No. 99-40632
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United States Court of Appeals
For The Fifth Circuit
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PETER VEECK, doing business as RegionalWeb,
Appellant,
v.
SOUTHERN BUILDING CODE CONGRESS INTERNATIONAL INC.,
Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
Honorable David Folsom
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Brief for Amici Curiae
Association of American Physicians & Surgeons, Inc.
Eagle Forum Education and Legal Defense Fund
Filed in Support of Appellant
Peter Veeck, doing business as Regional Web
Supporting Petition For Rehearing En Banc
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Karen B. Tripp
1100 Louisiana St., Suite 2690
Houston, Texas 77002
Phone: (713) 658-9323
Andrew Schlafly
521 Fifth Avenue – 17th Floor
New York, NY 10175
Attorneys for Amici Curiae
Supplemental Statement of Interested Parties
Peter Veeck, doing business as RegionalWeb,
Appellant,
v. No. 99-40632
Southern Building Code Congress International Inc.,
Appellee.
The undersigned counsel of record certifies that the Association of American Physicians & Surgeons, Inc. and Eagle Forum Education and Legal Defense Fund have an interest in the outcome of this case. These representations are made in order that the judgment of this court may evaluate possible disqualification or recusal.
___________________________
Karen B. Tripp
Attorney at Law
1100 Louisiana Street, Suite 2690
Houston, Texas 77002
Phone: (713) 658-9323
Attorney of Record for Amici Curiae
TABLE OF CONTENTS
Supplemental Statement of Interested Parties ……………………………….i
Table of Contents …………………………………………………………....ii
Table of Authorities ………………………………………………………...iii
Concise Statement of Identity of Amici Curiae, Interest in the Case, and
Source of Authority to File …………………………………………………iv
Argument ……………………………………………………………………1
In The 1
STATUTES 4
Conclusion 12
TABLE OF AUTHORITIES
CASES
Banks v. Manchester,
128 U.S. 244 (1888)………………………………………………..…2, 3
Buckley v. Valeo,
424 U.S. 1 (1976)……………………………………….……………….5
Building Officials & Code Admin. v. Code Technology, Inc.,
628 F.2d 730 (1st Cir. 1980)………...…………………………………..3
Khan v. State Oil Co.,
522 U.S. 3 (1997)………………………………………………………..2
Mills v. Alabama,
384 U.S. 214 (1966)…………………………………….……………….5
Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477 (1989)…………………………………………………..1, 2
Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,
460 U.S. 533 (1983)…………………………………………………..…1
Veeck v. Southern Building Code Congress International, Inc.,
No. 99-40632, slip op. (5th Cir. February 2, 2001)……………….passim
5 U.S.C. § 552 ……………………………………………………………...….4
Concise Statement of Identity of Amici Curiae,
Interest in the Case, and Source of Authority to File
The Association of American Physicians & Surgeons, Inc. (“AAPS”) is a nonprofit organization dedicated to defending free market medicine. Founded in 1943, AAPS has thousands of physician members in all specialties. Members of AAPS must comply with the AMA-controlled CPT medical codes that are not readily available over the Internet. AAPS seeks rehearing en banc here to ensure that its members have unrestricted access to laws.
Eagle Forum Education and Legal Defense Fund (“EFELDF”) is a nonprofit organization founded in 1981. It is dedicated in part to promoting greater public access to governmental records, including information relating to medicine, education and government-funded research. EFELDF seeks a rehearing en banc here to ensure that copyright laws are not used to deny the public access to legal requirements and public school educational materials.
Amici have a direct and vital interest in the issues presented to this Court based on direct costs and obstacles in accessing legal requirements and materials.
Argument
The Decision of the panel majority (the “Decision”) is contrary to Rule of Law, unrestricted public access to law, free speech about the law, and economic policy. The Decision violates Rule of Law because it expressly conflicts with a well-established Supreme Court precedent. Rule of Law requires, at a minimum, that only the Supreme Court overrule its precedents. The Decision is contrary to unrestricted public access to law, as required by fundamental principles of due process and freedom of information laws. The Decision conflicts with free speech about the law, as it infringes on the right of citizens to restate the law. Finally, the Decision endorses an untenable economic theory, with the effect that the overall costs to the public are inflated for the benefit of a privileged few.
For these reasons, explained in detail below, we urge rehearing en banc.
