CASE NO. 995232




For the Plaintiff:
By: KENNETH J. SCHMIER and JEANNE M. FAHEY, Attorneys at Law
1475 Powell Street
Emeryville, Ca 94608

For the Defendants:
By: THOMAS A. BLAKE, Deputy Attorney General
50 Fremont Street, Suite 300
San Francisco, Ca 94105

MONDAY, JULY 27, 1998
Morning Session


THE COURT: Anybody else, both parties present on the second half of the calendar?

THE CLERK: Calling Line 18 out of order, Michael Schmier versus Supreme Court of California.

MR. BLAKE: Good morning, Your Honor. Tom Blake, Deputy Attorney General for Defendant Supreme Court of California, California Court of Appeal, California Judicial Council.

MR. SCHMIER: Ken Schmier, Your Honor, on behalf of the Plaintiff.

MS. FAHEY: Jane Fay he on behalf of the Plaintiff.

MR. SCHMIER: Your Honor could help us greatly by indicating to us where there is a defect in our Complaint.

THE COURT: Well, this isn't a case where you haven't pled enough. It's also not a case where you pled too much. And since demurrers fall into three categories, you pled too little, you pled too much. And the third category, which is the paradigm classic demurrer, it just doesn't exist. And that's the flaw I see here. You don't have a cause of action here. Certainly not in the Superior Court. These rules were adopted and promulgated by the Supreme Court of the State of California according due process of law to the entire State of California. Thereafter, and since then, the Constitution of the State of California has been amended to authorize the Supreme Court to do exactly what it's doing here. And what these rules say, if I understand them correctly is, it's up to the Supreme Court to decide what cases get published ultimately, or don't get published. Now, that assumptively means to the extent that the Supreme Court has delegated that authority to the Court of Appeal, that if can be asked to certify it for publication any case if a Court of Appeal refuses such a request.

I understand what you have said to this Court about the potential conflict between law of the case and other authorities not being able to cite the case, and how that might be detrimental to a party. But assumptively the Supreme Court is fully aware that that might occur. And the real problem that I have is -- well, I have a number of problems. And one is of course going to the Supreme Court, which after all is a Court of Appeal, is a matter of discretion and privilege and not a matter of right. You have one appeal as a matter of right, and that's it.

MR. SCHMIER: Does the Court not feel that the California Supreme Court in making rules, is subject to the constitution of the United States and the Constitution of the State of California?

THE COURT: Do I feel that -- no, I don't -- well, yes I definitely feel that the Supreme Court of the State of California is subject to those principles. I suspect that they feel the same way. And the question is, the question really has to be to what extent it is -- I mean part of this is to what extent it is that the Superior Court, sitting in the State of California, can direct the Supreme Court to do anything. And whether or not if you have a charge against the Supreme Court in its rulemaking capacity, whether or not the proper court to go to isn't in fact the Supreme Court directly.

MR. SCHMIER: Well, Your Honor, our position is that there are two distinct functions of the Supreme Court and also our Complaint, Your Honor, is against the Judicial Council, which is a separate entity. And surely, under Your Honor's reasoning, Your Honor will concede that our Complaint stands as against the Judicial Council because that, of course, is not the Supreme Court.

THE COURT: Maybe I don't understand how the rules get adopted. But as I understand it, the rules are ultimately approved by the Supreme Court. Whether or not the Judicial Council undertakes to hold hearings and undertakes to consider the rules, they are ultimately approved by the Supreme Court.

MR. SCHMIER: But the statute requires the Judicial Council to promulgate rules to ensure uniform justice and efficiency throughout the community. Now, that organization is surely subject to the jurisdiction of this Court. Now --

THE COURT: You know what? I am not willing to concede that. I don't know that. Why is the Judicial Council subject to the Superior Court's jurisdiction and why not subject to the Supreme Court's?

MR. SCHMIER: Well, really for the same reason that the Supreme Court in its administrative rulingmaking capacity is subject to the jurisdiction of this Court. Because the Constitution of the State of California gives this Court general jurisdiction to grant extraordinary relief, and to review the actions of all the administrative bodies of the State.

THE COURT: Let's follow that analysis, and let's take it outside of the current dispute, just because we have a few minutes to play with jurisprudence and principles of due process of law. Who adopts the Federal Rules of Civil Procedure? And who adopts the Federal Rules of Evidence?

MR. SCHMIER: I don't know, Your Honor.

THE COURT: The United States Supreme Court. Who reviews the United States Supreme Court's action, ultimate action in the adoption of those rules? You know, certainly on some level, the trial courts interpret the rules of evidence and apply them. And they make pronouncements and they make pronouncements about the Federal Rules. But do they invalidate the rules?

