How does the 5th Circuit REALLY feel about TP's?

[Prof]

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 11-60113
Summary Calendar
ETTA LOWERY,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
Appeal from the Decision of the
United States Tax Court
Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges..
PER CURIAM:*
Etta M. Lowery, proceeding pro se challenges the judgment of the tax
court sustaining the deficiencies and penalties sought by the Commissioner.
We affirm.
The appellant taxpayer presented a number of familiar “tax protestor”
arguments (characterized as “shopworn” by the tax court) such as she was not
subject to the Internal Revenue Code. On appeal she raises different - equally
frivolous arguments that compensation paid to her for services (which she did
not request) is not taxable income because she is not a government employee;
that because she lives in one of the 50 states rather than in a federal territory
she is not subject to federal income taxes and that a tax on compensation for
services would be an unconditional direct tax.
Appellant’s brief on appeal consists primarily of citations to irrelevant
federal case law and other legal authorities. Her principal argument that
remuneration for services received by private employees residing in one of the
50 states is not subject to federal income tax is patently frivolous.
The judgment of the tax court is AFFIRMED.

United States Court of Appeals
Fifth Circuit
F I L E D
August 24, 2011
Lyle W. Cayce
Clerk
Pursuant to 5TH CIR. * R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-60113 Document: 00511581308 Page: 1 Date Filed: 08/24/2011
No. 11-60113

2

[Kestrel]

On appeal she raises different - equally frivolous arguments that compensation paid to her for services is not taxable income because she is not a government employee; that because she lives in one of the 50 states rather than in a federal territory she is not subject to federal income taxes and that a tax on compensation for services would be an unconditional direct tax.

The judgment of the tax court is AFFIRMED.

United States Court of Appeals
Fifth Circuit

Where else have I heard these same arguments? Tommy Cryer!

Cryer is in the 5th Circuit's jursidiction. Things do not look promising for him...

Pursuant to 5TH CIR. * R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

I've heard the "unpublished and not precedent" clause used by TPs to justify ignoring such court rulings. I'm no lawyer, but that always struck me as a bogus argument. So this time (armed with the rules citation) I looked it up in the 5th Circuit Rules and Internal Operating Procedures.

47.5.1 Criteria for Publication. The publication of opinions that merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession. However, opinions that may in any way interest persons other than the parties to a case should be published. Therefore, an opinion is published if it:
(a) Establishes a new rule of law, alters, or modifies an existing rule of law, or calls attention to an existing rule of law that appears to have been generally overlooked;
(b) Applies an established rule of law to facts significantly different from those in previous published opinions applying the rule;
(c) Explains, criticizes, or reviews the history of existing decisional or enacted law;
(d) Creates or resolves a conflict of authority either within the circuit or between this circuit and another;
(e) Concerns or discusses a factual or legal issue of significant public interest; or
(f) Is rendered in a case that has been reviewed previously and its merits addressed by
an opinion of the United States Supreme Court.

An opinion may also be published if it:
Is accompanied by a concurring or dissenting opinion; or reverses the decision below or affirms it upon different grounds.

So I learned something new today that restored my faith in the system: An unpublished opinion is unpublished because it has published opinions as its foundation which already address the same issues. The court is saying "nothing new to see here, folks, move along, move along..."

Gotta love it. Someone else raises several of Cryer's TP arguments before the same court that he's subject to, and not only gets shot down but gets told "your arguments aren't even worth the paper they were written on." No eee-vill government conspiracy at work, just a fresh stomp on old well-trodden hash.

Side note: Thanks to the Quatloos lawyers for being patient with my fumbling legal research, and my glee at discovering what is already obvious old news to you.

[Cathulhu]

I've heard the "unpublished and not precedent" clause used by TPs to justify ignoring such court rulings. I'm no lawyer, but that always struck me as a bogus argument. So this time (armed with the rules citation) I looked it up in the 5th Circuit Rules and Internal Operating Procedures.

47.5.1 Criteria for Publication. The publication of opinions that merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession. However, opinions that may in any way interest persons other than the parties to a case should be published. Therefore, an opinion is published if it:
(a) Establishes a new rule of law, alters, or modifies an existing rule of law, or calls attention to an existing rule of law that appears to have been generally overlooked;
(b) Applies an established rule of law to facts significantly different from those in previous published opinions applying the rule;
(c) Explains, criticizes, or reviews the history of existing decisional or enacted law;
(d) Creates or resolves a conflict of authority either within the circuit or between this circuit and another;
(e) Concerns or discusses a factual or legal issue of significant public interest; or
(f) Is rendered in a case that has been reviewed previously and its merits addressed by
an opinion of the United States Supreme Court.

