Proposed court rules

I propose three court rules here. One of these rules is already in effect in California courts.

My first proposed rule is that both sides in a court case be given the option of writing comments of limited length (maybe 1000 words max) which would then be attached to the opinion and become part of it, except that these comments would not become citable precedents in other court cases. The comments could be written by the attorneys, the litigants, or both. This would be like the dissenting and concurring opinions that are written by Supreme Court justices and other judges . Adding litigants comments would have the following advantages:

1. Litigants' and/or their attorneys' responses to a judge's opinion would become part of the official record.

2. Where a judge states no opinion at all or only addresses the winning side's arguments, this would give the losing sides a chance be heard. Of course, courts of review are supposed to read the losing side's briefs, but the losing side's arguments are far more difficult to ignore when they are part of the opinion. The losers could also attack the judge's procedures, e.g., Judge Jones' essentially allowing the ACLU to ghost-write the ID-as-science section of the Kitzmiller v. Dover opinion.

3. It would give litigants an opportunity to respond to personal attacks from the judges. For example, Judge Jones' Kitzmiller decision personally attacked the defendants, saying,
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The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy . . . . this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

Under this new rule, the opinion could include, for example, the following response from defendant William Buckingham:

If the judge called me a liar, then he's a liar. I'm still waiting for a judge or anyone else to show me anywhere in the Constitution where there's a separation of church and state. We didn't lose; we were robbed.
From page 336 of "Monkey Girl" by Edward Humes.

This rule would help eliminate judges' unscrupulous practices of (1) writing no opinion at all and (2) writing an opinion that addresses only one side's arguments.

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My second proposed rule is that instead of releasing final opinions immediately, the courts must first issue tentative opinions and then hold public comment periods before releasing the final versions of the opinions. This would be similar to the public comment periods that are used in the rulemaking procedures of administrative agencies. Having public comments would allow a broad range of opinions to be presented. Such public hearings would be especially beneficial at the Supreme Court level because a Supreme Court decision cannot be appealed. Petitions for rehearing are supposed to serve the function of this proposed comment period, but petitions for rehearing have the following disadvantages: (1) the public cannot participate, and (2) the Supreme Court virtually never grants rehearings; the last I heard, the SC had granted only one rehearing ever (of course, that is more the fault of the SC than of the current rehearing procedure, but public hearings might have the effect of increasing the number of rehearings by the SC).

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My third proposed rule is to allow one-time "peremptory challenges" of (1) randomly selected judges at the start of a case and (2) the original judges when decisions are remanded. As everyone who is familiar with jury selection knows, a "peremptory challenge" in jury selection is a dismissal of a juror by an attorney without any requirement that a reason be given for the dismissal. The federal court rules do not provide for such peremptory challenges of judges, and remanded decisions are returned to the judges who made them in the first place. This is bad, because the judge is likely to try to justify his/her old decision when making a new decision. The rules for California superior courts already allow such peremptory challenges both at the start of the case and for remands. I believe that in remands in the California courts, only the party that lost in the original decision is eligible to ask for a different judge. However, the original decision may be a split decision, i.e., with each side winning something, in which case there would be no "losing" party. So should both sides be eligible to request a new judge where there was a split decision? But what if, say, a party wins big except for losing on a small point; should that party then be eligible to request a new judge while a party that wins everything is not entitled to request a new judge? IMO the only fair thing to do is to allow any party to ask for a new judge.

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One likely argument against these proposals is, "but it has never been done that way." Well, in some of the federal circuits, the same argument could have been made against the recently adopted federal court rule, FRAP 32.1, which requires all federal circuits to allow citation of "federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent,' or the like; and (ii) issued on or after January 1, 2007." FRAP 32.1 was the most controversial proposed federal court rule in American history but was nonetheless adopted. IMO my proposed court rules here are far less controversial than FRAP 32.1.

Another likely argument against these proposals is that they would slow down litigation, since extra time must be allowed for public hearings and litigants' preparation of comments. But litigation is often so slow anyway that adding a little extra delay is not going to make much difference; for example, in Selman v. Cobb County, the appeals court, merely on the grounds of missing evidence, vacated and remanded the district court decision a long sixteen months after that decision was issued.

I think that these three rules would go a long way towards helping to keep judges fair and honest.
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