I. In Rejecting Supreme Court Precedent, the Decision Violates Rule of Law.
“Needless to say, only this Court may overrule one of its precedents.”
Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (per curiam) (criticizing a Court of Appeals for departing from a Supreme Court precedent). Justices have subsequently emphasized this point further, describing departure from Supreme Court precedent as an “indefensible brand of judicial activism.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 486 (1989) (Stevens, Brennan, Marshall and Blackmun, JJ., dissenting). The fundamental principle of Rule of Law applies even though the precedent appears to be plainly wrong and a unanimous Supreme Court subsequently overrules it. See Khan v. State Oil Co., 522 U.S. 3, 20 (1997) (“Court of Appeals was correct in applying th[e] principle despite disagreement with [the precedent], for it is this Court's prerogative alone to overrule one of its precedents.”) (emphasis added).
Here, the panel majority quoted the Supreme Court precedent that “as
a matter of public policy, judge’s opinions are not subject to copyright because the public interest is served by free access to the law … [and] ‘the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all.’” Slip Op. at 11-12 (quoting Banks v. Manchester, 128 U.S. 244, 253 (1888), emphasis added). The panel majority described this precedent as “vexatious”, noting that “[t]his point would seem to apply equally to any statute, ordinance, or regulation that has the force of law irrespective of authorship.” Slip Op. at 12. But the panel majority then held that “extrapolating broad generalities from such a narrow holding is risky.” Id.
The panel majority erred in considering this case as an extrapolation. When the subject matter has force of law – as the building codes here do – the Banks precedent is controlling. The threshold issue under Banks is whether the subject matter is “binding [on] every citizen.” 128 U.S. at 253. Where, as here, the answer is yes, then Banks controls the outcome: the subject matter is “free for publication to all.” Id. Holding otherwise contradicts the Banks precedent.
The “extrapolating” cited by the panel majority is erroneously based on SBCCI’s interests, not citizens’ fundamental right to access the law. SBCCI’s role in developing the law is irrelevant to the Banks analysis. Moreover, any claim of SBCCI to restrict access to its work is surely waived when it “encourages” governments to require its codes by law. Slip Op. at 2. Virtually all of the value of SBCCI’s codes depends on government requiring it as law, and SBCCI cannot simultaneously argue that government should mandate its codes and that the public must pay SBCCI for access.
The Decision also conflicts with the twenty-year-old teaching of the First Circuit: “The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process.” Building Officials & Code Admin. v. Code Technology, Inc., 628 F.2d 730, 734 (1st Cir. 1980). The Decision creates an unwarranted conflict among the Circuits, and rehearing en banc is appropriate.
II. In Depriving Electronic Access to the Law, the Decision Violates Due Process and Freedom of Information.
The premise of the Decision is that “the district court likewise was presented with no evidence that Veeck or others had been denied access vel non to the codes in question.” Slip Op. at 16-17. But Veeck and the entire public are denied the essential electronic access to the codes in question. Non-electronic access is simply no longer sufficient to satisfy the legitimate needs of the public to legal requirements. Most states provide electronic access to their statutes, regulations and judicial opinions over the Internet, ensuring a more informed citizenry. The lone exception is codes withheld from the Internet due to a proprietary interest asserted by private entities like SBCCI. As a result, compliance with the withheld safety codes will inevitably be less than for more widely circulated laws, and public safety will suffer.
The public has a right to convenient access to building safety laws and school requirements and all other state and local laws, and government has an interest in promoting such access. The Freedom of Information Act has expressly extended its provisions to electronic records. See, e.g., 5 U.S.C. § 552(a)(3)(C). The costs of an uninformed public on issues of safety and schooling are enormous to government and citizens alike. Imagine all the tragic building fires, with their enormous costs, that could be avoided if the public were more informed about building safety codes. The Decision prevents public servants like Veeck from providing this information to the public efficiently, in order to confer benefits to a special interest based on distribution inefficiencies. This judicially created inefficiency is unjustified.
