Most of us have experienced having our summer and fall afternoons interrupted by the loud continuous thumping and bumping of what is now labeled “rap music.” And whose senses (especially those who have young and impressionable youths helping themselves at the feeding table) have not been assaulted by the auditory and visual images on a certain cable channel, MTV?

 The subject matter in these videos ranges from “raping and brutalizing women” to the promotion of “killing cops.” While there is no disagreement that there have been some occasions where members of law enforcement should have received punishment for their actions, ambushes are not appropriate.

 Let’s pretend that you become entangled in this severely dysfunctional legal system. You may be a defendant or plaintiff. It matters not which: Your chance for genuine justice is highly unlikely. You are more apt to receive true justice in Las Vegas than you are in the present legal system. In addition, a trip to Las Vegas will cost a whole lot less if you lose.

 Ah, what does “rap music” and MTV videos that promote “raping and brutalizing women” and “cop killings” have to do with the judiciary? Before proceeding, some background.

It was in the early seventies, while Richard M. (“I am not a crook”) Nixon was president, that the Appellate courts suddenly became overwhelmed with an increased caseload. This overload was largely due to the insane war on drug - err - aka the War on the Bill of Rights. In order to relieve this problem of an overloaded court system, a three - pronged plan was devised to eliminate it.

 One part of this strategy was to temporarily employ - for one to two years - 1st and 2nd year law students. In the 11th Circuit Court of Appeals, some of the judges do not even require these law students to have taken - much less pass - a bar exam before they are hired.

 A longer-lasting solution was to hire a permanent staff of attorneys to screen, sift and categorize cases into important ones that would receive a hearing before a three-judge panel. The remainder – mainly social security, pro se, black lung and sentencing guideline cases – were to receive, according to the Eleventh Circuit Court of Appeals internal operating procedures -- a bench memorandum prepared by the Staff Attorneys for judicial “review.” According to one survey, memoranda of this type were adopted by the court unchanged and without a second thought ninety-five percent of the time. In such instances, not a single piece of evidence or a brief from either side was ever seen by a judge. An opinion was issued and the rights of all Americans were adversely affected with NO real judicial accountability. This practice was described by one Judge Robert Thompson of the California Court of Appeals for the Second Appellate District as a “no judge opinion.”

 The solution eventually found for judges who had qualms about approving one of these many judicial opinions written and issued by a bureaucrat or college kid was described in a 1999 article in the Journal of Appellate Practice and Process. In it, Judge Richard Arnold, a judge on the 8th Circuit Court of Appeals, said it is tempting for those judges who want to rule differently from prior cases, but who can’t come up with a justification, to resolve the dilemma “…by deciding the case in an ‘unpublished opinion’ and sweeping the difficulties under the rug.” Tony Mauro, Judge Ignites Storm Over Unpublished Opinions, Fulton County Daily Report - Tuesday, September 5, 2000, Volume 111, No. 173, pages 7, 8.

 Difficulties such as having your right to keep and bear arms abrogated or your property seized and confiscated by the IRS. Perhaps the denial of your spouse’s claim to your social security payments after you are dead and gone.

 “Fully 78 percent of the case dispositions by federal appeals courts last year were by unpublished opinions, according to the Administrative Office of the U.S. Courts - an amazing number given that the practice only began in 1964 as a cost-cutting and working-saving measure.” Id., page 8.

 “Critics say that unpublished opinions are often the product of barely reviewed assessments by law clerks or circuit staff attorneys. Law clerks say that dissenting judges will sometimes agree to withdraw their dissents if the majority marks the opinion “unpublished.” (Emphasis added), Id., p. 8.

 So what does all this have to do with MTV and the judiciary? Hang with it, the relationship will soon become obvious.

 The third solution to the problem of overcrowded court dockets is the legal system’s use of a practice common in medicine. Both use college students to perform different functions within their respective domains. Medicine calls their college students “interns.” It is a term used to describe a medical student getting his or her first shot at cutting on something more exciting than a pickled frog. In teaching hospitals, medical students even operate on patients - under the full supervision of an experienced, licensed doctor.

 In some perverse desire to be different, the legal system calls ITS college students “externs.” That is not, however, the only area of difference.

