Petition for Writ of Certiorari — Morgan v. Lake County

’ Supreme Court, U.S.

FILED

981622 APR 8-199

No.

ay

Wr ime Lilian

In The

Supreme Court of the United States

October Term, 1998

| *

TERRY MORGAN

Petitioner,

Vs.

THE COUNTY OF LAKE, AND THE SUPERIOR

COURT IN AND FOR THE COUNTY OF LAKE,

Respondents.

*

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

Law Orrice Or Henry F. TELFEIAN

Henry F. TereiAn

Counsel of Record

1247 Alvarado Road

Berkeley, CA 94705-1545

Tel: (510) 848-0542

Counsel For Petitioner

Terry Morgan

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Kz oe * - ng’

~ (Mia 8 ON a Ce Re NE ee ee ee

err as OP ree inde SEL pi A TELS

QUESTIONS PRESENTED

1. Does the Ninth Circuit’s Rule designating certain

decisions as “non-citable” and “non-precedential” violate

the due process and/or equal protection clauses of the

United States Constitution?

2. Does the Ninth Circuit apply its non-publication /

non-citation Rule in an arbitrary and capricious manner

such that the Rule, as applied, violates the due process

and/or equal protection clauses of the United States Con-

stitution?!

1 All parties to the Ninth Circuit proceedings are listed in

the caption. There are no corporate parties.

il

TABLE OF CONTENTS

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COURS TEs FOES «6c ves rebcnsndecconcenets i

TABLE CF CORIIENE. ooo svsscicstcee ce ii

TABLE OF AISTSNOUIR ica. iv :

I. CITATION TO OPINIONS BELOW ............ 1

i. Se 1

III. CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOAVED. ois 1

IV. STATEMENT OF THE CASE ..............-..- 4 :

V. REASONS FOR GRANTING THE WRIT....... 8

A. UNPUBLISHED, AND OFTENTIMES

UNCITABLE, APPELLATE DECISIONS

ARE NOW THE NORM, RATHER THAN

THE BXCEP EIN 6 60055 ceii as igsdas sels 8

B. SELECTIVE PUBLICATION HAS CREATED

AN UNAUTHORIZED AND UNAP-

PROVED BODY OF SECRET LAW......... 11

C. THE NINTH CIRCUIT VIOLATES THE

CONSTITUTION IN CREATING, BY

LOCAL RULE, A BODY OF SECRET, NON-

CTEADLE LAT ick chen lees ee ewans coke 12

D. THE NINTH CIRCUIT’S RULE ESTABLISH-

ING CRITERIA FOR THE PUBLICATION

OF DECISIONS PROVIDES NO EFFECTIVE

OR MEANINGFUL RESTRAINT ON THE

CIRCUIT’S DISCRETION, AND THERE-

FORE LEADS TO ARBITRARY AND

CAPRICIOUS IMPLEMENTATION. ........ 17

Vi. CONCLUISISY isc ooo cin cies bad oe is ee 21

ill

TABLE OF CONTENTS - Continued

Page

a UN Re al 2g aes EN aks ia Boo ie as es App. 1

NE OG Cs car ick COE EA Eso Ww eee nh hice App. 4

MUNN goa yoga tin hc. ewan cone App. 6

|

iv :

TABLE OF AUTHORITIES :

Page :

CASES

Board of Education v. Rowley, 458 U.S. 176, 102

SOR. BOSG CGR sss SiGe eK ae. Vs 19

County of Los Angeles v. Kling, 474 U.S. 936, 106

S. 3b: SOD AR viiins Vanna seickenicen cee eee Canes 11 i

Glidden Co. v. Zdanok, 370 U.S. 530, 82 S. Ct. 1459 ;

(GEN oy eae ee oy Pas ahi 14 )

'

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Phi- .

lips Corp., 510 U.S. 27, 114 S. Ct. 425 (1993). ...-.. 16

Johnson v. Knable, 1988 WL 119136 (4th Cir. 1988) .... 19

;

