Toward Liberty and Justice for All

This web page is devoted to raising issues that protect the rule of law in the United States.  The rule of law consists of several important concepts:

Rule of law and due process are the bedrock upon which all American liberty and justice are based.  Untold numbers of American and Englishmen in history have paid a dear price in effort, fortune, and even life itself, to bequeath to us the rule of law.

Unfortunately, through neglect and design, if not protected, the rule of law and all those values which it protects and we hold dear can be undermined.  Over time, this page hopes to bring the American public's attention to dangers that are undermining the rule of law in America.

Three dangers are discussed on this site:

Unexplained Rulings Threaten Rule of Law

In 1972-73, with the stated rationale being the pressing caseload in the federal court of appeals, the Board of the Federal Judicial Center moved to make it permissible to not publish opinions that were routine or had no significant precedential value.  At that time, all court rulings always had an opinion written with it explaining the law as it applied to the decision made by the court and detailing the reasons upon which the judgment was based.

The new rule that limited what was published did not discuss eliminating the opinion that went with a ruling.  It simply said that written opinions would not be published or assumed to be cited as precedent in the future.

But quickly, once rulings were not published, a much more insidious practice emerged  -  a practice which has the potential to completely undermine the rule of law and the liberty and justice it protects in America.  The practice is that of the issuance by federal appeals courts of unpublished rulings that DO NOT STATE THE LEGAL RATIONALE FOR THEIR DECISION.  These types of rulings with no reasoning are called nonopinions.  Those nonopinions that are unpublished (the vast majority)  are called unpublished nonopinions or unexplained decisions.  Depending on the circuit, a nonopinion is called affirmance without opinion, summary order, summary disposition, summary opinion, unpublished order, disposition without opinion, abbreviated disposition, summary affirmance, judgment opinion, or simply, an order.  Some states call the practice per curiam affirmance.

Why are unpublished nonopinions such a threat to rule of law?

How bad is the current situation?

No one really knows.  By their very nature, unpublished nonopinions normally do not gain publicity.  The only known systematic study of this phenomenon was done by William Reynolds and William Richman in the University of Chicago Law Review in 1981 (48 U. Chi. L. Rev. 573 (1981).  In that paper, they found that in 1978-79 that the Third Circuit (Pennsylvania, New Jersey, and Delaware) issued 69.8% of its rulings as unpublished nonopinions.  The Fifth Circuit (Texas, Louisiana, and Mississippi) issued 24.4% of its rulings without any stated rationale.

The judiciary does publish some statistics on the topic, but they are suspect.  While Fifth Circuit Judge Robert M. Parker was on serving on the bench, he  said in a presentation about his circuit, "LOCAL RULE 47.6  This rule permits a case to be decided by a simple "Affirmed."  The statistics regarding the utilization of Local Rule 47.6 are deceiving however.  Most judges think that it is more politic to prepare a per curiam opinion of one-half to one and one-half pages saying in effect no more than "finding no error, the judgment is Affirmed."  The difference is one of form instead of substance." (emphasis added).  Additionally, the minutes of the Judicial Conference Advisory Committee on Appellate Rules of September 29, 1997 say:  "Ms. [Judy] McKenna [of the Federal Judicial Center] ... warned that the statistics kept by various circuits on this matter are sometimes misleading."

How many of those nonopinions resulted in unjust or inconsistent decisions?  We don't know.  All we can do is look at anecdotal evidence.  A systematic study of this topic by a law student or professor is sorely needed.

Inherent Powers Sanctions - Judiciary Ignores Law & Exercises Unfettered Power

Federal District Courts have inherent power to maintain decorum in the courtroom.  In other words, they have the power of contempt of court to fine or jail those who do not behave properly in court.  The term, "inherent power" has been defined as those which "are necessary to the exercise of all others".  Very few, if any, dispute this basic, common-sense concept.

