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This Order is not intended for publication or for inclusion in the databases of Westlaw or LEXIS.” (emphasis mine).

Judge A. Howard Matz

And this is the condemnation that light is come into the world and men loved darkness rather than light because their deeds were evil. For everyone that doeth evil hateth the light, neither cometh to the light, lest his deeds should be reproved. -Revelation 14:19-20

HARVARD CENSORSHIP REPORT CARD FOR HOWARD MATZ. F

A. Howard Matz (born 1943) is an American attorney and likes to play judge. But cares not for the truth and justice. He prefers to make his own brand. He loves secret things, too.

He has sat on the United States District Court for the Central District of California since 1998.

He is appointed for LIFE!!

RESIST CENSORSHIP AND TYRANNY

The courts are now going secret.

On December 21, 2009 Judge A. Howard Matz, of the United States District Court for the Central District of California, issued an 7-page order in the case of POM Wonderful LLC v. Welch Foods, Inc..   This opinion includes, among other things, a discussion of standing under the California Unfair Competition Act and the California False Advertising Act.  At the end of the document, the judge writes:  “This Order is not intended for publication or for inclusion in the databases of Westlaw or LEXIS.” (emphasis mine)

A quick search of Bloomberg Law dockets produces at least a dozen other orders from this same judge with this same language.

So what about Bloomberg Law.com?  Or Google Scholar?  Or Fastcase?  Justia?  May any/all of them include the order?

Or is it just the strength of the Wexis duopoly and the judge really means he does not want the order published online anywhere.

LexisNexis and Westlaw have been the big players for decades.  But Google really could be a game-changer.  As a review article in the March 8, 2010 issue of The Recorder (“Worthy Adversary”) by Oliver Benn of Google Scholar points out:

If Google wants to devote its resources to addressing its current limitations, the future of legal research could become very different.  Many courts accept briefs electronically.  Why not hyperlink cited cases in the brief to the cases’ free Google pages?

Matz, A Howard reference * Short Description * United States federal judge

Comment * A. Howard Matz (born 1943) is an American lawyer and judge. He has sat on the United States District Court for the Central District of California since 1998.

label * Howard Matz

Howard Matz

Category: Judges of the United States District Court for the Central District of California.

Category: United States district court judges appointed by Bill Clinton

Category: 1943 births * Category: Living people

Given name Alvin Howard

Name * A. Howard Matz, A Howard Matz

Matz, A. Howard

Born 1943 in Brooklyn, NY

Federal Judicial Service:
Judge, U. S. District Court, Central District of California
Nominated by William J. Clinton on October 20, 1997, to a seat vacated by Harry L. Hupp; Confirmed by the Senate on June 26, 1998, and received commission on June 29, 1998.

Education:
Columbia University, A.B., 1965
Harvard Law School, J.D., 1968

Professional Career:
Law clerk, Hon. Morris E. Lasker, U.S. District Court, Southern District of New York, 1969-1970
Private practice, New York City, 1970-1972
Private practice, Los Angeles, CA, 1972-1974
Assistant U.S. attorney, Central District of California, 1974-1978
Chief, Special Prosecutions Unit, 1977-1978
Private practice, Los Angeles, CA, 1979-1998

COMMENTS:

Mar 11, 2010 9:37 AM CDT

Judge Matz is a fool. 

How dare he issue any decisions at all which are not definitive or exhaustive.  Is the admission that he is issuing such decisions an admission that some litigants are getting the shaft based upon a cursory and perhaps incorrect reading of the law?  And if it is correct, why isn’t it definitive.

Judge Matz ... if your decisions are not definitive, if they are not of the caliber which merit publication (even if they are not published), if they are not sufficiently authoritative to be included in a developing jurisprudence on the issues involved, then you should remove yourself from the bench.

Mar 11, 2010 11:20 AM CDT

Since others can still disseminate Matz’s orders, the request is impractical, Cleveland says. It’s also inappropriate to try to create a secret body of law…

Unpublished opinions are often the only indication a practitioner has regarding a judge’s politics, former practice background, or record of ruling on similar issues. The judge’s ruling won’t keep major firms from keeping databases of old opinions and orders, which may ultimately put smaller or newer practitioners who come before his court at a disadvantage.

Mar 11, 2010 12:10 PM CDT

Unpublished federal opinions, orders and other dispositions remain citable as authority with variations on a circuit-by-circuit basis regardless of any judicial equivalent of a Bushian “signing statement” within it.  For example, the Ninth Circuit’s L.R. 32.1 flatly bars a district court from prohibiting or restricting the citation of “federal judicial opinions, orders, judgments or other written dispositions” that have been designated as “unpublished . . . or the like” and were “issued on or after January 1, 2007.” 

All this indicates that Judge Matz is blowing smoke, and that Westlaw and Lexis are free to disregard his wishes.