III. The Decision Violates the Free Speech Right to Restate Law.
All citizens, including Veeck, have a fundamental free speech right to restate the law. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) (“‘[T]here is practically universal agreement that a major purpose of th[e First] Amendment was to protect the free discussion of governmental affairs’ ….”) (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). The Decision declares that “SBCCI is not stifling … speech about the law.” Slip Op. at 21. But SBCCI is stifling a restatement of the law itself, a prerequisite to scrutiny of and debate about the law. For example, it is impossible to construct a meaningful electronic message board for debating the law, if the law itself cannot be posted electronically. By depriving Veeck and other citizens from restating the law electronically, the Decision does stifle free speech rights of those bound by the law.
IV. The Decision Relies on Untenable Economics, Imposing Higher Public Costs.
The Decision ultimately relies on an economically untenable policy judgment. The panel majority overlooked that the public will bear the entire cost for the code development regardless of the approach taken. The Decision artificially inflates those costs for the narrow benefit of a few organizations like SBCCI, by encouraging private obstacles to public access to laws.
The financial value of SBCCI’s codes are directly proportional to the extent that governments require them. When government adopts the codes, both government and SBCCI benefit from that decision. Allocating the benefits of that bargain should be part of the negotiation between government and SBCCI, as the dissent correctly observed. Slip Op. at 5 n. 3 (Little, J., dissenting).
Even if Veeck won here, SBCCI would still find it profitable to obtain these mandates without charging government a fee. The value of a government “imprimatur”, in the terminology of the court, exceeds the value of the codes in the absence of such imprimatur. Slip Op. at 11. SBCCI would thus continue to encourage governments to impose its codes without charging governments a fee.
The panel majority erred when it found that, without any basis in the record, “the foreseeable outcome” of Veeck prevailing would be “that state and local governments would have to fill the void directly, resulting in increased governmental costs.” Slip Op. at 14. That finding is unsubstantiated and economically implausible. The value of the codes would be $0 to SBCCI in the absence of the government mandates, and the value of the government mandates even if Veeck prevails would be in excess of $0 from the imprimatur alone. Thus SBCCI would continue to encourage governments to impose its codes without charge to the governments.
Amici respectfully request a rehearing en banc in this action.
Respectfully submitted,
_________________________
Karen B. Tripp
Attorney at Law
1100 Louisiana Street, Suite 2690
Houston, Texas 77002
Phone: (713) 658-9323
Fax: (713) 658-9410
CERTIFICATE OF SERVICE
I hereby certify that two true and correct copies (on paper and computer disk) of the foregoing document were served, by delivery to Federal Express (third-party commercial carrier) for overnight delivery, postage/shipping prepaid, to counsel of record listed below, pursuant to Fed. R. App. P. 25(b), and that the same document was filed, by delivering an original and twenty copies (on paper and computer disk) to Federal Express (third-party commercial carrier) for overnight delivery, postage/shipping prepaid, to the Clerk of the Court, pursuant to Fed. R. App. P. 25(a)(2)(B)(ii), on this __ day of February, 2001, at the following addresses:
Eric
Weisberg
200 West Main Street
Denison, Texas 75020-3025
Counsel for Plaintiff-Appellant
Robert
J. Veal
Burr & Forman
South Trust Tower
420 N. 20th Street, Suite 3100
Birmingham, Alabama 35203
Counsel for Defendant-Appellee
Michael Lowenberg
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1700 Pacific Ave., Suite 4100
Dallas, TX 75201-4618
Counsel for Amicus AMA
Mr. Charles R. Fulbruge III
Clerk of the Court
United States Court of Appeals
for the Fifth Circuit
600 Camp Street
New Orleans, Louisiana 70130
___________________ Karen B. Tripp, Esq.
CERTIFICATE OF COMPLIANCE
Pursuant to 5th Cir. R. 32.2. and 32.3 and Fed. R. App. P. 32(a)(7)(C), the undersigned certifies this brief complies with the type-volume limitations of 5th Cir. R. 32.2.7(b) and Fed. R. App. P. 29(d).
Exclusive of the exempted portions in 5th Cir. R. 32.2 and Fed. R. App. P. 32.2.7(b)(3), the brief contains 1,590 words.
The brief has been prepared in proportionally spaced typeface using Times New Roman 14 point font for text and 12 point font for footnotes produced by Microsoft Word 97 software.
An electronic version of the brief has been provided and if the Court so requests, the undersigned will provide a copy of the word or line printout.
The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in 5th Cir. R. 32.2, may result in the Court’s striking the brief and imposing sanctions against the person signing the brief.
_________________________
Karen B. Tripp, Esq.