But, a new practice has arisen since 1991 and a landmark Supreme Court case called Chambers v. NASCO, 501 U.S.  32 (1991).  Over time, the Congress, has written law and authorized procedural rules that control what actions a federal court may take and what actions it may not take for certain situations.  Under its U.S. Constitution, Article III, Section 1, the Congress establishes the inferior Courts, and implicitly has oversight of those Courts.  The decision in Chambers declared that in hard cases of practice in the Courts where it is difficult to obtain the result that the Courts want to achieve, but which is not allowed by Congressionally created law and authorized rules, the Court can extend, in an Orwellian manner, the concept of "inherent powers" to ignore certain Congressionally created procedural rules as it pertains to "fee shifting" of attorneys fees and expenses.  The American rule is that a plaintiff, if represented by counsel, cannot be punished for bringing a lawsuit and losing.  Yet, Chambers, allows district courts to ignore the law and force the loser to pay attorneys fees and expenses as a sanction if it finds that the plaintiff "acted in bad faith, vexatiously, wantonly, or for oppressive reasons."

This majority in the 5 to 4 decision, stated, "Because of their very potency, inherent powers must be exercised with restraint and discretion."  The majority then referred to Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980) for the example of the types of restraint and discretion that should be used.  In Roadway, the Court held that a mere holding, reciting the mantra of "bad faith, vexatiously, wantonly, and oppressive reasons" is not enough.  The district court must "make a specific finding as to whether counsel's conduct in this case constituted or was tantamount to bad faith."  Such "a finding that would have to precede any sanction under the court's inherent powers."

Of the five in the majority on Chambers, only two (Stevens and O'Connor) remain on the Court in 2002.  All of the original four in the minority (Rehnquist, Scalia, Kennedy, and Souter) remain on the Court.  Justice Anthony Kennedy, in his dissent also writing for Rehnquist and Souter, predicted of the majority decision in Chambers:  

        "Upon a finding of bad faith, courts may now ignore any and all textual limitations on sanctioning power.  By inviting district courts to rely on inherent authority as a substitute for attention to the careful distinctions contained in the rules and statutes, today's decision will render these sources of authority superfluous in many instances.  A number of pernicious practical effects will follow."  (emphasis added)

For an example of the type of pernicious effects Kennedy predicted, see Matta v. May, 118 F.3d 410 (5th Cir. 1997).  In that case, Joseph Matta, in his role as supervisor at the SEC, had been named in a sex discrimination suit.  The charges were later dropped.  In the course of the suit, S. Beville May, the attorney for the SEC employee bringing the charges, made some untrue statements to the Houston Chronicle about what the sex discrimination suit included.  She incorrectly stated, and the Chronicle reported that the Matta had, and the suit alleged that he had "overlooked rapes by other men in the six-person [Houston] office."

Matta, then, as a represented party, filed a libel suit against May.  It landed in Judge Kenneth Hoyt's courtroom, where he found a summary judgment against Matta.  May then requested attorney fees and expenses sanctions against Matta for bringing the suit.  In response, Judge Hoyt then ordered Matta to pay $290,262.00!  Fortunately for Matta and justice, the Fifth Circuit reversed Judge Hoyt.  But Matta had to go through the stress of living under such an excessive fine and the burden of paying the attorney fees to defend against it.  See the Victims link for more stories.

It is time for the judiciary to recognize the mistake it made with Chambers and reverse it.  It is time for the Congress to take its role in the oversight of the Judiciary more seriously and pass legislation to clearly state that such rulings as Chambers will not be tolerated.  And at the very least, no inherent power case on appeal should receive an affirmance without opinion.

Conclusion

When the practice of inherent power sanctions are combined with affirmance without opinion, it allows district courts to ignore the law and the appellate court to sweep the unlawful action under the rug without saying why.  Nibbling away at one fundamental protection of rule of law is bad enough.  Combining two weakened practices can result in outright tyranny.

************************************************

What Can You Do To Help?

Last saved on: 01/09/2005

 Home                                    Send comments about this web page to tomglass@juryduty.org