Mar 11, 2010 2:19 PM CDT

There is no reason why any judge should be able to designate a decision as unpublished or published. Everything they produce should be published and citable.

Mar 12, 2010 7:27 AM CDT

my thoughts on the article were that maybe the Judge requested it not be published so that he would get the publicity (reverse psychology).  For some people bad publicity is better than none.

Mar 12, 2010 9:00 AM CDT

As I read the story, the Judge did not say “Don’t print this . . . .”  My reaction is that the sentence quoted in the story, alone, on its face, does NOT prohibit publication by Westlaw or Lexis—but simply states that the Court does not intend that it be published.  Thus—if Westlaw or Lexis should decide to publish it anyway, seems to me they likely have NOT violated any enforceable court order; and if other research engines can publish it, or are publishing it, then it also seems to me that equity would be on the side of Westlaw and Lexis in any action to “enforce” the Judge’s stated intent.  However, it’s probably never a real good idea to take a chance on annoying a Judge, whether or not such annoyance is actionable.

Mar 14, 2010 8:51 PM CDT

Peter Lomtevis, imagine how they would have treated you or your client if you pled the Antipeonage Act and that not only do they not have the right to make your client a slave based on any debt or obligation, 42 U.S.C. 1994, but that it is a FELONY to do so, 18 U.S.C. 1581!

For further details please see www.antipeonage.0catch.com

And yes, both Washington and the federal appellate courts preferred to bury my claims with unpublished deciaions (sometimes quite irrational with Alice in Wonderland logic) that the supreme courts could ignore by denying review and certiorari.

What is amazing is that only Westlaw, Lexis, and Pacer may have these opinions.  When lawyers use them, they are using stuff that may not be available to the public.  What that means is that the public once again is left out of the legal process and it again becomes the exclusive domain of the legal professionals. 

  There should be rules of court that require lawyers and judges who cite to unpublished opinions to supply copies of the entire decisions. 

  Recently, the ABA published an article about the divergence of decisions in EEOC complaints based on a judges sex, and ethnicity.  The results were statistically significant but the articles authors still believe that there is a rule of law? 

  In addition to a court’s rulings, Lexis, Westlaw and Pacer should allow either of the litigants to submit a response that may question an opinion and be in opposition to the judicial opinion.

Many opinions contain judicial fiction that is used to dismiss actions and possibly to sanction participants.  (I look back at the history of SCOTUS where the court has reversed itself after many years. Think about Brown v Board of Ed and its predecessors. another example would be Bowers v Hardwick, and Lawrence v Texas, or death penalty cases where a mental deficiency existed or age was a factor in determining death sentences.) 

    I looked at a case I had that was decided by SCOTUS, and I lost 9-0 - but the opinion had questionable factual statements.  I was upset by the decision, but even more upset because it reflect errors in facts that protected the judiciary and legal profession. 

    In many actions where a non-attorney is involved, a judge is more likely to favor a lawyer.  There are many reasons for this result.

a.  It is easier for a judge to clear his docket - by using a submission by a lawyer.  Lawyers are good writers and it is just easier for a judge to adopt these writings. 

    b.  A judge may not want to rock the boat!  When there are novel areas of law, it is more likely to be brought by a non-lawyer since they have more to lose in court than members of the legal profession. 

    c.  Lawyers are hesitant to criticize a judge since they may have to appear before that judge and his/her colleagues in the future.  

    d. Many of the reasons give in the comments above are ones that question the process and that is something that is critical to our legal system.  that is not what judges want published. 

    e.  Recently, some bar associations have sanctioned members for making comments that were critical to the judiciary or the legal profession.  It is a damper on free speech by those who should be protecting it.

As an example, I sued a state court judge for failure to properly maintain files.  The federal judge found that the action was frivolous and sanctioned me.  However, I did submit studies and a letter from the Judicial conference of the United States approving imaging projects in Federal courts. 
The federal judge did not read the electronic submissions - and of course protected the state court judge.  it was not just protecting the state court but the state system of maintaining files that may not work.  Only after being in the system for a long time have I been exposed to :

  a.  Lawyers who fail to send all papers to all parties (purposely.)
b.  Court files that fail to include documents from earlier judges.
c.  Misfiling of court files (electronically maintained case files, once filed correctly, are not going to be misfiled after being used.)
d.  Insure that a party who takes out part of a file doesn't destroy the history of an action. 

    I could continue this type of critic but it might be several pages, and it most likely would impact me just as some of my past writings and actions have impacted me.

Mar 15, 2010 7:34 AM CDT

#39—There’s no institutional bias against pro pers.  Go read Gideon v. Wainwright.  But there is a bias against people, licensed or not, that don’t know what the heck they’re doing.  In most courts that ratio is expnentially higher for non-lawyers than for lawyers.