MR. SCHMIER: It's not a matter of invalidating the rules, Your Honor. The rules are not valid because they are not constitutional. It's a matter of taking them off the books, so that the justice system is not confused by those invalid rules. The matter simply is, under -- that this Court, the Superior Court, has general jurisdiction. And there is no question about the fact that if the Attorney General, Dan Lungren, wants to appeal this to a higher court, and they want to appoint a court that doesn't have a conflict, that Your Honor's logic can be reviewed. But it would be wrong for the, for Your Honor to keep from the higher courts, your thinking on the constitutionality of these issues.

THE COURT: I am not sure about that. Nobody really cares what I think about these issues.

MR. SCHMIER: I think they care very much.

THE COURT: I am just a speed bump on the road to justice.

MR. SCHMIER: No, your input tells the higher courts what happens in the trenches of justice, when the Court is deprived of 93 percent of precedent in order to decide cases. You see, that would be quite useful to the higher court, I would think.

THE COURT: Indeed I am saying something here. I may be -- and I'm not. I may be saying "God spare me, I don't want to have to read the other 97 percent of the cases that are out there. I have got enough to read with just three percent of the cases."

MR. SCHMIER: I think, Your Honor, that brings us to the real issue here. The real issue is not --

THE COURT: And I haven't said that's my position.

MR. SCHMIER: Is not whether -- and I think it would be an honest response if the Court said, "Look, I really don't want to decide this issue, you know, because with regard to what they are doing to Tony Kline, they have made it pretty clear that they don't want anybody to step out of line."

THE COURT: Well, I am deciding the issue. I think I am giving you my best thought on the issue. And that is that I think this Court doesn't have the jurisdiction. And two, even if I say I have jurisdiction, you haven't stated causes of action here, because I don't think that the cases are on their face, or that the rule is on its face unconstitutional.

MR. SCHMIER: May I discuss that?

THE COURT: Especially when you have a constitutional provision that says that the Supreme Court makes the determination as to what cases are published.

MR. SCHMIER: But does it make the distinction in that? And frankly if the Court were, or the Attorney General can cite to me anyplace in the Constitution or in the statutes of the State of California, where the authority is given to the court to make precedent disappear. To say that things are uncitable as precedent. I am not talking about publication. I am talking about being citable as precedent. Then I'll just walk away. But what I can see is the only authority that's been given to the court is to decide what cases will be published. Under Auto Equity Sales, this Court, and all the other courts of the State are absolutely required to abide by the decisional law of higher courts. Now, the question is, how can the Court abide by the decisional law of higher courts, when the attorneys and the Court are prevented from mentioning 93 percent of the decisions of the higher courts? Your Honor, it boggles the mind. I mean -- excuse me, there is a reason, Your Honor, why all of us in a democratic society are taught the story of the king and his new clothes. Because there is a time when the king makes a judgment, and all of his ministers abide by that judgment, and it is silly. And that's what this is. It is a silly rule. It is impossible in a free society that a court, that a criminal defendant could be prevented from bringing to the Court's attention a case that would exonerate him. And that situation now exists, and if Your Honor will grant me a Temporary Restraining Order against the State, I would like to discuss the specific case that creates this threat that happened just a couple weeks ago, which I think is the finest ample of the tremendous harm of this rule.

THE COURT: Well, I am not sure that there is tremendous harm. There might be lots of reasons why cases are not published. There may be lots of reasons why an individual defendant may find himself the beneficiary of wrong thinking on the part of the Court of Appeal, that the Court of Appeal doesn't want to have published and become precedental. But I am not going to get behind why it is that the Court of Appeal makes a decision assumptively through the power delegated to it by the Supreme Court, to publish decisions initially or to not publish decisions.

MR. SCHMIER: Well, we know what the reasons are. The rule unfortunately doesn't include, the rule gives no standard upon which a decision has to be published. That decision can be published -- that decision cannot be published even though it creates entirely new law, and that thereby when connected with the No Citation Provision, can affect as a matter of law only one person. It can affect only one person. There is an equal protection problem. And there is a problem because there is a conflict with James Bean distilling versus Georgia. That case stands for the United States Supreme Court has said that selective prospectivity, that is a court deciding when it makes a decision that it can't be used to affect any other case, is unconstitutional. Now, it said that in James Bean. It said that it's unconstitutional in the civil context. It quotes Griffith versus Kentucky, that says that selective prospectivity is unconstitutional in the criminal context. Now, Your Honor, unless you can point to me some other context, this selective prospectivity scheme, this scheme that allows an Appellate Court to put the moniker, "Not To Be Published in the Official Reports," on the top of a case and thereby determine that it cannot be of use to affect any other case, is clearly unconstitutional. I mean I don't think it's -- I think that it's beyond dispute that because of these cases, it falls in that category. Now --

THE COURT: The Court of Appeal can make a mistake, can't it? And I rarely say that, because I am sitting in a trial court. So I always say the Court of Appeal never makes mistakes. But all you are saying to me is that from time to time when the Court of Appeal makes a determination whether to publish a decision or not to publish a decision, it sometimes makes a mistake.

