KENNETH J. SCHMIER, ESQ. (Bar No. 62666)

Attorney at Law

1475 Powell Street, Suite 201

Emeryville, CA 94608

(510) 652-6086 (telephone)

(510) 652-0929 (facsimile)

Attorney for Plaintiff,

MICHAEL SCHMIER

 

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

 

 

MICHAEL SCHMIER,

Plaintiff/Petitioner,

v.

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT and JUDICIAL COUNCIL OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT,

Defendants/Respondents.

)

)

)

)

)

)

)

)

)

)

)

)

)

Case No. C 00 4076 VRW

COMPLAINT FOR INJUNCTIVE RELIEF/PETITION FOR WRIT OF MANDATE OR PROHIBITION IN THE ALTERNATIVE OR OTHER APPROPRIATE RELIEF

Plaintiff/Petitioner MICHAEL SCHMIER alleges as follows:

1. Plaintiff/Petitioner MICHAEL SCHMIER is a citizen of the United States of American, a resident of the County of Alameda in the State of California, a taxpayer, a member of the State Bar of the State of California who practices in the area of employment law and regularly practices before the United States District Courts in California, and a person beneficially interested in the issuance of the writ herein sought because he has a clear, present, and substantial right to the performance of Defendants/Respondents' duties, and is personally concerned that Defendants/Respondents perform their duties under the law. Plaintiff/Petitioner is interested as a citizen and as a duly licensed attorney at law in having the laws executed and the duties in question being enforced.

2. The object in question is one of public right and the object of the request for issuance of a Writ of Mandate, or in the alternative, a Writ of Prohibition, or in the alternate other appropriate relief, including but not limited to Declaratory Relief, to procure the enforcement of a public duty or to prohibit the named Defendants/Respondents from continuing to act contrary to their public duty. This is necessary to promote the policy of guaranteeing to citizens the opportunity to ensure that no governmental body impairs or defeats the Constitution of the United States, the purpose of legislation establishing a public right, relevant statutory enactments, or the common law.

3. The judicial power of the United States is vested in the United States Supreme Court and inferior courts, including Defendant/Respondent the United States Court of Appeals for the Ninth Circuit, pursuant to Article III Section 1 of the Constitution of the United States. Defendant/Respondent the Judicial Council of the United States Court of Appeals for the Ninth Circuit was established pursuant to 28 U.S.C. 332.

4. Jurisdiction of this Court over the subject matter of this action is proper pursuant to Article III Section 2 of the United States Constitution, 28 U.S.C. 1331, 28 U.S.C. 1346(a)(2), and/or 5 U.S.C. 702.

5. Defendants/Respondents are empowered to establish rules for the conduct of court business pursuant to the authority of 28 U.S.C. 2071, et seq. Defendants/Respondents have enacted Circuit Rule 36-3, which provides:

CITATION OF UNPUBLISHED DISPOSITIONS OR ORDERS

(a) Not Precedent: Unpublished dispositions and orders of this Court are not binding precedent, except when relevant under the doctrine of law of the case, res judicata, and collateral estoppel.

(b) Citation: Unpublished dispositions and orders of this Court may not be cited to or by the courts of this circuit, except in the following circumstances.

(i) They may be cited to this Court or to or by any other courts in this circuit when relevant under the doctrine of law of the case, res judicata, or collateral estoppel.

(ii) They may be cited to this Court or by any other courts in this circuit for factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorneys' fees, or the existence of a related case.

(iii) They may be cited to this Court in a request to publish a disposition or order made pursuant to Circuit Rule 36-4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, disposition, or orders.

(c) Attach Copy: A copy of any cited unpublished disposition or order must be attached to the document in which it is cited, as an appendix.

The Circuit Advisory Committee Note to Rule 36-3 indicates that the rule "has been adopted for a limited 30-month period, beginning July 1, 2000 and ending December 31, 2002." Unless the Court votes to make the rule permanent, the rule will automatically expire on December 31, 2002, and the former version of Circuit Rule 36-3 will be reinstated. Former Circuit Rule 36-3 provides:

Any disposition that is not an opinion or an order designated for publication under Circuit Rule 36-5 shall not be regarded as precedent and shall not be cited to or by this Court or any district court of the Ninth Circuit either in briefs, oral argument, opinions, memoranda, or orders, except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Effective January 1, 1997.

Circuit Rule 36-4 provides:

REQUEST FOR PUBLICATION

Publication of any unpublished disposition may be requested by letter addressed to the Clerk, stating concisely the reasons for publication. Such a request will not be entertained unless received within 60 days of the issuance of this Court's disposition. A copy of the request for publication must be served on the parties to the case. The parties will have 10 days from the date of service to notify the Court of any objections they may have to the publication of the disposition. If such a request is granted, the unpublished disposition will be redesignated an opinion.