Mar 15, 2010 11:11 PM CDT

In response to AndytheLawyer
I did read Gideon and also the history behind Gideon.  Try Anthony Lewis - who talks bout how the lawyer who defended Gideon played poker with Justice Douglas.  (He later became a supreme court justice (Abe Fortise). Gideon’s Writ was hand written and was about three pages long. 
At the time that SCOTUS reversed - the majority of states had already decided the same issue.  Scotus only affirmed what the majority of states were doing. 

    As to being able to interpret law, I still believe that if all of the RPC were strictly enforced there would be about 50% fewer lawyers practicing law.  One problem with our legal system is that many judges have a presumption that a pro se is not competent.  that is not starting from any scale of justice that i know. 

Ironstone JD

  The recent issues being raised by Scotus and the President shows just how political courts have become. 
If you look at one of the recent ABA reports about bias in EEOC cases, you should question why the SD between decisions is based on sex and race of the judges.  What I found amusing was that the authors still believe that there is a rule of law! 


 

 

 

"ONLY ONE TRIBUNAL THAT EVER ADOPTED A PRACTICE OF FORCING COUNSEL UPON AN UNWILLING DEFENDANT IN A CRIMINAL PROCEEDING. THE TRIBUNAL WAS THE STAR CHAMBER." U.S. v FARETTA , 422 US 806 (1975)

OUTSIDE IT'S AMERICA.

WHAT WOULD BE THE CAPACITY OF LAW ENFORCEMENT AND OF THE COURTS TO SUPRESS THIS KIND OF SPEECH?" --Judge A. Howard Matz, PRE-TRIAL OF KILLERCOP

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Unpublished opinions Of Judge A. Howard Matz

A.K.A. Secrets From The Mind Of Judge A. Howard Matz, And Some Friends. A.K.A. The case of if only he had known.

213.894.5283

Unpublished opinions often show up in online databases, but one federal judge in Los Angeles is apparently trying to do something about it.

Judge A. Howard Matz has added this line to at least 15 recent orders: “This order is not intended for publication or for inclusion in the databases of Westlaw or Lexis.” The blog Legal Research Plus noted the unusual request and wondered why only two digital databases were mentioned.

“So what about Bloomberg Law.com?” the blog asks. “Or Google Scholar? Or Fastcase? Justia?”

Unpublished opinions are withheld from the official reports and traditionally treated as not having any precedential effect. But Matz's request referencing databases is out of the ordinary, according to David Cleveland, a law professor at Nova Southeastern University’s Shepard Broad Law Center.

“The practice of declaring the court's opinion not only ‘unpublished,’ but not for publication in Westlaw or Lexis, is certainly new to me,” Cleveland tells the ABA Journal in an e-mail.

Stephen Montes, Matz’s courtroom deputy clerk, says the language is intended as a signal—and is not a command to Westlaw or Lexis.

“On the occasions when the judge has added that language, it was designed to signal to the reader that he knew that the analysis in the order was not necessarily definitive or exhaustive--that the order should not be viewed as something he intended to contribute to developing jurisprudence,” Montes writes in an e-mail to the ABA Journal.

Matz references only Westlaw and Lexis because citations to unpublished opinions in the briefs he reads are to those databases only, Montes says.

But Cleveland sees some problems with Matz's language. “This court's order strikes me as impractical, inappropriate and potentially unconstitutional," he says.

Cleveland says the trend is toward greater openness, publication and citation of unpublished opinions.

He points out that the Federal Rules of Appellate Procedure were recently amended to bar courts from prohibiting or restricting citation to newly issued unpublished opinions. He also notes the E-Government Act of 2002 requiring courts to make available all written opinions on their websites.

Since others can still disseminate Matz’s orders, the request is impractical, Cleveland says. It’s also inappropriate to try to create a secret body of law, he says.

Cleveland argues that litigants ought to be able to point out a court’s prior decisions even if they aren’t binding precedent. He sees a potential due process or equal protection violation if litigants aren’t allowed to ask a court to act today as it did in the past or to explain the distinction.

Cleveland doubts that Westlaw or Lexis will comply with the judge’s request. He appears to be right. The ABA Journal turned up 15 cases in which Westlaw apparently ignored Matz and published his unpublished orders in its electronic database. In each case, Matz’s unfulfilled request was printed at the bottom of the document.

Matz has long been aware that sometimes his rulings do make their way into the databases, despite the sentence saying they are not intended to be included there, Montes says.

Montes emphasizes that the language is not an order to the publishers, and the judge doesn't always include it.

"Judge Matz never has ordered any attorney, party, database (including Westlaw and Lexis) or publication not to print any order of his, and he would never do so," Montes says. At least out loud.

Judge Matz prefers to phrase the questions instead as, ""What would be the capacity of law enforcement and of the courts to SUPRESS this kind of SPEECH?" -2002, Judge A. Howard Matz, Pretrial Hearing Of Killercop.com


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