 “These students, known as ‘externs,’ either work part-time for their judges while carrying a reduced load of law school classes, or are given academic leave from law school for one term to work full-time. In either case, the student is unpaid but receives academic credit from his or her law school, and thus continues normal progress toward a law degree. Because no public resources are involved, the use of externs has generally been left to the initiative of individual judges and law schools. The law schools themselves have played an active role in the growth of extern programs.” (Emphasis added). Oakley and Thompson, Law Clerks in Judges’ Eyes: Tradition and Innovation in the Use of Legal Staff by American Judges, 67 California Law Review 1286, 1293 (1979). (This “Thompson” is the same Associate Justice Robert Thompson, who coined the phrase “no judge opinion”).

 How comforting to know that if your home has been seized by the tax man, that some “wet behind the ears” child will be deciding where your next living quarters will be or who will have custody of your child. Some college kid devoid of most life experiences, who has not faced monthly bills or the extreme tax burden most Americans face. The major decision for most of these “externs” is which “Rap” CD am I going to purchase or where the next beer party will be. While we delude ourselves that these “college kids” are merely looking up citations or shelving the judge’s law books, the reality is that they are changing lives. These “children”, who have not yet completed their studies in law school or in some cases have not taken -- much less passed -- a bar exam are playing God. How does this differ from practicing law without a license?

 A quote from a publication from one of these institutions of higher learning should bring the matter into focus: “What are these able, intelligent, mostly young people doing? Surely not merely running citations in Shepard’s and shelving the judge’s law books. They are, in many situations, ‘para judges.’ In some instances, it is to be feared, they are indeed invisible judges, for there are appellate judges whose literary style appears to change annually.” (Emphasis added). Rubin, Views From the Lower Court, 23 UCLA L. Rev. 448, 456 (1976). Alvin Rubin was a United States District Court Judge in the Eastern District of Louisiana.

 Imagine, if you will, waiting for a decision from the court as it is being prepared by some dumbed - down twenty-year old hidden by the doors of the judge’s sanctuary. And imagine that he is listening through his headphones to the rhythmic of “thump, thump thump” of the latest Rap “artist” while writing that decision – which the judge may never see! Imagine further that the decision he or she is writing a binding opinion affirming a lower court ruling allowing the seizure of your property! No accountability, and apparently little or no supervision. All done to cut costs and lighten work loads in the court system - with the added bonus that these college students, these children - may receive academic credit.

 The next time you are dragged into a court, take comfort in those images. Perhaps you can formulate a few questions about that at your next lawyer consultation.

 Until the rest of us complain, why should they?

 © FTG Publishing, 2000. Larry Bolin

 Feel free to distribute far and wide, just give credit to the author.

 ########### Social Security Cases in the Courts of Appeal Receive the Short End of Stick

 If you or one of your relatives or friends have ever had to appeal a Social Security Administrative ruling or any other case involving Social Security to a Federal Appellate Court, and received an adverse ruling, you may still be probably scratching your collective heads as to what happened. You may have felt like you received a raw deal. There maybe an answer as to why you received a ruling that, in your opinion, did not make sense.

 In remarks at a Public Hearing before the Commission on Structural Alternatives for the Federal Courts of Appeals, Atlanta, Georgia, March 23, 1998 Joseph W. Hatchett, former chief Judge of the Eleventh Circuit Court of Appeals, made the following statements as to the methodology of managing the case load before Circuit Courts:

 "What have we done to try and manage this case load? Staff attorneys, as I said, authorized strength 47, there are 43 on board today. They are doing summaries of cases in some "special" categories, Social Security cases, black lung cases, pro se cases, [inaudible] guidelines cases." (Emphasis added.) From Transcript of Commission on Structural Alternatives for the Federal Courts of Appeals, Atlanta, Georgia, Public Hearing, March 23, 1998, produced from tapes provided by the Administrative Office of the United States Court, page 10, line 17 through line 22.

 In an editorial that appeared in the March 26, 1999 edition of the Des Moines Register entitled, Perfunctory Justice Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, the paper discussed the remarks of one Richard Arnold of Arkansas, a judge who sits on the U.S. Court of Appeals for the 8th Circuit, made at the Drake University Law School.

