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News :: Miscellaneous |
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Federal Judiciary's On-Going Contribution To Secret Government |
Current rating: 0 |
by Steven Aftergood via ML
(No verified email address) |
15 May 2001
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The American judicial system is becoming increasingly unpredictable due to the widespread practice of withholding appellate court decisions from publication. Because court rulings cannot be cited as precedent unless they are published, critics say that unpublished decisions undermine judicial consistency, erode litigants' expectation of equal protection under the law and encourage ad hoc rulings by judges. |
UNPUBLISHED COURT DECISIONS CHALLENGED
Thirty years ago, all decisions were published and could be cited as precedent. In the US Court of Appeals today, 85% of all decisions are said to be unpublished following a slow, steady mutation of judicial practice under the pressure of increased litigation.
The problem was highlighted by a peculiar May 4 ruling in the US Court of Appeals for the Ninth Circuit.
The Court was considering whether to impose sanctions on an attorney because she cited an unpublished opinion in a brief, in defiance of Court rules. In the end, the Court decided not to impose the sanctions but warned that this was a unique case and others might not be so lucky.
The underlying issue in the case, it might be noted, was whether or not the police are required to give warning to a suspect before unleashing a police dog. That serious question remains legally unsettled because the Court's decision on that point remains unpublished and therefore cannot serve as precedent or as a reliable basis for police procedure.
In what might be a first, the Ninth Circuit cited the U.S. Supreme Court's widely reviled decision in Gore v. Bush -- which terminated the 2000 election -- to justify its insistence that its ruling applied only to the present case. (The Supreme Court had stated there that "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.")
See the text of the May 4 Ninth Circuit ruling here:
http://www.fas.org/sgp/news/2001/05/sorchini.html
Michael Schmier, who was a candidate for Attorney General in California in 1998, was prevented by the California Supreme Court from including discussion of this issue in his candidate statement that was mailed to California voters. His statement, which was entirely blanked out in the voter handbook, included these remarks:
"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 correct abuses, is prevented."
Schmier's brother, attorney Ken Schmier, leads a burgeoning campaign to reverse the trend toward nonpublication of judicial decisions. He has assembled a variety of resources on this issue which are available here:
http://www.nonpublication.com/
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists Project on Government Secrecy.
To SUBSCRIBE to Secrecy News, send email to <majordomo (at) fas.org> with this command in the body of the message: subscribe secrecy_news [your email address] |
See also:
http://www.fas.org/sgp/news/2001/05/sorchini.html
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