Monday, March 21, 2016

"Do Not Publish" stamp on appellate opinion might be a sign that you got screwed--and that Antonin Scalia's wealthy friend got a fishy favorable outcome

Eleventh Circuit Court of Appeals
in Atlanta
Why should an unpublished opinion favoring Antonin Scalia's wealthy hunting buddy--the man who owned the ranch where Scalia died last month--raise eyebrows?

It's because unpublished opinions enhance the possibility of judicial corruption--and the likelihood that it will be covered up. Being tagged "unpublished" means they are not likely to see the light of day--and if they do, they won't be taken seriously. Hence, the possibility for hanky-panky, which is likely to favor connected individuals--such as Scalia's friend John B. Poindexter.

Even one of the nation's leading experts on legal ethics considered unpublished opinions to be a dubious practice. (More on that below--and in an upcoming post.) We agree with him and here, based on research and personal experience, is why:

If you ever are involved in a federal-court case and decide that the trial court's finding is wrong and must be appealed, you will go through a lengthy and expensive process and likely wind up with an opinion that upholds the trial court and carries a "Do Not Publish" stamp in the upper right-hand corner.

A 2009 report in The National Law Journal found that more than 85 percent of opinions issued in the Eleventh Circuit (covering Alabama, Georgia, and Florida) are stamped "Do Not Publish." The Fourth Circuit (Virginia, West Virginia, North Carolina, South Carolina, and Maryland) had the highest percentage of unpublished opinions (95 percent). From 2000-2008, the national rate for unpublished opinions topped 81 percent.

In theory, "Do Not Publish" opinions allow appellate judges to decide that certain cases have no precedential value and can be struck from the official record, so as not to clutter up the federal reporters that carry binding case law. In reality, unpublished opinions can be used to cheat litigants, especially every-day citizens who, courts probably assume, can't understand legal writing anyway.

I know because I've had it happen to me three times. Contrary to what federal judges might think, many regular folks can read simple declarative sentences. That, plus the ability to conduct relatively simple online research, is enough to allow you to understand many court opinions--if you take the time to read them closely, without allowing your eyes to glaze over.

Am I a lone voice, howling in the wilderness about this issue? Not by a long shot. The Web site published an article in 2006 titled "Non-published and non-precedential opinions stealthily harm the innocent." From the article:

Use of non-published opinions, which with very rare exceptions are non-precedential, has reached the point that they are a significant factor affecting the handling and outcome of state and federal civil and criminal cases.
The innocent are one class of litigants affected by the surreptitious and pervasive use of nonpublished opinions. They are likely affected more profoundly than any other identifiable group, because non-published opinions are being used by judges (and prosecutors) as a tool to deny under the cover of darkness the very thing the courts are not just touted as offering, but which is their very reason for existing — to offer litigants the opportunity for “justice. . . .”

Any institutional procedure that undermines the likelihood that a person will be fairly and impartially treated is unacceptable in a society committed to observing “justice” as a real and vibrant guidepost, and not just a meaningless catchphrase intended to placate the masses of people who will never find out how illusory of a concept it can be within the four corners of a courtroom.

Whew, I wish I had written that. Those are some of the most powerful words ever published here at Legal Schnauzer. And Justice Denied did not stop there. It quoted the late Monroe H. Freedman, who was professor and former dean at the Hofstra University School of Law. The following words are from a 1989 speech, so you can only imagine how bad the situation is now:

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges.

I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.”

That's not a "crazed blogger" talking. Those are the words of a law professor and former dean who lectured annually for 30 years on legal ethics at Harvard Law School. You can't get much more eminent in the field than that, and Monroe Freedman pulled no punches about the reality of modern courtrooms.

Heck, some judges have recognized profound constitutional issues that unpublished opinions raise. From The National Law Journal:

In 2000, the 8th Circuit went so far as to declare that a circuit rule allowing unpublished opinions without precedential value violated Article III of the Constitution. See Anastasoff v. U.S., 223 F.3d 898 (8th Cir., 2000)Judge Richard S. Arnold’s opinion held that the “judicial power” in Article III, though undefined, is limited and that courts do not have the power to issue decisions—whether published or unpublished—without precedential value, because precedent is the very foundation of the common law system. Although later vacated on other grounds, 235 F.3d 1054 (8th Cir. 2000), the decision generated much debate among judges and legal scholars.

Even the U.S. Supreme Court has recognized the problems inherent with unpublished opinions. Again, from The National Law Journal:

The Supreme Court has criticized the practice of issuing unpublished decisions in consequential cases. Reversing an unpublished 4th Circuit decision, the Supreme Court “deem[ed] it remarkable and unusual” that, in holding an Act of Congress unconstitutional, the court of appeals “found it appropriate to announce its judgment in an unpublished per curiam opinion.” U.S. v. Edge Broadcasting Co., 509 U.S. 418, 425 n.3 (1993). Similarly, Justice John Paul Stevens’ dissent in County of Los Angeles v. Kling, 474 U.S. 936, 938 (1985), denounced the 9th Circuit’s decision not to publish its opinion as “plainly wrong,” likening it to “spawning a body of secret law.”

I would argue that all federal appeals are "consequential" to the parties involved, and that all appellate opinions should be published and kept in reporters. That would go a long way toward forcing appellate judges to issue honest and legally sound opinions. I also would point out to Justice Stevens that the Ninth Circuit hardly is alone in "spawning a body of secret law." In reality, an alarming number of appellate judges create a body of rogue opinions, which do not represent actual law at all. I know it, Prof. Monroe H. Freedman knew it--and now, you know it.