MR. SCHMIER: No, Your Honor. That's not what I am saying. What I am saying, Your Honor --

THE COURT:They must be.

MR. SCHMIER: What's fundamental, the fundamental guarantee that the Court decides cases, that the Court system decides cases according to the law of the land and with equal protection to all of the people in this country, is that when it decides a case, it ultimately surfaces as a part of the law itself. That's a fundamental warrantee. Rule 977 removes that warrantee. And the people never voted on it. The people or its representatives never voted on it. So such a change should have the kind of imprimatur of the people, or the people's representatives.

THE COURT: There is a constitutional provision. It must have been adopted by the people.

MR. SCHMIER: I'd like to hear what in that constitutional provision says that the Court has the< authority to remove the precedental value of a decision of the court.

THE COURT: It decides, it certainly does say to the Court that it decides what is published or not published. And I guess the question would have to be what is the meaning of publication or not publication. Something that is not published --

MR. SCHMIER: Did it not happen?

THE COURT: But if it's not published, is it citable?

MR. SCHMIER: Did it not happen? That's the question.

THE COURT: My question is, is it citable? Did it happen or didn't happen? I don't know whether it happened or not. And that's the problem. If it's not published, I don't know whether it happened.

MR. SCHMIER: That's why 976 has to go, too. But does the Court not concede that the doctrine of stare decisis, inherited along with the common law which is part of the law of California pursuant to Civil Code Section 22.2, makes all the cases, all the decisions of the court, precedent. Now, I want to know, under what authority the Court altered that rule.

THE COURT: All right.

MR. BLAKE: Constitution gives the Supreme Court, the bottom line here, the authority to decide what is the decisional law of the State of California. And the Supreme Court has the authority to publish or not publish cases to that end. There's room for academic debate as to whether the depublication rule is the optimal way to do that or not. Perhaps in a perfect world the Supreme Court could review every line of every Court of Appeal decision and render a recent decision on it. But that's not the world we have. The bottom line here is the Supreme Court has the authority to decide the decisional law of the State and it decides that.

MR. SCHMIER: Under what?

THE COURT: Just a moment.

MR. BLAKE: The Courts of Appeal have standards for depublication. And if any of the parties were concerned with the case and feel it should be published or depublished. And depublished means just not become part of the decisional law. They have the authority to, or have the freedom to raise that in the appropriate courts at the appropriate time. And I think the rule is constitutional and I think that's the bottom line.

MR. SCHMIER: Your Honor, even if I were to concede and I don't, that the California Constitution granted any such right to the Court, and I haven't seen it and Mr. Blake hasn't cited it -- that the United States constitution, as demonstrated by James Bean, would make that rule unconstitutional -- would make that authority, even as granted by the California Constitution, unconstitutional under the United States Constitution. And -- but you have to interpret the constitutional rules, assuming that the makers intended them to be constitutional. And that's easy in this case, because there is nothing that says that the Court has the right to get rid of precedent. As a matter of fact, since the Court is continually talking and citing Auto Equity Sales, it obviously clearly draws a distinction between decisional law, which the Court is required to follow, and its rules.

THE COURT: Only lower courts. Only the lower courts are required to follow decisional law.

MR. SCHMIER: Yes, that's true. But they create a very interesting situation where the Court is required to follow decisional law, without being able to know what it is.

THE COURT: No, but if -- well, if there's no precedent on point, then you have the same right of review that anybody else has. And if someone else had their day in court and managed to get a reversal based upon a principle of law, then you have the same right to make the same argument to the Court of Appeal and have the Court of Appeal either decide in your favor or disagree.

MR. SCHMIER: This would be justice by the handicapped system. The idea is that we make it even, even if it isn't fair. This isn't my argument, Your Honor. This is the argument in the Chief Justice's panel to review the selective prospectivity. They there, too, suggest that no one, even those who argue for the retention of Rule 977, can state any way that it's constitutional.

THE COURT: All right.

MR. BLAKE: Well, I am not sure that's true. The Supreme Court considered that panel through court and decided on this system. And that's the system that must apply throughout the California judiciary.

THE COURT: Tentative ruling is adopted. Thank you, very much, Counsel.

MR. BLAKE: Thank you.

THE COURT: Anybody else, both parties present on any line on the second half of the calendar? If not, we will be in recess until 10:30.

(Whereupon, the proceedings were adjourned.)


I, Joseph Hayden Vickstein, an official reporter of the Superior Court of the State of California, in and for the City and County of San Francisco, do hereby certify:

That the foregoing transcript, as reduced to transcript by computer under my direction and control to the best of my ability, is a full, true and correct computer transcription of the shorthand notes taken as such reporter of the proceedings in the above-entitled matter.


Joseph Hayden Vickstein, CSR #4780