An opinion may also be published if it:
Is accompanied by a concurring or dissenting opinion; or reverses the decision below or affirms it upon different grounds.

So I learned something new today that restored my faith in the system: An unpublished opinion is unpublished because it has published opinions as its foundation which already address the same issues. The court is saying "nothing new to see here, folks, move along, move along..."

Gotta love it. Someone else raises several of Cryer's TP arguments before the same court that he's subject to, and not only gets shot down but gets told "your arguments aren't even worth the paper they were written on." No eee-vill government conspiracy at work, just a fresh stomp on old well-trodden hash.

Side note: Thanks to the Quatloos lawyers for being patient with my fumbling legal research, and my glee at discovering what is already obvious old news to you.

Very cogently put, Kestrel, and as one of the non-lawyers I appreciate your statement. The deniers do use the failure to publish as an indicator of "they don't want to print it so I'm really right, and I'm in jail due to injustice rather than repeatedly breaking the law!"

[LPC]

So I learned something new today that restored my faith in the system: An unpublished opinion is unpublished because it has published opinions as its foundation which already address the same issues. The court is saying "nothing new to see here, folks, move along, move along..."

What is of more interest to me is the consequence of a court designating an opinion as "unpublished." According to 5th Circuit Rule 47.5.4, which reads (in part):

Unpublished opinions issued on or after January 1, 1996*, are not precedent, except under the doctrine of res judicata, collateral estoppel or law of the case (or similarly to show double jeopardy, notice, sanctionable conduct, entitlement to attorney's fees, or the like). An unpublished opinion may be cited pursuant to FED. R. APP. P. 32.1(a).

The first sentence and the second sentence are somewhat conflicting, because Federal Rule of Appellate Procedure 32.1(a) states that:

(a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as unpublished, not for publication, nonprecedential, not precedent, or the like; and (ii) issued on or after January 1, 2007.

The federal rule doesn't tell you the effect of citing an unpublished opinion, but there wouldn't be any point to being able to cite an opinion if the opinion did not have some precedential value.

I have come to the opinion that a court labeling an opinion as "nonprecedential" is unconstitutional. The Constitution gives federal courts the power to decide "cases or controversies." For a court to decide a case and also decide whether or not it is "precedential" is beyond the scope of its power under the Constitution because the court is then not merely deciding the case but "making law."

That said, courts might give more weight to published decisions than unpublished decisions, but to say that an unpublished decision has no meaning whatsoever is both wrong as a matter of logic, contrary to principles of common law, and wrong as a constitutional matter.

[Cathulhu]

I'm certain you'll correct me if I'm wrong, Dan, but I don't think we said a nonpublished opinion is worthless. It's nonpublished because it covers old ground already established in most cases, and it's the TP idiots who then try to say nonpublished means something else.

[Pottapaug1938]

That's the impression I got from the explanation of unpublished opinions. I took everything to mean that the court is saying "we've explained this already, in the various law reporters; and we don't want to take up more of their space explaining it AGAIN."

[LPC]

I'm certain you'll correct me if I'm wrong, Dan, but I don't think we said a nonpublished opinion is worthless.

No, you didn't, and didn't mean to suggest that you had.

It's the rules of the 5th Circuit that say an unpublished opinion is worthless as a precedent, and that's what I was commenting on.

I found some interesting comments about the history and purposes of the "do not publish" rules in an on-line interview with a law professor.

[Kestrel]

I'm certain you'll correct me if I'm wrong, Dan, but I don't think we said a nonpublished opinion is worthless.

No, you didn't, and didn't mean to suggest that you had.

It's the rules of the 5th Circuit that say an unpublished opinion is worthless as a precedent, and that's what I was commenting on.

I found some interesting comments about the history and purposes of the "do not publish" rules in an on-line interview with a law professor.

I also appreciate your elaboration. That's an interesting discussion. If I'm reading it correctly, the problem is that any particular case's merit as precedent should be decided by a future court in a future decision, and not prohibited to the future court by the original deciding court.

So, under the current rules: 1) An unpublished case is unpublished because it demonstrates nothing new; the arguments raised are undifferentiated from previous cases, and the decision goes the same way as previous rulings on those same arguments; 2) The unpublished case can still be cited in future cases, primarily to demonstrate a consistent pattern of decisions; 3) For defining precedent in future cases, the older published case at the root of the decision is the one that should be cited.

