March 2001

Letters

I want to let you know that Kimberly Goetz's article relating her experiences and impressions of serving on the "D-Board" in the December issue of Bar News gave a most accurate description of service on the D-Board. Everything she related, I would "Amen." Further, the members of the board and the Bar staff during her term achieved a milestone which will be long remembered for their dedication to achieving control of the grievance backlog.

Her outstanding article clearly brought the D-Board activities to the attention of the Bar membership and the public. Her effort is greatly appreciated by another former member of the D-Board who lacks the ability to describe the assignment as vividly.

After an opponent threatened to cite in federal court an unpublished 9th Circuit decision which he claimed was controlling, and to justify violation of 9th Circuit rules by constitutional arguments of the type elaborated by Mr. Berg (Bar News, December 2000, p. 28), I was relieved to find the "watershed" 8th Circuit precedent on which many of these arguments would have been based has been vacated.

Anastasoff v. U.S., 223 F.3d 898 (8 Cir. 2000)[Anastasoff 1], affirmed an IRS denial of tax refund due to untimely application, based on an unreported in-circuit decision interpreting the relevant tax regulations in favor of the government. Although there was an 8th Circuit rule which prohibited use of unreported decisions as precedent, the court held that rule unconstitutional in adhering to the unreported decision as precedent, and in so doing brought into play another rule under which the court's power to overrule controlling in-circuit precedent was limited to en banc decisions. Therefore, even though there was a recent out-of-circuit precedent, Wiesbart, under which the refund application would have been timely, the three-judge panel deemed itself bound by the unpublished decision and precluded from examining the merits of the rule in Wiesbart.

Subsequent to Anastasoff 1, the IRS decided as a matter of policy to follow the Wiesbart rule regarding refund applications, and paid the full refund plus interest to Ms. Anastasoff. By en banc decision in Anastasoff v. U.S.,___F.3d___(8 Cir. 2000) [Anastasoff 2], filed 12/18/00, the court vacated Anastasoff 1 as moot, and remanded solely for a decision on attorneys' fees.

Wanting no mistake about the effect of Anastasoff 2 on Anastasoff 1's holding concerning unpublished opinions, the court announced: "The constitutionality of [the court's rule] which says that unpublished opinions have no precedential effect remains an open question in this Circuit." Anastasoff 2 at p 4 of opinion.

It was Anastasoff 1 which was discussed in the Berg article, and cited, but not followed, Dwyer v. Kislak, __Wn. App.__ (Lexis 2408, 2000 WL 1737833) (mentioned in a January 2001 letter, p. 7). Anastasoff 1 was also cited in Weyerhaeuser Co. v. Commercial Union Insurance Co., __ Wn.2d __(12/20/2000), in support of our court's citation of unpublished 9th Circuit decisions which contained Washington law-based analyses of a similar insurance clause to that before our court. Obviously, the citation in Weyerhaeuser was incorrect, since Anastasoff 1 had been vacated two days earlier.

In regard to the letter about Dwyer v. Kislak and a $500 sanction for citing an unpublished decision, I don't think Division I would be ignoring RAP 10.4(h) and RCW 2.06.040 if it had not imposed the $500 sanction on counsel for Kislak. I read nothing in either the statute or rule mandating such a sanction. It appears from the Bar letter (Bar News, January 2001, p. 7) that counsel for Kislak did not try to sneak in the unpublished case and unethically disguise it as published authority. Rather, counsel bravely brought the 8th Circuit decision to the attention of the Division I court; showed that the 8th Circuit found that a court rule that said "unpublished opinions are not precedent" was unconstitutional because it expanded the courts' authority beyond the bounds of Article III; and then proceeded to extrapolate reasoning and argument from an unpublished opinion that all knew was unpublished. Note that the 8th Circuit decision has since been vacated by the en banc 8th Circuit due to mootness because the IRS decided to issue a full refund to the taxpayer, plus interest, and announced that it would abandon its opposition to similar claims.

The 8th Circuit stated: "The controversy over the status of unpublished opinions is, to be sure, of great interest and importance, but this sort of factor will not save a case from becoming moot. We sit to decide cases, not issues, and whether unpublished opinions have precedential effect no longer has any relevance for the decision of this case."

Sanctioning the attorney for "citing and discussing" an unpublished decision that all knew was unpublished is just another "brick in the wall" for chilling an attorney's participation in the judicial process of presenting complete arguments that others may have also considered. After all, unpublished opinions may not be proper authority on appeal, but couldn't the arguments therein have some persuasive value, especially since the attorneys spent months briefing and the appellate court spent months deciding the unpublished case? Would it not be considered plagiaristic to learn of an argument from an unpublished opinion, but cast it as our own because of the fear of being sanctioned for citing the case? Why is it okay to cite magazine articles and journals in our briefs to support our arguments, but not okay to cite supporting unpublished opinions — opinions that all participants know are unpublished — out of fear of sanctions?

It seems that our criminal justice system is being used improperly to handle particular social problems. The criminal justice system handles individuals with problems that society cannot specifically cope with by placing criminal sanctions upon those particular activities. If you take a look at the individuals presently being processed through a number of our minor courts, you will find that individuals with mental, social and physical problems are handled pursuant to the criminal justice system.

We do not have the resources to handle these mental, social and physical problems. We then push these individuals through the criminal justice system. A second, growing situation concerns individuals sitting out fines in jail for minor offenses. Minor courts fine individuals for behavior that is a violation of laws. These are individuals primarily of low income. When they cannot pay for the fines given to them by the minor courts, the court system has them sit out the fines.

Society is handling the problems that we face by making them criminal offenses. The poor are being penalized by sitting out monetary fines which have been set forth by the court. This growing trend of handling problems in our society does not seem to be of concern, unless you are involved in it.

The legal system, and especially the Washington State Bar Association, has a responsibility to take a look at these trends. The real danger is that no one seems to be concerned.

I'm currently living in France and have to worry about obtaining CLEs since I've elected not to go inactive at this point. I just got my Bar News and was delighted to see a real rarity — a rule change of any kind that actually makes life a lot more convenient for those regulated by it. Thank you for the great changes to the reporting requirements, which have been unreasonably cumbersome for years. More great work by the Bar. I appreciate it.

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