Jones v. Superintendent, Virginia State Farm, 465

Fgd 100) (60s Oe, A972 55 ics EASE ees 13

National Classification Committee v. United States,

765 F2d 164 (0.0. Git, F900 osc. civseed sheers vx 20

Re Rules of the United States Court Of Appeals For

the Tenth Circuit, 955 F.2d 36 (10tk Cir. 1992)...... 13

S.G. Borello & Sons v. Dept. of Industrial Relations,

OB Cad Se SAE cs a bcos eek oe ken 7

Tieberg v. Unemployment Insurance Appeals Board, 2

Cah. Se DAS SAE 5 iia Ses VAs ee we eas Sees 6

Toyota Motor Sales U.S.A., Inc. v. Superior Court,

220 Cal. App. 3d 864 (2990) ccc ce iewes. eas a 7

U.S. v. Edge Broadcasting Co., 509 U.S. 418, 113

S. Ct. BOG ASW ss hai rhe Fee se he aes 19

a ee

TABLE ©F AUTHORITIES - Continued

Page

U.S. Bancorp Mortgage Co. v. Bonner Mall Partner-

ship, 513 U.S. 18, 115 S.Ct. 386 (1994)...... 11, 15, 16

Vizcaino v. Microsoft Corporation, 120 F.3d 1007 (9th

Cir. 1997), cert. den., 118 S. Ct. 899 (1997)......... 18

STATUTES AND RULES

SOE SDSL BCR DUNO IG Bio es eS hb eo 10

Sie GSC ER 6 hs da ae eee 10

3rd Circuit Local Rule IOP 5.1-5.8 ..... 00.0 ccccscsss 11

Gime REIS LCE NI IO) oc oo iv oo vb ska boeccuwsk. 11

eet Mom, SANCME URE ain gs occa veh ak one 11

Pest ANNE ROUND RUE OU vc pa riko eericceeteuh: 11

Gi SSOCUS Tretia BOE) oe oe 13

Aa SCY ORE Ne ES oo i ee 10

7th Circuit Local Rule 53(c)(1)(v)........... bei eee es 19

art SRM ES SO SL can kixiccecicverneek 11

oh Ciseuit Locet Rule 36-1... ee ee Ves Se

Sen A Secusl Catal Bee S6e bb bokkk 6k ak ks 2, 8, 18

Sth Circuit Local Rule 36-3 655.66 AG Ss, &,°4;°22

SU Cease LCase a BOG i i sy ia eens 3

SOR Geet LOCA ROME SOS. 6. ieee ceccdenes 11, 14

Rete SROs CORT IP. Sled co odin eos ws obs baci vnc 11

WUSC ERG eS Ee 1

vi

TABLE OF AUTHORITIES — Continued

ALP OLE ee

Page

20 WSL. OTA y iniccin's iss cs ocean peace eees 5

TOA hn MER Cis oceb cbeus ees okays sheer rr reO 1

G2 AIDS. SDs 68 nS 05 os 85645 6 ha 5 |

Calif. Government Code § 995..............seceeeees 5

Call: taper 4 oe © 2002... 5s cscews 3 ccde nea senneeas 5

Ped, &. Age. Proc. We. 47 oes is chicka nca cee eens Ay

ae: SR Ce Pee ee BR haa ve xk cet ee bre ewe 5

Fed. ®. Civ. Proc., Rule 2508) oo issics ion ence cannes 5

U.S. Constitution, Fifth Amendment.................. 4 |

U.S. Constitution, Fourteenth Amendment, § 1....... 4

MISCELLANEOUS

Carrington, et al., Justice on Appeal (1976)........... 12

Douglas, Stare Decisis, 49 Colum. L. Rev. 735

SEDO oii i's ciara cinco sins 05 oe OEY i ee 14

Dragich, Once A Century: Time For A Structural |

Overhaul Of The Federal Courts, 1996 Wis. L. Rev.

BRU 6p eke ke va p a eA ge Sie CAs Es eT ak 21 :

Dragich, Will The Federal Courts Of Appeal Perish If

They Publish? Or Does The Declining Use Of

Opinions To Explain And Justify Judicial Decisions F

Pose A Greater Threat, 44 Am. U. L. Rev. 757

CSO) wi chose cenckcesacwan ib penserns areeeees 9, 14, 18

Gardner, Ninth Circuit's Unpublished Opinions:

Denial of Equal Justice?, 61 A.B.A.J. 1224 (1975).... 12

iii ai,

vii

TABLE OF AUTHORITIES — Continued

Judicial Business of the U.S. Courts, Annual Report

Ae PR eA le pee oa page tne 10

Reynolds & Reichman, An Evaluation of Limited

Publication in the United States Court of Appeals:

The Price of Reform, 48 Chi. L. Rev. 573 (1981)..... 18

Richman & Reynolds, Elitism, Expediency, And The

New Certiorari: Requiem For The Learned Hand

Tradition, 81 Cornell L. Rev. 273 (1996)......... 12, 20

Robel, The Myth of the Disposable Opinion:

Unpublished Opinions and Government Litigants in

the United States Court of Appeals, 87 Mich. L.

As ee NR oo bo cache kbs Kawa sedans cubs wes’ 18

Slavitt, Selling The Integrity Of The System Of Prece-

dent: Selective Publication, Depublication, And

Vacatur, 30 Harv. C.R.-C.L. Rev. 109 (1995)........ 16

ORES.

PN ee.

ee

ne Ta sm mmr

I,

CITATION TO OPINIONS BELOW

The Memorandum decision of the Ninth Circuit

Court of Appeals is printed in Appendix “A”, infra, and is

not officially reported. (App. 1-3.) The Ninth Circuit’s

Order denying Appellant Morgan’s Petition for Rehear-

ing and Suggestion for Rehearing En Banc appears in

Appendix “B”, infra. (App. 4-5.) The Ninth Circuit's rejec-

tion of Morgan’s publication request is set forth in a letter

from Cathy A. Catterson, Clerk of Court, dated February

10, 1999, and appears in Appendix “C”, infra. (App. 6.)

II.

JURISDICTION

The Ninth Circuit’s decision was issued on December

4, 1998. (App. 1.) Morgan’s Petition for Rehearing and

Suggestion for Rehearing En Banc was denied on January

13, 1999. (App. 4.) This petition for certiorari was filed

within ninety days of that date and invokes this Court's

Jurisdiction under 28 U.S.C. § 1257(a).

Ill.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The only federal statute implicated is 28 U.S.C. § 2071

which authorizes the courts of appeal to adopt local rules

of practice. Pursuant to § 2071 and Rule 47 of the Federal

Rules of Appellate Procedure, the Ninth Circuit has

adopted Circuit Rule 36 which provides, inter alia, as

follows:

Fn te ee ee ee

Circuit Rule 36-1: Opinions, Memoranda, Orders;

Publication

Each written disposition of a matter before

this Court shall bear under the number in the

caption the designation OPINION, or MEM-

ORANDUM, or ORDER. A written, reasoned

disposition of a case or motion which is desig-

nated as an opinion under Circuit Rule 36-2 is

an OPINION of the Court. It may be an

authored opinion or a per curiam opinion. A

written, reasoned disposition of a case or

motion which is not intended for publication

under Circuit Rule 36-2 is a MEMORANDUM.