 Arnold was asked about a story in The New York Times reporting that because of crushing workloads, some federal appeals courts are resorting to perfunctory one-word rulings - "Affirmed" or "Denied" - with no opinion giving the court's reasoning.

 In the editorial, Arnold was quoted, as saying this practice is an "abomination." Arnold further told of participating in a court session where more than 50 cases were decided in two hours. "We heard many, many cases with no opinions or unpublished opinions," Arnold said. "I felt dirty. It was a . . . betrayal of the judicial ethos. It makes me feel terrible."

 The editorial further went on to state, "Critics say these shortcuts are leading to a two-level federal court system: One for complex issues that require written opinions, such as civil-rights cases, and one for others, such as Social Security benefit disputes . . . that may be handled perfunctorily. Id. " (Emphasis added.) Portions of above Copyright 1997-2000, Northern Light Technology, Inc.

For those who want to know what the word perfunctorily means, the definitions of perfunctory are quite revealing. From Webster’s Dictionary, “perfunctory” is defined as “characterized as by routine or superficiality: MECHANICAL; lacking in interest or enthusiasm: APATHETIC.” Anyone, who is dependent upon social security benefits, would think that having their appeal handled by the Appellate Court system in such a slip-shod fashion would set off alarm bells throughout the Congress. After all social security is the third rail of politics - wink-wink; nudge - nudge.

 A person, who filed an appeal from a Social Security administrative hearing, was more than likely under the impression that he or she paid money to have a judge review the case, research the case and then rule upon the case. Undoubtedly this poor soul, probably paid an attorney an endless sum of money to prepare the appeal brief only to have their case handled in manner as described by Judge Arnold. Maybe it is time to write your Congressman or your Senators and ask them why staff attorneys are performing these duties instead of judges? Your congressman may not know about this practice. If he or she was once a lawyer or still is, he or she probably does. Since it is now Election season, these folks will be in their district touting all the good things they have done for us, maybe also time to quiz them on this subject matter face-to-face.

 The House of Representatives appropriates the money for these staff attorneys and law clerks and protestations to the contrary notwithstanding Congress does have control over the Judicial branch of government by appropriating the money to fund these positions. It also might be interesting to ask George Bush and Al Gore or any other of the three or more lesser known candidates as to why people, who are trying to obtain their Social Security benefits, are being denied their right to a fair hearing in the Courts of Appeals.

 Larry Bolin

 #################

 The Des Moines Register

 March 26, 1999

 Vol. 327, Issue 30608; Main News Section

 Perfunctory justice

Overloaded federal judges increasingly are resorting to one-word rulings.

 Richard Arnold of Arkansas, a judge who sits on the U.S. Court of Appeals for the 8th Circuit, is a product of the Old South school of courtly manners. He is equally comfortable holding forth on an early 19th-century British case, the U.S. Constitution or a richly embellished anecdote. But he is less genteel when talking about what is happening to the federal courts. Speaking at the Drake University Law School last week, Arnold was asked about a story in The New York Times reporting that because of crushing workloads, some federal appeals courts are resorting to perfunctory one-word rulings -"Affirmed" or "Denied" -with no written opinion giving the court's reasoning.

 The practice is an "abomination," Arnold said. He told of participating recently in a court session where more than 50 cases were decided in two hours. "We heard many, many cases with no opinions or unpublished opinions," Arnold said. "I felt dirty. It was a . . . betrayal of the judicial ethos. It makes me feel terrible."

Federal appeals courts do not always publish opinions in matters of settled law, but because caseloads are growing faster than court resources, the number of cases decided without formal opinions has grown rapidly in recent years. Now, fewer than half of federal appeals are argued before judges, and three-quarters of rulings are not published.

Some defendants say they are shortchanged by opinionless rulings because they have no basis for appeal if they don't know how the court reached its judgment. Critics say these shortcuts are leading to a two-level federal court system: One for complex issues that require written opinions, such as civil-rights cases, and one for others, such as Social Security benefits disputes or prisoner appeals that may be handled perfunctorily.