The late Prof. Monroe H. Freedman
How does this work in the real world? I'm going to show you exactly how "Do Not Publish" opinions were used to cheat my wife and me on federal appeals--not once, but three times. My hope is that this information will help readers understand what is happening if they find themselves in similar circumstances someday.

I will link to the opinions in each of my cases--such appellate rulings can be easily found on Google Scholar--and then briefly describe how each opinion is flawed and contrary to binding precedent. That goes to the reason that "Do Not Publish" is stamped on such opinions--they conflict with the actual law, and if published in reporters, would create mass confusion for lawyers, judges, and litigants. It would be like introducing a cancerous cell into an otherwise healthy body; if such a "cell" is published, and then multiplies with other rogue "cells," havoc ensues--and you no longer have a healthy body of law.

By the way, the Eleventh Circuit requires judges to issue opinions. It used to have Rule 36-1, which allowed for affirmances without opinions. But that rule was rescinded in 2006, supposedly because the court terminated very few cases in that fashion. Other circuits have varying rules, but in the Eleventh Circuit you are entitled to an opinion.

You are not, however, entitled to an honest, or legally justified, opinion. And if your opinion has "Do Not Publish" in the upper right-hand corner, that's a sign it might conflict with the actual law--meaning you've been screwed, just as I have been.

(To be continued)


Robby Scott Hill said...

At least Federal Appeals Judges issue opinions, even if they are not published. Alabama Appeals Courts are empowered to screw you with the "affirmed with no opinion." ruling.

Anonymous said...

Thank you, again, for a meaty article (non AM). I know...I know..more of those stories are coming, but this is the stuff that moves society and points out true injustice. I had NO clue this sort of stuff went on. Thanks for the coverage of this and I look forward to hear "the rest of the story" from someone who has been through it.

Keep up the good works like this, LS!

vintagecarole said...

Yip yip yip.

legalschnauzer said...

Good point, Rob. And state appeals, at least to me, are even more difficult (and maybe more expensive) to file than fed appeals. You get back a one-page affirmance that more or less says, "Thank you for allowing us to screw with you--and steal your money." I hear a judge never even sees many state-court appeals, and I believe it. Then the SOBs whine annually that the court system needs more money.

Anonymous said...

Very informative stuff, Mr. Schnauzer. Had no idea this is what happens to so many federal appeals.

Anonymous said...

How did the 11th Circuit get away with upholding the bogus conviction of Don Siegelman? That opinion was published, correct?

legalschnauzer said...

You ask an important question, @12:55. The opinion was published, but the mainstream press largely ignored all of the unlawful findings it contained. The public, to a great extent, didn't bother to find out that the court endorsed the incarceration of individuals for political reasons. If the press and the public are asleep at the switch, we've got problems.

Truthseeker said...

this is awful and the "judge for hire" law in Alabama is also. Its like legalized purchase of a verdict in your own favor. But the truth is, most judges have been for sale for a long time.

Anonymous said...

LS: When you originally posted the Poindexter ruling, I read it and am inclined to side with the court in this particular case.

The guy filed an age-discrimination lawsuit against one of Poindexter's small manufacturing subsidiaries (MIC) after he had volunteered to resign, rather than being fired, for admittedly poor performance. My sense is that the bigger villain in this case is the attorney who talked him into filing and probably took what little the guy had left.

This doesn't change the fact that Scalia was an inappropriate pick for the SCOTUS and that his opinions were fabulist rubbish, but this case is a distraction from why that is, IMHO.

legalschnauzer said...

Thanks for a reasonable, thoughtful comment, @6:04. (I haven't had many of those lately.)

You might prove to be right. I've researched the Poindexter case some, but still need to look into it further. As you probably know, employment-discrimination cases can involve a lot of factors.

My main point, so far, is that the court system is poorly served by unpublished opinions, and I have personal experience with situations where an unpublished opinion covered up judicial wrongdoing. That might not be the case with Poindexter, but I look forward to checking the case in detail and seeing what turns up. For now, I find it disturbing that the Poindexter opinion was unpublished.

Could not agree with you more about Scalia's opinions.

Robby Scott Hill said...

The Human Ego is the biggest barrier to moving our society forward. The lawyers & judges don't want folks outside their tribe climbing the social ladder. At the same time, every swinging dick wants his case heard before the Supreme Court of the United States & wants to get a judge or doctor's daughter pregnant with his child. If he's lucky enough to get with a beautiful, rich White Woman, he expects grandpa to pay for law school for him & his children. So, gramps has to fuck over the rest of us to pay for it all. The reality is most of us will toil away at low paying jobs & never get our debt collection cases published while we pay 1% of the guys to screw the best looking women. Human Behavior is the most difficult thing in this universe to change. It's why the aliens stop here to refuel their flying saucers, look around & move the fuck on as soon as possible. They saw what happened to our own Indians, Blacks, Jews & Women and they figured they'd be next. The Human Race is still in its infancy & your local bar association is mostly concerned with pacifying the worst tempers & making sure their kids have the best toys to play with. Humanity will be fucked up for a few thousand more years before it begins to get better. It's a truly broken system.

legalschnauzer said...

Rob: One of the best comments in the history of this, or any other, blog. Insightful and funny as hell.

Anonymous said...

"It's why the aliens stop here to refuel their flying saucers, look around & move the fuck on as soon as possible."