Any other disposition is an ORDER. A mem-

orandum or order shall not identify its author,

nor shall it be designated “Per Curiam.”

All opinions are published; no memoranda

are published; orders are not published except

by order of the court. As used in this rule, the

term PUBLICATION means to make a disposi-

tion available to legal publishing companies to

be reported and cited.

Circuit Rule 36-2: Criteria For Publication

A written, reasoned disposition shall be

designated as an OPINION only if it:

(a) Establishes, alters, modifies or clarifies a

rule of law, or

(b) Calls attention to a rule of law which

appears to have been generally overlooked, or

(c) Criticizes existing law, or

(d) Involves a legal or factual issue of unique

interest or substantial public importance, or

(e) Isa disposition of a case in which there is a

published opinion by a lower court or adminis-

trative agency, unless the panel determines that

publication is unnecessary for clarifying the

panel’s disposition of the case, or

(f) Is a disposition of a case following a rever-

sal or remand by the United States Supreme

Court, or

(g) Is accompanied by a separate concurring or

dissenting expression and the author of such

separate expression requests publication of the

disposition of the Court and the separate

expression.

Circuit Rule 36-3: Other Dispositions

Any disposition that is not an opinion or an

order designated for publication under Circuit

Rule 36-5 shall not be regarded as precedent and

shall not be cited to or by this Court or any

district court of the Ninth Circuit, either in

briefs, oral argument, opinions, memoranda, or

orders, except when relevant under the doc-

trines of law of the case, res judicata, or collat-

eral estoppel.

Circuit Rule 36-4: Request For Publication

Publication of any unpublished disposition may

be requested by letter addressed to the Clerk,

stating concisely the reasons for publication.

Such a request will not be entertained unless

received within 60 days of issuance of this

Court’s disposition. . . . If such a request is

granted, the unpublished disposition will be

redesignated an opinion.

* + +

The Constitutional provisions implicated are the due

process clauses contained in Fifth and Fourteenth

Amendments and the equal protection clause, also con-

tained in the Fourteenth Amendment.

The Fifth Amendment provides inter alia:

“No person shall be . . . deprived of life, liberty, or

property without due process of law... . ”

Section 1 of the Fourteenth’ Amendment provides

inter alia:

ae

. . » No State shall make or enforce any law

which shall abridge the privileges or immunities

of citizens of the United States; nor shall any

State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny any

person within its jurisdiction the equal protec-

tion of the laws.”

IV.

STATEMENT OF THE CASE2

Petitioner Terry Morgan (“Morgan”) worked as a pro

tem court reporter for the Lake County Superior Court in

1993 under the supervision of Lee Poole (“Poole”), the

Chief Court Reporter. On August 23, 1994, Morgan filed a

complaint in the U.S. District Court for the Northern

District of California naming the County of Lake

(“County”), the Superior Court for the County of Lake

(“Superior Court”), and Poole as defendants. Morgan’s

2 This statement is based on the undisputed procedural

record.

Complaint set forth ten causes of action alleging claims of

sexual harassment, retaliation, and various state torts and

invoked the District Court’s jurisdiction under Title VII of

the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.).

While Morgan’s Complaint was pending, Poole and

his wife filed a state complaint naming Morgan as a

defendant, among others. The “Poole Complaint” was

removed to the District Court as a compv'sory counter-

claim under Rule 13(a) of the Federal Rules of Civil

Procedure (“FRCP”) over which the District Court had

supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a).

The Poole Complaint was then “related” to the Morgan

Complaint and consolidated for case management pur-

poses.

Pursuant to California law, Morgan demanded that

the County and the Superior Court defend her and hold

her harmless with respect to the Pooles’ claims. The

County and the Superior Court rejected Morgan’s

demand on the basis that Morgan was an independent

contractor and, therefore, was not entitled to either a

defense or to indemnification.

Morgan retained separate counsel and filed a FRCP

13(g) cross-claim seeking indemnity under California

Government Code § 995 and California Labor Code

§ 2802. Morgan, as a cross-claimant, then moved for sum-

mary judgment seeking to have the District Court deter-

mine that she was an employee. At the same time, the

County and Superior Court moved for summary judg-

ment to have the Court determine that Morgan was an

independent contractor with respect to Morgan’s

employee-based plaintiff claims as well as her cross-claim.

The District Court granted the County and Superior

Court’s motion holding Morgan to be an independent

contractor and dismissed her cross-claim and her

employee-based causes of action. Morgan was allowed to

proceed to trial on her non-employee based claims con-

tained in the complaint that she had originally filed. However,

prior to trial, the District Court entered a separate judg-

ment with respect to the Poole Complaint which judg-

ment Morgan appealed to the Ninth Circuit.