While the courts' workload grows, Congress and the administration have not provided the additional resources judges say they need. There is an Iowa angle to this story. Iowa Senator Charles Grassley is chairman of a Senate judiciary subcommittee that oversees federal court administration.

Grassley's subcommittee recently issued a report on the federal courts' bench strength, which concluded that not only are there sufficient numbers of judges overall but that for every judgeship created one should be eliminated.

 Actually, many judges agree with those who caution against enlarging the size of the federal judiciary. But they also note the hypocrisy of politicians who add to the courts' workload by constantly expanding the federal criminal code. Grassley concedes the federal courts have more business; he just thinks the judges should work harder.

It's easy to see who will win a debate between the federal judges and politicians practiced in the art of being tough on crime and needling the courts. The trouble is, with a diminished federal judiciary, it is the average American citizen who is the ultimate loser.

Des Moines Register editorial

(Copyright 1999)

 ©1999 UMI Company; All Rights Reserved. Only fair use, as provided by the United States copyright law, is permitted. UMI Company makes no warranty regarding the accuracy, completeness or timelines of the Publications or the records they contain, or any warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose, and shall not be liable for damages of any kind or lost profits or other claims related to them or their use.

 Portions of above Copyright © 1997-2000, Northern Light Technology Inc. All rights reserved.

 Judge Ignites Storm Over Unpublished Opinions

 Tony Mauro

 America Lawyer Media

 Far more often than not these days, federal appeals court decisions are issued with a warning at the top: “Not to be published.”

 By marking opinions as unpublished, overburdened appeal judges can dispose of stacks of cases without explaining their rationale, and without checking to see if their decisions contradict circuit precedent.

 The reason: With rare exceptions, the federal circuits discourage lawyers from citing unpublished opinions, and give them no presidential value.

 However, that tradition may have started to unravel late last month because of a little-noticed ruling from the eighth U.S. Circuit Court of Appeals.

 For the first time, a federal appeals panel said that stripping unpublished opinions of precedential value was unconstitutional.

 Writing in a routine tax case, Judge Richard Arnold reasoned that by allowing judges to ignore precedent, the rule grants them a remarkably arbitrary power - a power that the framers of the Constitution did not intend to give them in Article III. Arnold stayed away from trickier due process or equal protection arguments, instead basing his view on the essence of the judicial function in the federal system.

 “The duty of courts to follow their prior decisions was understood [by the framers] to derive from the nature of the judicial power itself and to separate it from a dangerous union with the legislative power,” Arnold explained in the August 22 decision in Anastasoff v. United States.

 News Spreads Fast

 It was a solitary ruling from a single appellate panel, but the decision was the talk of the appellate world within hours. The next day, it dominated hallway discussions at the 9th Circuit Judicial Conference in Idaho.

 Academics traded around the decisions - and reactions to it - in online chats for days. And lawyers who often curse unpublished opinions were jubilant.

 “This is a brilliant and very important opinion that captures the crux of what is wrong with unpublished opinions,” says Arthur Bryant, executive director of Trial Lawyers for Public Justice, a longtime critic of the practice. “It will have huge impact nationwide.”

 Judges who routinely dispose of cases through unpublished opinions - or assign clerks or staff attorneys to do so - will think twice about giving the cases such short shrift, many predicted.

 “Some unpublished opinions right now are pretty dreadful. They lack reasoning,” says Professor William Reynolds of the University of Maryland School of Law, who has written on the subject. “Judges may be more careful if they know they might have precedential effect.”

 The Arnold opinion may have an impact on lawyers as well, Reynolds adds. “It would be a foolhardy lawyer in the 8th Circuit - or other circuits - who did not go through the unpublished opinions from now on.”

 In many circuits, lawyers frequently review and cite unpublished opinions, even though the rules discourage their use. But because unpublished opinions are not binding, lawyers don’t cite them consistently - and some judges get angry when they do.

 En Banc Reviews Expected

 For the 8th Circuit itself, the decision could mean a wave en banc reviews of previously hidden intracircuit conflicts, says Eugene Volokh of University of California at Los Angeles School of Law. “Before, there might have been two published opinion to cite on one side of a case, but now there may be three unpublished ones on the other side that you didn’t have to deal with before.”

