"Do Not Publish" stamp on appellate opinion might be a sign that you got screwed--and that Antonin Scalia's wealthy friend got a fishy favorable outcome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Why should an unpublished opinion favoring Antonin Scalia's wealthy hunting buddy--the man who owned the ranch where Scalia died last month--raise eyebrows?

It's because unpublished opinions enhance the possibility of judicial corruption--and the likelihood that it will be covered up. Being tagged "unpublished" means they are not likely to see the light of day--and if they do, they won't be taken seriously.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Even one of the nation's leading experts on legal ethics considered unpublished opinions to be a dubious practice.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through a lengthy and expensive process and likely wind up with an opinion that upholds the trial court and carries a "Do Not Publish" stamp in the upper right-hand corner.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more than 85 percent of opinions issued in the Eleventh Circuit (covering Alabama, Georgia, and Florida) are stamped "Do Not Publish."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Fourth Circuit (Virginia, West Virginia, North Carolina, South Carolina, and Maryland) had the highest percentage of unpublished opinions (95 percent). From 2000-2008, the national rate for unpublished opinions topped 81 percent.

In theory, "Do Not Publish" opinions allow appellate judges to decide that certain cases have no precedential value and can be struck from the official record, so as not to clutter up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 In reality, unpublished opinions can be used to cheat litigants, especially every-day citizens who, courts probably assume, can't understand legal writing anyway.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