The only issue before the Ninth Circuit was whether

Morgan had established the existence of a factual dispute

regarding her employee status such that the District

Court was precluded from finding, as a matter of law,

that she was an independent contractor. Morgan’s brief

cited twenty-one (21) facts which could lead a fact-finder

to conclude that the County and Superior Court had the

right to control the means and manner by which Morgan

performed her duties — the test for employee status under

California law.*

Nonetheless, on December 4, 1998, the Ninth Circuit

issued a 2 and 1/4 page decision affirming the grant of

3 Morgan’s substantive claims were ultimately tried to a

jury in November 1997 and are now on appeal to the Ninth

Circuit. On appeal, Morgan again raises the issue of whether the

District Court correctly held that she was an independent

contractor. Thus, the only individual who is potentially affected

by the Ninth Circuit’s unpublished decision is Morgan because

Ninth Circuit Rule 36-3 allows citation of an unpublished

decision where the doctrine of res judicata or collateral estoppel

may be relevant.

4 Tieberg v. Unemployment Insurance Appeals Board, 2 Cal. 3d

943, 950 (1970).

ne enter |

summary judgment. (App. 1-3.) The circuit panel desig-

nated its disposition as a Memorandum decision which,

under Circuit Rule 36-3, can neither be published nor

cited as precedent. The Ninth Circuit did not discuss, no

less distinguish, the California cases cited by Morgan,

and the panel’s entire legal analysis is contained in the

following three sentences:

“The fact that Morgan did not receive stan-

dard employment benefits from the County

indicates that she was not intended to receive

the benefits of indemnification. Moreover, the

intent of the County and Morgan was to create

an independent contractor relationship. At the

time of the underlying incident, Morgan and the

County understood the relationship to be that of

an independent contractor.” (App. 2-3.)

Because neither the failure to pay appropriate

employee benefits nor the parties’ subjective belief is

determinative under California law as to whether an

employer retains the requisite “right to control”,5 Morgan

petitioned the Ninth Circuit for rehearing. Alternatively,

Morgan argued that the panel’s designation of its disposi-

tion as an unpublished Memorandum decision constitu-

ted a denial of due process and equal protection and

requested that the Court either publish the decision or

5 S. G. Borello & Sons v. Dept of Industrial Relations, 48 Cal. 3d

341, 349 (1988) (“The labels placed by the parties on their

relationship is not dispositive, and subterfuges are not

countenanced.”); and Toyota Motor Sales U.S.A., Inc. v. Superior

Court, 220 Cal. App. 3d 864, 877 (1990) (“These [failures to make

tax withholdings from an individual’s paycheck] are merely the

legal consequences of an independent contractor status not a

means of proving it.”)

address the constitutionality of its non-publication rule

and practice.

The Ninth Circuit denied the Petition for Rehearing

and the Suggestion for Rehearing En Banc without com-

ment. (App. 4.) Thereafter, pursuant to Circuit Rule 36-4,

Morgan wrote a letter to the Clerk of Court requesting

that the panel designate its Memorandum decision as a

publishable Opinion on the grounds that the Memoran-

dum decision qualified for publication under Circuit Rule

36-2 because (1) the decision altered or modified long-

standing universal precedent and (2) concerned a legal

and factual issue of substantial public importance. In

addition to incorporating the arguments contained in her

Petition for Rehearing, Morgan asserted that the failure to

publish the Memorandum decision constituted an arbi-

trary and capricious application of the Circuit’s Local

Rule and therefore violated the due process and equal

protection clauses of the Constitution. By letter dated

February 10, 1999, the Clerk advised that the panel “did

not wish to publish the decision”. (App. 6.)

V.

REASONS FOR GRANTING THE WRIT

A. UNPUBLISHED, AND OFTENTIMES UNCITABLE,

APPELLATE DECISIONS ARE NOW THE NORM,

RATHER THAN THE EXCEPTION.

Until the early 1960s, almost all federal appellate

decisions were published and constituted citable prece-

dent. However, over the past 40 years, primarily as a

result of a 1964 Judicial Conference suggestion, all of the

courts of appeal have adopted local rules under which

decisions are designated as “not for publication”. See

generally Dragich, Will The Federal Courts Of Appeal Perish

If They Publish? Or Does The Declining Use Of Opinions To

Explain And Justify Judicial Decisions Pose A Greater Threat,

44 Am. U. L. Rev. 757, 760-762 (1995). What started out as

non-controversial procedure, anticipated to be limited to

cases of no legal significance, has grown like Topsy. The

result is a growing body of “secret law” as this practice -

commonly called “selective publication” — has come to

dominate federal appellate decision making.

The most recent statistics are startling. As the follow-

ing table shows, on average almost 75% of all federal

appellate decisions are now designated as “not for pub-

lication” with the Seventh Circuit publishing the most

decisions (slightly more than 50%) and the Fourth Circuit

publishing the fewest (less than 10%).

10

U.S. Court of Appeals — Types of Opinions Or Orders

Filed in Cases Terminated On The Merits During The

Twelve Month Period Ended September 30, 19986

Percent

Unpub- Unpub-

Circuit Total Cases Published lished lished

All 24,828 6,247 18,581 74.6%

De. 633 274 359 56.7%

First 740 370 370 50.0%

Second 1,721 514 1,207 70.1%

Third 1,740 254 1,486 85.4%

Fourth 2,569 242 2,327 90.6%

Fifth 3,552 1,030 2,522 71.0%

Sixth 1,861 399 1,462 78.6%

Seventh 1,415 716 699 49.4%

Eighth 1,856 778 1,078 58.1%

Ninth 4,337 710 3,627 83.6%

Tenth 1,576 436 1,140 72.3%

Eleventh 2,828 524 2,304 81.5%

The Ninth Circuit, as well as the First, Second, and

Seventh Circuits, designate, by local rule, their non-pub-

lished decisions as “non-precedential”, and litigants are

barred from citing these decisions.”? The remaining cir-

cuits, although “disfavoring” citation of their non-pub-

lished decisions, permit it; however, the Fifth, Eighth,

Tenth, and Eleventh Circuits still classify such decisions

© This statistical data is excerpted from Table S-3 of the

Judicial Business of the U.S. Courts, Annual Report of the Director,

1998. Excluded from this excerpt are the 82 oral decisions issued

by the Sixth Circuit which Table S-3 includes as unpublished

decisions.