 Even though Arnold’s ruling is unique and does not reflect a split between circuits, it was easy for many analysts last week to see the issue racing to the Supreme Court. Juan Keller, the St. Louis lawyer for taxpayer Faye Anastasoff, whose case triggered the Arnold ruling says he will seek en banc review.

 Harvard University Law School Professor Laurence Tribe says, “En banc treatment or a grant of cert [by the Supreme Court] seem fairly likely, especially in light of the enormous practical consequences of what Arnold has done.”

 ‘Certainly a Surprise’

 Keller, a partner at Bryan Cave, says the Arnold ruling “certainly was a surprise,” given that the constitutionality of the rule on unpublished opinions was “not raised in either brief by either side.”

 But Arnold signaled that the issue was on his mind during oral arguments. Gregory Hewett, a colleague of Keller’s who is no longer with the firm, was arguing the seemingly routine case in the 8th Circuit courtroom in St. Louis.

 At issue in the case was whether Anastasoff, a retired teacher, should be denied a refund of her $6,000 tax overpayment because her claim arrived a day late at the Internal Revenue Service.

 As Hewatt droned on about the relevant IRS regulations, Judge Arnold leaned forward and asked, “What do you do with our opinion in the Christie case?”

 Arnold was referring to an unpublished 1992 8th Circuit decision that favored the IRS on the issue - a case the Justice Department had cited in its brief.

 Hewatt replied matter-of-factly that, because it was unpublished, the Christie decision was “not binding on this court.” Arnold pounced, “This is where I disagree with you. I think it is unconstitutional for a court to say we decided a case a certain way yesterday, but we don’t like it anymore and we’re ignoring it. It flies in the face of the whole notion of a court.”

 The argument moved on, but the issue clearly stuck in Judge Arnold’s craw. On Aug. 22, when the eighth Circuit panel issued its ruling in the Anastasoff case, Arnold’s rumination became the rule of the case. Because of the unpublished Christie precedent that favored the IRS position, Anastasia lost.

 Part of the instant weight given to the decision stems from the credibility of its author. Once on President Bill Clifton’s short list for a Supreme Court appointment, Arnold won the prestigious Devout Award for Distinguished Service to Justice last year and is well-known throughout the federal bench.

 Little-Discussed Tradition

 But the decision also had an “emperor has no clothes” appeal, shedding new and iconoclastic light on a little-discussed tradition of federal court procedure.

 Fully 78 percent of the case dispositions by federal appeals courts last year were by unpublished opinions, according to the Administrative Office of the U.S. Courts - an amazing number given that the practice only began in 1964 as a cost-cutting and working-saving measure. All but one circuit, the 3rd, discourage lawyers from citing them to varying degrees, and all circuits except the 5th, which recognizes them under certain circumstances, give them no value as precedent.

 Critics say that unpublished opinions are often the product of barely reviewed assessments by law clerks or circuit staff attorneys. Law clerks say that dissenting judges will sometimes agree to withdraw their dissents if the majority marks the opinion “unpublished.”

 In a 1999 article in the Journal of Appellate Practice and Process that foreshadowed his objections in Anastasoff, Arnold said it is tempting for judges who want to rule differently from prior cases, but can’t come up with a justification to resolve the dilemma “by deciding the case in an unpublished opinion and sweeping the difficulties under the rug.”

 Bryant of the trial lawyers groups says the practice of unpublished opinions creates a “two tiered body of law” where judges are unaccountable and “there is the rampant possibility of abuse.”

 The Precedent Effect

 In the ruling, Arnold takes pains to say there may be legitimate reasons for continuing the practice. “Courts may decide, for one reason or another, that some of there are not important enough to take up pages in a printed report,” he says, “The opinion presented here is not whether opinions ought to be published but whether they ought to have precedential effect, whether published or not."

 If a precedent needs to be changed, so be it, he says.

 “When this occurs, however, there is a burden of justification,” Arnold wrote. “The precedent from which we are departing should be stated, and our reasons for rejecting it should be made convincingly clear. In this way, the law grows and changes, but it does so incrementally, in response to the dictates of reason, and not because judges have simply changed their minds.”