10/10/00 9:55 a.m.
Taking Judicial Notice
Judges be praised!

By Robert V. Pambianco, chief policy counsel, Washington Legal Foundation

onservatives spend a lot of time complaining about the mischief of the judiciary, and so they should. However, occasionally judges get things right. For those who find this too much to believe, I call your attention to a recent case from the 8th Circuit Court of Appeals, the federal appeals court with jurisdiction over the Dakotas, Minnesota, Nebraska, Iowa, Missouri and Arkansas.

The case, Anastasoff v. United States, deals with a seemingly obscure legal issue: the precedential value of "unpublished" court decisions. But more fundamentally, it has to with accountability, specifically the accountability of the courts themselves.

Under the American system of common law as inherited from Britain, judges are bound to follow precedent from higher courts. Thus a federal trial court must adhere to decisions issued by the appropriate court of appeals, and the appeals court in turn must follow mandatory authority from the United States Supreme Court. Moreover, no court can depart from its own precedents without explaining the reasons for doing so.

The same system applies in the state courts. It may not be exciting, but it is a fairly straightforward concept meant to ensure a degree of consistency and predictability in the application of the law. The problem is that many courts — especially appeals courts — have adopted rules which say that unpublished decisions have no precedential value and cannot even be cited in future cases.

The term unpublished does not refer to whether a case is published in a book or even whether it is explained through a written opinion. Nor does it indicate some sort of secret decisions. Unpublished decisions exist in writing, and any member of the public can obtain them from the courthouse. For that matter, they often can be retrieved online.

Unpublished refers to when a court, for whatever reason, decides to designate a case as non-precedential, meaning essentially that the decision does not really exist beyond the immediate case. In essence, such a rule enables courts to decide cases in a vacuum. And many cases are regularly decided this way, including the majority of federal appellate decisions.

The Anastasoff case provides a perfect example. The case dealt with a claim for an income-tax refund, and it turned out that there was another case directly on point in which the same court said that given certain facts (i.e. facts similar to the Anastasoff case) a refund would be inappropriate. However, the case was marked unpublished, and thus the plaintiff argued that the court was not obligated to follow that earlier decision. In other words, because of its unpublished decisions rule, the court could decide this one differently.

The argument was completely valid, and thus it underscored the problems inherent in such a rule. A system that allows courts to overtly ignore prior decisions undermines the idea that like cases should be decided alike. Worse, it creates the perception that judges are making decisions for which they do not want to be held accountable.

Well, a panel of three judges said enough is enough, holding that a rule which allows courts to decide cases off the record is unconstitutional. Henceforth, when deciding cases, the court will do so knowing 1) that it will be held to that ruling in the future, and 2) that it cannot disregard a large volume of earlier decisions.

Judge Richard Arnold, a Clinton appointee who had been widely discussed as a possible Supreme Court nominee, wrote an opinion that should be required reading for all judges. Quoting Hamilton, Madison, Blackstone, and Lord Edward Coke, among other luminaries, he explained that the whole notion of precedent was intended as a limitation on the judicial power, and thus efforts to evade precedent amount to an improper attempt to expand that power beyond the limits of Article III of the Constitution.

The doctrine of precedent, said Judge Arnold, was "a crucial sign of the separation of legislative and judicial power." Obviously, where judges choose to depart from precedent without explanation or where they declare that certain cases have no precedential authority, they are not declaring what the law is so much as making it up on the fly.

Arnold observed that by arbitrarily deciding that certain cases will be placed outside the system, the effect is "to create an underground body of law good for one place and time only." Such rules "assert that courts have the following power: to choose for themselves, from among the many cases they decide, those that they will follow in the future, and those that they need not." In other words, the courts are acting in the role of a legislature.

In declaring the unpublished decisions rule unconstitutional, Judge Arnold and his colleagues have done much to restore accountability to one branch of the federal government, at least as it operates in the states that comprise the 8th Circuit Court of Appeals. Let's hope other courts are paying attention.