7 First Circuit Local Rule 36.1; Second Circuit Local Rule

.23; and Seventh Circuit Local Rule 53.

11

as “non-precedential” while the Third, Fourth, and Sixth

Circuits acknowledge, either explicitly or implicitly, the

precedential worth of their unpublished decisions.®

B. SELECTIVE PUBLICATION HAS CREATED AN

UNAUTHORIZED AND UNAPPROVED BODY OF

SECRET LAW.

Selective publication has never been authorized by Con-

gress nor approved by this Court although, as discussed

infra, the related practice of vacatur was severely limited

by this Court in U.S. Bancorp Mortgage Co. v. Bonner Mall

Partnership, 513 U.S. 18, 115 S.Ct. 386 (1994). However,

this growing body of “secret law” has not gone unnoticed

by members of this Court. Justice Stevens, in dissenting

from a summary disposition in County of Los Angeles v.

Kling, 474 U.S. 936, 938, 106 S.Ct. 300, 301 (1985)

described the practice of selective publication as “plainly

wrong” stating:

“As this Court’s summary disposition today

demonstrates, the Court of Appeals would have

been well advised to discuss the record in

greater depth. One reason it failed to do so is

that the members of the panel decided that the

issues presented by the case did not warrant

discussion in a published opinion that could be

‘cited to or by the courts of this circuit, save as

provided by Rule 21(c).’ [citation omitted] That

decision not to publish the opinion or permit it

8 Third Circuit Local Rule IOP 5.1-5.8; Fourth Circuit Local

Rule 36(c); Fifth Circuit Local Rule 47.5; Sixth Circuit Local Rule

24; Eighth Circuit Local Rule 28A; Tenth Circuit Local Rule 36.3;

and Eleventh Circuit Local Rule 36-2.

12

to be cited — like the decision to promulgate a

rule spawning a body of secret law - was

plainly wrong.”

(footnote otmitted.)

Similarly, selective publication has received nearly

unanimous condemnation from the academic community

which has called for its repeal as flawed in concept and

implementation. E.g., Richman & Reynolds, Elitism, Expe-

diency, And The New Certiorari: Requiem For The Learned

Hand Tradition, 81 Cornell L. Rev. 273 (1996).

C. THE NINTH CIRCUIT VIOLATES THE CONSTI-

TUTION IN CREATING, BY LOCAL RULE, A

BODY OF SECRET, NON-CITABLE LAW.

Ninth Circuit Rule 36-1 provides that certain deci-

sions will not be published while accompanying Circuit

Rule 36-3 precludes use of these non-published decisions

as precedent and bars their citation. This rule has led to a

body of “secret law” applicable to the vast majority of

litigants who are unfortunate enough to be consigned to

the unpublished opinion category. Indeed, there is objec-

tive evidence that this body of “secret law” conflicts with

published decisions issued by the circuit or is in conflict

with other, unpublished decisions. See Carrington, et al.,

Justice On Appeal, p. 38 (1976) (discussing conflicts within

Ninth Circuit that are only detectable with aid of

unpublished decisions); and Gardner, Ninth Circuit's

Unpublished Opinions: Denial of Equal Justice?, 61 A.B.A.J.

1224 (1975).

The Ninth Circuit’s rule, and the development of

“secret law”, is in direct conflict with a decision issued by

13

the Fourth Circuit. In Jones v. Superintendent, Virginia State

Farm, 465 F.2d 1091, 1094 (4th Cir. 1972) the Fourth Cir-

cuit held that it could not bar citation of unpublished

decisions, stating: “We concede, of course, that any deci-

sion is by definition precedent, and that we cannot bar the

right to urge upon us what we have previously done.”

(emphasis added.)

Similarly, the Third and Sixth Circuits implicitly

acknowledge the precedential value of their unpublished

decisions by authorizing their citation where “counsel

believes . . . that an unpublished decision has preceden-

tial value in relation to a material issue in a case . ‘

(E.g., Sixth Circuit Local Rule 24(c).) Thus, the Fourth

Circuit, by decision, and the Third and Sixth Circuits, by

rule, stand together and in conflict with their sister circuits

in holding that unpublished decisions constitute citable

precedent.

The Tenth Circuit’s treatment of this issue is instruc-

tive on the perils of selective publication. In Re Rules of

the United States Court Of Appeals For the Tenth Circuit, 955

F.2d 36 (10th Cir. 1992), the Tenth Circuit adopted, with-

out comment, a non-precedent, non-citation rule over

Chief Judge Holloway’s dissent. Chief Judge Holloway,

joined by Judges Barrett and Baldcock, rejected the prop-

osition that a circvit court had the constitutional author-

ity to designate decisions as non-precedential and bar

their citation, stating.

44

. . Each ruling, published or unpub-

lished, involves the facts of a particular case and

the application of law to the case. Therefore, all

rulings of this court are precedents, like it or

not, and we cannot consign any of them to

14

oblivion by merely banning their citation. [citing

Jones v. Superintendent] No matter how insignifi-

cant a prior ruling might appear to us, any

litigant who can point to a prior decision of the

court and demonstrate that he is entitled to

prevail under it should be able to do so as a

matter of essential justice and fundamental fair-

ness. To deny a litigant this right may well have

overtones of constitutional infringement because of

the arbitrariness, irrationality, and unequal treat-

ment of the rule.”

