"I would no more say that what [Justice Souter] calls "selective prospectivity" is impermissible because it produces inequitable results than I would say that the coercion of confessions is impermissible for that reason. I believe that the one, like the other, is impermissible simply because it is not allowed by the Constitution. Deciding between a constitutional course and an unconstitutional one does not pose a question of choice of law."

Justice Scalia with whom Justice Marshall and Justice Blackmun join, concurring in the judgment in James B. Beam Distilling Co. v. Georgia 501 U.S. 529, 548 111 S.Ct. 2439, 2450 (1991)

“We would have chaos and not the rule of law if each judge in the land did simply what he or she thought was right instead of what the law requires.”

Justice Ginsberg, on the children's broadcast Nick News: Nick News (Channel 36, San Francisco Area, television rebroadcast, Dec. 27, 1997).

"Nevertheless, in the interests of improving the administration of justice, the quality of legal practice, the orderly growth and development of this state’s decisional law, and the operation of the selective publication system itself, the committee believes that providing convenient and inexpensive access to the body of unpublished decisions is highly desirable."

Report of the Chief Justice’s Advisory Committee for an Effective Publication Rule .June 1, 1979, pg 15

If an inexpensive, convenient access system proves feasible, the policy of non-citation should be reconsidered.

Report of the Chief Justice’s Advisory Committee for an Effective Publication Rule .June 1, 1979, pg 18

"If I cannot give a reason I should be willing to stand to [publish as precedent], I must shrink from the very result which otherwise seems good."

U.S. Supreme Court Justice John Paul Stevens
County of Los Angeles et.al. vs. Kling
474 U.S. 936 at 937 (1985)

"Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example."

U.S. Supreme Court Justice Louis Brandeis

"If the government becomes a law breaker, it breeds contempt for law; it invites everyman to become a law unto himself; it invites anarchy."

U.S. Supreme Court Justice Louis Brandeis

"An imperfectly reasoned and generally result-oriented opinion may be buried in a non-publication grave. A panel may avoid public heat or appointing authority disapprobation by interring an opinion of real precedential value. More frequently, a panel may make a mistake, and fail to publish an opinion."

California Associate Justice Robert S. Thompson,
California State Bar Journal, Nov./Dec. 1975

"[A]ll rulings of [the] court are precedents, like it or not, and [the court] cannot consign any of them to oblivion by merely banning their citation…No matter how insignificant a prior ruling might appear to us, any litigant who can point to [it] and demonstrate that he is entitled to prevail under it should do so as a matter of essential justice and fundamental fairness."

U.S. District Judge William J. Holloway, Jr.
10^th Circuit
In re Rules 955 F.2^nd 38

"Here I am going nuts because of this opinion that 10 years ago no one would've known about, and that can't even be cited in the jurisdiction it came from. With unlimited resources to pay for electronic searches, the entire insurance industry knows about this opinion and is using it as authority in settlement negotiations"

Tampa, Florida Attorney William "Chip" Merlin
As quoted by Richard C. Reuben, "New Cites For Sore Eyes," ABA Journal, June, 1994

"[Those who choose what opinions to publish] may consciously decide to suppress an opinion they know to be significant enough to publish either to escape review by a higher court, to escape criticism for a controversial decision, or even to allow a court to get away with making a decision contrary to prevailing law"

Robert S. Gerstein,
"Law by Elimination: Depublication in the
California Supreme Court"
67 Judicature, No. 6 (December-January 1984)

"[A] rule which authorizes any court to censor the future citation of its own opinions or orders rests on a false premise. Such a rule assumes that author is a reliable judge of the quality and importance of his own work product. If I need authority to demonstrate the invalidity of that assumption, I refer you to a citizen of Illinois who gave a brief talk in Gettysburg, Pennsylvania that he did not expect to be long remembered. Judges are the last persons who should be authorized to determine which of their decisions should be long remembered."

U.S. Justice John Paul Stevens,
Illinois State Bar Association Centennial Dinner,
Springfield, Illinois, January 22, 1977

"Gaius Caligula passed many new laws that were never published. When the people complained, he ordered it posted up, but in a very narrow place and excessively small letters, to prevent the making of a copy.' Suetonius, The Lives of the Twelve Caesars 192 (J. Gavorse ed. 1931)"

J. Myron Jacobstein,
"Some Reflections of the Control of the Publication of
Appellate Court Opinions,"
27 Stanford L. Rev. 791 (Feb. 1975)

"The goal of a public judiciary, free from the specter of secret adversarial lobbying, is critically dependent upon the relationship between rules of publication and the doctrine of Stare Decisis. To the extent that precedential opinions may be deleted by the Supreme Court without explanation or opinion, that doctrine is undermined and the orderly development of the law is thwarted."

Julie Hayward Biggs, "
Censoring the Law in California: Decertification Revisited,"
30 Hastings Law Journal 1577 (May 1979)

"Requiring all decisions to be supported by a written opinion and to be published would best advance the error correction goal... publication of a written opinion appears to be the only practical way of insuring uniform declaration of a law... publication of written opinions reinforces the public's respect for and understanding of the judiciary."

J. Clark Kelso,
"A Report on the California Appellate System,"
45 Hastings Law Journal 433 (March 1994)

"Abolition of the no-citation rule could help eliminate the idea that non-publication is a rug under which the judges sweep whatever they wish never to see the light of day."

Edwin R. Render,
"On Unpublished Opinions,"
73 Kentucky Law Journal 164 (1984-85)

"Finally, the courts have abandoned the notion of one appellate method for all cases and all litigants. The significant cases, those brought by wealthy, powerful, or institutional litigants -- receive the traditional approach model. The routine, trivial cases -- usually the ones brought by poorer, weaker litigants -- are relegated to two-track appellate justice. For these cases (about half the total) the circuit courts have become certiorari courts, rather than courts of mandatory, appellate jurisdiction that Congress intended."