For purposes of knocking down TP's however (regardless of the precedent problem), the choice made by the court to render unpublished a decision against said TP is actually a valuable statement in itself. It says the arguments raised by the TPs are worthless recycled hash unworthy of additional comment. Or so it seems to us layfolks.

[triumphguy2]

California has a similar rule regarding unpublished opinions: they are citable for the purposes of law of the case, collateral estoppel or res judicata, but otherwise cannot be even mentioned. The majority of opinions in civil matters are unpublished, and unpublished opinions may not be cited for ‘guidance’ or ‘to illustrate reasoning of the courts’. As a research attorney with a substantial civil appellate practice, I am a bit conflicted on the issue: it is frustrating to find an opinion which is on all fours with my issue but not citable because unpublished. On the other hand, I have read some unpublished opinions that were so bad, so wrong on the law, that even though they may have been correct on the outcome, they held enormous capacity for mischief. Even a poorly reasoned, wrong-on-the-law opinion, if published, has to be dealt with when the other side brings it up. And, as our TP friends demonstrate every day, even well written opinions can be twisted to their own purposes. Some of the unpublished opinions I have read would be gold mines for such litigants – and minefields for others. There is a suggestion that the practice of non-publication makes justices lazy because they know they do not have to be particularly careful with their language or analysis since the opinion is non-precedential. I think there is some truth to that, but not a lot; there is certainly no shortage of poorly reasoned, poorly written published opinions. See Harris v. Superior Court (1991), 3 Cal. App. 4th 661, 665; 4 Cal. Rptr. 2d 564, 567: “A short digression on the subject of what cases mean--obligations of the writer and the reader.”
I actually requested an ethics opinion from the State Bar on this issue, more on the issue of plagiarism than policy. It is often the case that I find language in an unpublished case which fits my client’s situation exactly – so perfectly, in fact, that I want to use that very language. However, it is clear that an attorney cannot cite to an unpublished case as authority for the resolution of a particular issue. It is also clear that no attorney – indeed, no writer of any kind – should use the work of another without appropriate attribution. However, if I tell the court that the clear and compelling argument in my brief is taken word-for-word from an unpublished opinion, I am, in fact, implicitly attempting to use that opinion as authority for the proposition. If I do not tell the court the source of my apparent scholarship, I am using the product of another without revealing it. Simply paraphrasing the language makes its use less obvious, but the problem remains: even a little plagiarism is still plagiarism. I did not want to stop using the ‘copy/paste’ function completely, but I also did not want to misrepresent my work to the court. The Bar responded by simply repeating to me the same court rules and Rules of Professional Conduct I had cited in my letter.
So the whole issue of unpublished, non-citable, non-precedential cases has many facets. I am not convinced there is any constitutional impediment to the decision to order an opinion not published. Whether the practice of non-publication is a good idea from the perspective of policy and use of resources is much more complicated.

[Judge Roy Bean]

... Some of the unpublished opinions I have read would be gold mines for such litigants – and minefields for others.

Indeed, particularly in pro se settings. It's similar in scope to those who claim victory in a case using some cut-and-paste pleading that had nothing to do with the outcome - no ruling on the merits was entered but the un-tested motion was in there and that side didn't lose.

[LPC]

I practice in one of the few states in which trial court opinions are published (in fact, we have a reporter devoted to trust and estate matters), and I think that the result in a richer and more detailed body of law. I therefore believe that more publication is better than less.

The problem in Pennsylvania is that the trial court opinions are usually well-researched and well-reasoned, and the judges of different counties respect one another's decisions, but the Superior Court doesn't really pay any attention to trial court opinions and the Supreme Court really doesn't pay much attention to Superior Court opinions. So you can develop a consistent body of case law over a number of years, with everyone "knowing" what the settled law is, until a case is appealed and the appellate court decides that it's writing on a blank slate and can decide the issue after contemplating their collective navels.

But you can't stop bad judging, and I still think that more published decisions are better than fewer.

[wserra]

NY is like PA in that respect - trial court opinions are frequently reported. Ninety percent of the various "Misc" series is comprised of them. They are frequently cited, especially by other trial courts.

And I agree with Dan that more is better. Sure, there will be some inconsistent results, but the bottom line is generally greater predictability - an important thing in itself.