(emphasis added and footnote deleted.) 955 F.2d

at 37.

The Tenth Circuit has evidently conceded, at least in

part, the correctness of Chief Judge Holloway’s dissent

because the circuit’s current local rule allows the citation

of non-published decisions where of “persuasive value”

despite still considering such decisions to be “non-prece-

dential” - a position shared by the Fifth, Eighth, and

Eleventh Circuits. (Tenth Circuit Local Rule 36.3.)

A fundamental requirement of justice is that like

cases be decided alike — this is the basic precept of the

doctrine of stare decisis. As noted by Justice Douglas:

“[T]here will be.no equal justice under law if a negligence

rule is applied in the morning but not in the after-

noon. . . . Stare decisis serves to take the capricious ele-

ment out of law and to give stability to a society.”

Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949);

and see Glidden Co. v. Zdanok, 370 U.S. 530, 543, 82 S.Ct.

1459, 1469 (1944). Consistency is the touchstone of fair

and impartial decision making. See generally Dragich,

supra, 44 Am. U. L. Rev. at 780.

|

i

|

15

The Ninth Circuit’s Rule is a direct affront to stare

decisis. The very fact that unpublished decisions cannot

be cited guarantees that inequality will occur. Selective

publication, by ensuring that the circuit will remain igno-

rant of its own past decisions, breeds inequality. Id. at

786-787. Inconsistencies necessarily arise because present

panels have no knowledge of past panels’ decisions. The

treatment of Morgan’s appeal is just the latest example of

this unequal and inconsistent two-track system of appel-

late justice. If the Ninth Circuit allowed the Morgan deci-

sion to be cited as precedent, it could not hold, as it did,

that Morgan was an independent contractor based on

factors — the manner in which she was paid and her

subjective belief - that the California courts have repeat-

edly held to be irrelevant or of secondary importance in

determining employee status.

As all but the First, Second, Seventh, and Ninth Cir-

cuits recognize, judicial decisions have a “public compo-

nent”, and the courts of appeal simply do not possess the

constitutional authority to hide their decisions through

the expedient mechanism of selective publication. Indeed,

the only difference between the appellate court practice

of selective publication and the now disapproved and

related practice of vacatur is that appellate judges rather

than litigants make the decision as to what decisions

constitute citable precedent.

In U.S. Bancorp Mortgage Co. v. Bonner Mall Partner-

ship, supra, this Court severely limited the practice of

vacatur whereby parties erase precedent by stipulated

agreement. In Bonner Mall, this Court held that vacatur

was only appropriate in “exceptional circumstances” and

never simply because the parties were in agreement.

16

Quoting from Justice Stevens’ dissent in Izumi Seimitsu

Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40,

114 S.Ct. 425, 428 (1993), this Court acknowledged the

existence of a “public interest” in judicial decisions stat-

ing: “[Judicial precedents] are not merely the property of

private litigants and should stand unless a court con-

cludes that the public interest would be served by

vacatur.” U.S. Bancorp Mortgage Co. v. Bonner Mall Partner-

ship, supra, 513 U.S. at 26, 115 S.Ct. at 392.

The creation of non-citable law — whether by litigants

through vacatur or by judges through selective publica-

tion — ignores the public and constitutional interest in the

creation of a coherent and consistent body of law. See

generally Slavitt, Selling The Integrity Of The System Of

Precedent: Selective Publication, Depublication, And Vacatur,

30 Harv. C.R.-C.L. Rev. 109 (1995). If the practice of

vacatur is suspect, selective publication is equally suspect

arid demands review by this Court.

The Fourth Circuit stands alone in expressly acknow-

ledging that it lacks the authority to create secret, non-

citable, non-precedential law. Additionally, the Third,

Fourth, and Sixth Circuits are in conflict with their sister

circuits in treating all of their decisions as citable prece-

dent. Accordingly, this Court should grant certiorari to

resolve this inter-circuit conflict and to decide this critical

issue which has had such an important and far-reaching

effect on appellate litigants and the development of law

in the United States.

17

D. THE NINTH CIRCUIT’S RULE ESTABLISHING

CRITERIA FOR THE PUBLICATION OF DECI-

SIONS PROVIDES NO EFFECTIVE OR MEAN-

INGFUL RESTRAINT ON THE CIRCUIT’S

DISCRETION, AND THEREFORE LEADS TO

ARBITRARY AND CAPRICIOUS IMPLEMENTA-

TION.

Assuming arguendo that the Ninth Circuit has the

right to selectively publish decisions, the Circuit's rules

are being applied in a capricious and arbitrary manner,

and indeed, by their very nature, result in arbitrariness.

Thus, this Court is compelled to consider the validity of

the rules as drafted and applied.

Under Circuit Rule 36-2, the Ninth Circuit is obli-

gated to publish any decision which meets its specified

criteria. Yet, it is clear that the Ninth Circuit often ignores

its own criteria and chooses to designate a decision as

“not for publication” based on other, unspecified criteria.