William M. Richman and William L. Reynolds,
"Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition,"
81 Cornell Law Review 273

"We have been forced to adopt... shortcuts to cope with the rising volume: we hear fewer oral arguments, publish fewer opinions and rely more heavily on law clerks and staff attorneys. The heavy volume of cases threatens the ability... to give each case the attention and care it deserves."

J. Clifford Wallace, "
Developing the Mission of the Federal Courts
-- A Method to Determine the Size of the Federal Judiciary,"
27 Connecticut Law Review 851, 858 (1995)

"Tying up the question of dissenting with publication may work adversely on the dissenter, constraining him not to dissent...

Federal Circuit Judge Philip Nichols, Jr.,
Introduction, "Selective Publication of Opinions: One Judge's View,"
35 American University L. Rev. 909, 920 (1986)

With non-publication "stare decisis is twice diminished. First, the decision itself is freed from their responsibility to reason within the full view. Second, an increment of precedent is rendered unusable."

Thomas D. Baker, "
Rationing Justice on Appeal: The Problems of the
U.S Courts of Appeal," 130 (1994)

"Barring citation does not prevent the use of unpublished opinions; it merely alters the character of that use."

Kurt Shuldberg,
"Digital Influence: Technology and Unpublished Opinions
in the Federal Courts of Appeals,"
85 California Law Review 541

"I submit that stare decisis cannot operate as a `workable doctrine' as long as courts, while adjudicating sets of identical facts, are able to reach directly contrary results on diametrically opposed legal theories, by the simple expedient of publishing one set of results but not the other."

Gideon Kanner,
"The Unpublished Appellate Opinion: Friend Or Foe?"
48 California State Bar Journal 387 (1973)

"Certainly, the objectives of the law courts cannot be merely to resolve as many cases as quickly as possible. To do that we need only toss two-sided coins, although two-headed coins might even more efficient."

Prof. Philip B. Kurland, quoted in Rosen and Rosen,
"Evolution or Revolution in the Courts?"
78 Case & Comment 20, 26 (March-April 1973)

"Unlike the executive branch of the national government with its arguable (if occasionally abused) national security concerns, or matters of police intelligence, the courts have nothing to hide."

Gideon Kanner,
"The Unpublished Appellate Opinion: Friend Or Foe?"
48 California State Bar Journal 387 (1973) [Italics in original]

"Justice must not only be done, it must appear to be done. The authority of the federal judiciary rests upon the trust of the public and the bar. Courts that articulate no reasons for their decisions undermine that trust by creating the appearance of arbitrariness."

William L. Reynolds and William M. Richman,
"An Evaluation of Limited Publication in the United States Courts of Appeals:
The Price of Reform,"
48 The University of Chicago Law Review, 573 (1981)

"In our law... the exercise of a power to speak authoritatively as an interpreter carries with that an obligation to explain the grounds upon which the interpreter gives the authoritative judgment."

Jerry L. Mashaw,
"Textualism, Constitutionalism, and the
Interpretation of Federal Statutes,"
32 William and Merry Law Review 827, 838 (1991)

"By signing his name to a judgment or opinion the judge assures the parties that he has thoroughly participated in that process and assumes individual responsibility for the decision."

Owen M. Fiss,
"The Bureaucratization of the Judiciary,"
92 Yale Law Journal 1442, 1484 (1983)

"When circulated to me, the majority opinion approved by the two justices making up the majority was marked for Publication in the Official Reports. It was only after I had circulated my dissenting opinion to the two justices who make up the majority that they decided to reverse their original position regarding publication in the Official Reports. I do not think this reversal of position is justified."

Justice Bernard Jefferson,
dissent, in People vs. Para, No. CRA 15889
(California Court of Appeals, Aug. 1979)

"In a government, which is emphatically styled a government of laws, the least possible range ought to be left to the discretion of the judge. Whatever tends to render the laws certain, equally tends to limit that discretion; and perhaps, nothing induces more to that object than the publication of reports. Every case decided is a check upon the judge: he cannot decide a similar case differently, without strong reasons, which, for his own justification, he will wish to make public. The avenues of corruption are thus obstructed, and the sources of litigation closed."

William Cranch, 1 United States Reports (5 U.S.) iii (1803)

"The `precedential importance' of an opinion... cannot be predetermined by its author. The Rather, the attorney wishing to rely on the opinion in a subsequent matter is in a better position to decide whether the opinion is worth citing."

Edwin R. Render,
"On Unpublished Opinions,"
73 Kentucky Law Journal 153 (1984-85)

"Any decision is by definition a precedent and...we cannot deny litigants and the bar the right to urge upon us what we have previously done."

Fourth Circuit, Jones vs. Superintendent, Virginia State Farm,
465 F.2d 1091, 1094 (4^th Cir. 1972),
cert. denied 410 U.S. 944 (1973)

"Stare decisis provides some moorings so that men may trade and arrange their affairs with confidence. Stare decisis serves to take the capricious element out of law and to give stability to a society."

U.S. Justice William O. Douglas,
"Stare Decisis,"
49 Columbia Law Review 736

"The labor of judges would be increased almost to the breaking point if…one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him."

Benjamin N. Cardozo,
"The Nature of the Judicial Process, 149 (1921)

"Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants…"

U.S. Justice John Paul Stevens,
Izumi Seimitsu Kogyo Kabushiki Kaisha vs. U.S. Philips Corp.,
114 S. Ct. 431

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