# Petition for Writ of Certiorari — Morgan v. Lake County > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1567%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1159 ## Text ’ 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 Does the Ninth Circuit’s Rule designating certain decisions as “non-citable” and “non-precedential” violate the due process and/or equal protection clauses of the United States Constitution? 2.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 ~~ DL og om ’ gage Em OE NM ee 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 STATEMENT OF THE CASE ..............-..- 4 : V. REASONS FOR GRANTING THE WRIT....... 8 A. UNPUBLISHED, AND OFTENTIMES UNCITABLE, APPELLATE DECISIONS ARE NOW THE NORM, RATHER THAN THE BXCEP EIN 6 60055 ceii as igsdas sels 8 B. SELECTIVE PUBLICATION HAS CREATED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 =. ee ee ee ee ee ee ee oe a eet ee ee eae ee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1567%3A1. Public record. Not legal advice.