The case of Petitioner Morgan presents a classic

example. By holding that Morgan was an independent

contractor based on the manner in which Morgan was

paid and based on Morgan’s subjective belief regarding

her employee status, the Ninth Circuit was “establishing,

altering, modifying, or clarifying” an existing rule of

California law such that publication was mandated under

Rule 36-2(a). As noted supra n. 5, the California courts

have rejected these factors as dispositive evidence of

employee status. Clearly, therefore, publication was

required. The fact that the opinion issued provides little

analysis is irrelevant. Nothing in Circuit Rule 36 autho-

rizes the Circuit to reject publication based on the breadth

of the analysis.

18

Alternatively, publication was mandated under Rule

36-2(d) because the decision involves a legal issue of

substantial public interest. The distinction between

“employee” status and “independent contractor” status is

receiving considerable attention and judicial scrutiny in

today’s economy where more and more employers seek

to classify individuals as independent contractors — a fact

recognized by the Ninth Circuit in its own recent en banc

decision on the subject, Vizcaino v. Microsoft Corporation,

120 F.3d 1007 (9th Cir. 1997), cert. den., 118 S.Ct. 899

(1997).

Morgan’s case is not an isolated example. The statis-

tics alone are sufficient to demonstrate that the Ninth

Circuit fails to follow its own specified publication crite-

ria. It is impossible to believe that over 80% of the Ninth

Circuit’s decisions are based on the application of settled

principles — especially where these unpublished decisions

involve a significant number of cases where a district

judge is reversed. See Dragich, supra, 44 Am. U. L. Rev. at

798-799.

One study demonstrated that one in every seven

unpublished federal appellate decisions reversed the

lower court. Reynolds & Reichman, An Evaluation of Lim-

ited Publication in the United States Court of Appeals: The

Price of Reform, 48 Chi. L. Rev. 573, 617-618 n. 53 (1981).

Another study showed that over 50% of Ninth Circuit

reversals of Board of Immigration Appeal decisions were

unpublished. Robel, The Myth of the Disposable Opinion:

Unpublished Opinions and Government Litigants in the

United States Court of Appeals, 87 Mich. L. Rev. 940,

946-947 n. 33 (1989). It is inconceivable that district

judges are so inept or inexperienced that they are failing

19

to apply settled legal principles in nearly 15% of their

cases or that any appellate reversal would be of no legal

significance. Indeed, some circuits, unlike the Ninth Cir-

cuit, explicitly recognize that “reversals” are legally sig-

nificant and, therefore, normally require the publication

of decisions in which a reversal occurs. (E.g., Seventh

Circuit Local Rule 53(c)(1)(v).)

Examples abound where a circuit’s non-publication

decision is nothing less than astonishing and clearly con-

trary to the circuit’s specified publication criteria. For

instance, in Johnson v. Knable, 1988 WL 119136 (4th Cir.

1988) the court held that if prison officials had denied a

homosexual prisoner a job because of his sexual orienta-

tion, they may have violated the prisoner’s equal protec-

tion rights. As the first case to hold that homosexuality

might constitute a “suspect classification”, Johnson was

ground-breaking and, under the Fourth Circuit's criteria,

should have qualified for publication. (Fourth Circuit

Rule 36.4.)

This Court has even had occasion to note its astonish-

ment at a circuit’s nonpublication decision. In U.S. v. Edge

Broadcasting Co., 509 U.S. 418, 113 S.Ct. 2696 (1993) the

Sixth Circuit, in an unpublished decision, held that a

federal statute prohibiting the broadcasting of lottery

advertisements was unconstitutional. In reversing, this

Court observed: “We deem it remarkable and unusual

that although the Court of Appeal affirmed a judgment

that an Act of Congress was unconstitutional, as applied,

the court found it appropriate to announce its judgment

in.an unpublished per curiam opinion.” 509 U.S. at 425

n. 3. See also Board of Education v. Rowley, 458 U.S. 176, 102

20

S.Ct. 3034 (1982) (reversing in an extensive opinion an

uncitable decision of the Second Circuit).

Quite frankly, this Court’s stated belief that such

non-publication practices are “unusual” is unwarranted.

In National Classification Committee v. United States, 765

F.2d 164 (D.C. Cir. 1985), Judge Wald wrote a “separate

statement” to set forth her disagreement with the panel’s

prior non-publication order and criticized the practice of

selective publication as “overused”. Judge Wald noted

that a committee impaneled to review the unpublished

decisions issued by the D.C. Circuit had concluded that

“40 percent of the decisions arguably should have been

published under the court’s governing criteria.” Id. at 173

(emphasis added).

The end result is that the courts of appeals have

ceased to function in their historic role as “error correc-

tors” and have transformed themselves into certiorari

courts, or in the words of Dean Carrington, into “junior

Supreme Courts.” Richman & Reynolds, supra, 81 Cornell

L. Rev. at 293. The circuit courts have accomplished this

transformation by implementing rules which they them-

selves do not follow — as at least one D.C. Circuit judge

has been forthright enough to admit. As a result, it is

clearly impossible to predict what decisions will or will

not be published because the publication rules are being

applied in an arbitrary and capricious manner.

As implemented by the Ninth Circuit, selective pub-

lication is essentially a lawless exercise without any

restraint on the circuit’s discretion to designate a decision

as “not for publication”. The consequence is that the

appeals of individuals, such as Morgan, receive little or

21

no real consideration because the circuit has the unfet-

tered discretion to bury any decision in the trash heap of

“not for publication”. The solution for the federal appel-

late case load lies in structural change; not lawlessness.

See generally Dragich, Once A Century: Time For A Struc-

tural Overhaul Of The Federal Courts, 1996 Wis. L. Rev. 11.