6. This action is for issuance of a Writ of Mandate, or in the alternative of Prohibition, or in the alternative, other appropriate relief, including declaratory relief, to allow the citation of any disposition or order, whether published or unpublished, by or to the Ninth Circuit or any district court

in the circuit, and to provide that any disposition or order, whether published or unpublished, shall have the full force of precedent under law and that all dispositions of the courts of this circuit be published, either in book form with official reports of court opinions or online.

7. Circuit Rule 36-3, currently effective July 31, 2000 through December 31, 2002, prior Circuit Rule 36-3, effective July 31, 1997, which will again become the Circuit Rule regarding citation and precedential value of unpublished dispositions and order upon expiration of current Rule 36-3, and Circuit Rule 36-4 violate the following: (1) Article III of the United States Constitution; (2) separation of powers; (3) equal protection and due process guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution; (4) the freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment to the United States Constitution; and (5) the doctrine of stare decisis. See James B. Beam Distilling Co. v. Georgia, 510 U.S. 529, 544, 111 S.Ct. 2439, Anastasoff v. United States of America, 223 F.3d 898 (8th Cir. 2000). The Circuit Rule complained of herein impermissibly creates restraints on the ability of litigants and counsel to express themselves freely and fully in this society by limiting the content of speech before the very tribunals that are constitutionally charged with protecting free speech. Moreover, every judicial decision in this Circuit is an interpretation and declaration of a general principle or rule of law which is authoritative to the extent necessary for each particular decision and which should be applied in subsequent decisions to similarly situated parties. To the extent Circuit Rule 36-3 allows the courts of this circuit to avoid the precedential effect of prior decisions and Circuit Rule 36-4 operates to allow publication of only certain dispositions of the court, the law is applied inequitably and unequally, and the judicial power is expanded beyond the constitutional bounds of Article III of the United States Constitution. Regardless of the level of judicial expediency intended or obtained by the Rule, it cannot be justified within the bounds of the United States Constitution; judicial expediency may be obtained through less intrusive means.

8. Local rules which are constitutionally infirm, among other reasons recognized in law, are invalid. See Frazier v. Heebe, 107 S.Ct. 2607, 2610, 482 U.S. 641 (1987), Whitehouse v. United States District Court, 53 F.3d 1349, 1355 (1st Cir. 1995). The proper method for mounting a facial

challenge to the validity of such a local rule is through an action in the district court for declaratory and/or injunctive relief. Whitehouse, 53 F.3d at 1353. Plaintiff/Petitioner has no adequate remedy in the ordinary course of law, other than the relief sought in this petition, in that there is no other means to challenge the validity of Circuit Rule 36-3. The violations of the United States Constitution complained of herein are continuing daily, and are causing grievous harm to numerous litigants, including Plaintiff/Petitioner herein, and the harm caused is not compensable in damages as it deprives litigants of the fundamental right to be heard. The continued constitutional violations by Defendants/Respondents are causing irreparable damage to the operation of our system of law and to the body politic that relies on our courts of law to dispense justice fairly, equally, and uniformly to all litigants. The people cannot know the manner in which their enacted laws are being applied if they are unaware of the manner in which the courts of the circuit are enforcing those laws. By failing to publish all dispositions and by failing to give each disposition precedential value, Defendants/ Respondents sever the mechanism by which the public can monitor the application of law. It is essential in preserving our democracy and our representative form of government that the separation of powers be maintained and that the courts of this circuit uphold the right of the people to have justice by the application of known laws that are fairly, equally, consistently, and uniformly applied under the doctrine of stare decisis.

WHEREFORE, Plaintiff/Petitioner prays:

1. That a Writ of Mandamus, or alternately a Writ of Prohibition, be issued requiring the publication of all disposition of the courts of this circuit where res judicata has not yet attached to the final judgment;

2. That a Writ of Mandamus, or alternately a Writ of Prohibition, be issued requiring that every disposition of the courts of this circuit shall have precedential effect;

3. For the issuance of a permanent injunction restraining and preventing Defendants/Respondents from in any way enforcing Circuit Rules 36-3 and 36-4;

4. Alternately, for other appropriate relief, including a declaration of Plaintiff/Petitioners' rights guaranteed by the United States Constitution to allow the citation of any and all dispositions of the courts of this circuit as legal precedent;

5. For fees and costs of this proceeding, and/or for such other and further relief as the Court deems just and proper.

KENNETH J. SCHMIER, ESQ.

Attorney at Law

 

 

Date: November 1, 2000 By:__________________________________

Kenneth Schmier, Esq.

Counsel of Record for Plaintiff/Petitioner

MICHAEL SCHMIER