Accordingly, it is incumbent on this Court to grant cer-

tiorari to ensure that the circuits act in a lawful manner in

making such an important decision.

VI.

CONCLUSION

WHEREFORE, for the aforesaid reasons, this petition

for a writ of certiorari should be granted.

Respectfully submitted

Henry F. TELFeIAN

Law Orrice of Henry F. TELFEIAN

1247 Alvarado Road

Berkeley, CA 94705-1545

Tel: 510 848-0542

Attorney For Petitioner

Terry Morgan

App. 1

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEE P. POOLE; No. 97-16575

YOLANDA A. POOLE, DC. No.

Plaintiffs-Appellees, CV-95-05314-SI

v. MEMORANDUM!

CARRIE TRITCHLER;

KATHY WEHINGER,

Defendants-Appellees,

(Filed Dec. 4, 1998)

V.

LAKE COUNTY; LAKE

SUPERIOR COURT,

Defendants-cross-

defendants-Appellees,

v.

TERRY MORGAN,

Defendant-cross-

claimant-Appellant.

i ed

Appeal from the United States District Court

for the Northern District of California

Susan Yvonne Illston, District Judge, Presiding

Argued and Submitted October 8, 1998

San Francisco, California

1 This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as

provided by Ninth Circuit Rule 36-3.

App. 2

Before: HUG, Chief Judge, FLETCHER and TROTT, Cir-

cuit Judges.

Terry Morgan appeals the district court’s grant of

summary judgment in favor of County of Lake (County)

and the district court’s denial of her Motion for Leave to

File a Motion for Reconsideration. We have jurisdiction

pursuant to 28 U.S.C. § 1291. The parties are familiar with

the factual and procedural history of the case, therefore,

we will not recount it here.

‘i

Morgan contends that the district court misconstrued

the applicable substantive law in determining whether

she was an employee for the purposes of indemnification

under California Government Code section 995 (the Torts

Claims Act) and the California Labor Code section 2802.

We review a grant of summary judgment de novo, Forsyth

v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997), and we

affirm.

Based upon the right to control test and the factors

enumerated in the Second Restatement of Agency, we

conclude that Morgan was not an employee because she

retained the right to control the means and manner of

accomplishing her assigned work. S.G. Borello & Sons, Inc.

v. Dept. of Indus. Relations, 48 Cal. 3d 341, 350, 769 P.2d

399, 404, 256 Cal. Rptr. 543, 548 (1989); Tieberg v. Unem-

ployment Ins. Appeals Bd., 2 Cal. 3d 943, 949, 471 P.2d 975,

979, 88 Cal. Rptr. 175, 179 (1970). The fact that Morgan

did not receive standard employment benefits from the

County indicates that she was not intended to receive the

benefit of indemnification. Moreover, the intent of the

ae —e

App. 3

County and Morgan was to create an independent con-

tractor relationship. At the time of the underlying inci-

dent, Morgan and the County understood the

relationship to be that of an independent contractor.

Accordingly, we find that the district court correctly

applied the substantive law in concluding that Morgan

was an independent contractor.

Il.

Morgan also contends that the district court erred in

denying her motion for Leave to File a Motion for Recon-

sideration on the basis that two internal County mem-

oranda were not discoverable until the district court

ruled, subsequent to the summary judgment hearing, that

the documents were not subject to the raised privileges.

We review the district court’s denial of leave to file a

motion for reconsideration for an abuse of discretion,

School Dist. 1] v. ACandS, Inc., 5 F.3d 1255, 1261 (9th Cir.

1993), and we affirm. We agree with the district court that

the documents contained no factual or legal basis that

would likely change the outcome of the case. Accord-

ingly, we find that the district court did not abuse its

discretion in denying Morgan’s Motion for Leave to File a

Motion for Reconsideration.

AFFIRMED.

App. 4

APPENDIX B

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEE P. POOLE; No. 97-16575

YOLANDA A. POOLE, D.C. No.

Plaintiffs-Appellees, CV-95-05314-SI

v. ORDER

CARRIE TRITCHLER;

KATHY WEHINGER,

Defendants-Appellees,

(Filed Jan. 13, 1999)

V.

LAKE COUNTY; LAKE

SUPERIOR COURT,

Defendants-cross-

defendants-Appellees,

Vv.

TERRY MORGAN,

Defendant-cross-

claimant-Appellant.

le ee

Before: HUG, Chief Judge, FLETCHER and TROTT, Cir-

cuit Judges.

The panel has voted to deny appellant’s petition for

rehearing and to reject the suggestion for rehearing en

banc.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a

App. 5

vote on whether to rehear the matter en banc. Fed. R.

App. P. 35.

The petition for rehearing is denied and the sugges-

tion for rehearing en banc is rejected.

App. 6

APPENDIX C

Office of the Clerk

United States Court of Appeals for the Ninth Circuit

P.O. Box 193939

San Francisco, CA 94119-3939

February 10, 1999

RE: Title: Poole v. Morgan

Appellate Number: 97-16575

Dear Counsel:

In response to your letter requesting publication of

the memorandum decision in the above referenced case,

the panel has asked me to advise you that they do not

wish to publish the decision.

Very truly yours,

Cathy A. Catterson

Clerk of Court

By: /s/ Craig Westbrooke,

Craig Westbrooke

Deputy Clerk

cc: Brien J. Farrell

Nicolas L. Thakar

Michael D. Senneff

Marshall E. Bluestone

Steven C. Mitchell

Julie Collons Nelson

Nanette Joslyn

Henry F. Telfeian

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