Kenneth J. Schmier, Esq. (State Bar No. 62666)

Attorney at Law

1475 Powell Street, Suite 201

Emeryville, CA 94608

(510) 652-6086 (telephone)

(510) 652-0929 (facsimile)

 

Plaintiff/Petitioner In Pro Per

 

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

CITY AND COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION

KENNETH J. SCHMIER,

 

Plaintiff/Petitioner,

 

v.

 

SUPREME COURT OF CALIFORNIA, CALIFORNIA COURTS OF APPEAL, and CALIFORNIA JUDICIAL COUNCIL,

 

Defendants/Respondents.

_________________________________________

)

)

)

)

)

)

)

)

)

)

)

)

Case No.

 

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 

Plaintiff/Petitioner KENNETH J. SCHMIER alleges as follows:

1. Plaintiff/Petitioner KENNETH J. SCHMIER is a citizen of the United States of America, a resident of the County of San Francisco in the State of California, a taxpayer, a businessman, a member of the State Bar of the State of California who practices primarily in the area of constitutional law and business law, and practices before the courts of the State of California.

2. The judicial power of the State of California is vested in the Defendant/Respondent SUPREME COURT OF CALIFORNIA, the Defendant/Respondent CALIFORNIA COURTS OF APPEAL, as well as various trial courts, pursuant to Article VI, Section 1 of the Constitution of the State of California.

//

3. The SUPREME COURT OF CALIFORNIA (hereafter "SUPREME COURT") exercises the ostensible authority to determine whether an opinion shall be published or not published pursuant to Rules 976(c)(2) and 978(b) of the California Rules of Court. The SUPREME COURT also exercises the ostensible authority to determine whether or not an opinion of the CALIFORNIA COURTS OF APPEAL may be cited in California courts by ordering such opinion published or not published. (See Rule 977(d) of the California Rules of Court.) The SUPREME COURT also exercises the ostensible authority to order an opinion depublished. (See Rule 979(c) of the California Rules of Court.) The SUPREME COURT has refused numerous requests that it change the substance and implementation of these policies and practices in general, and has in numerous specific cases refused the request of party litigants, and others, to permit the publication and/or citation of relevant CALIFORNIA COURTS OF APPEAL decisions, or has refused to withdraw orders of depublication.

4. Defendant/Respondent CALIFORNIA COURTS OF APPEAL (hereafter "COURTS OF APPEAL") is an intermediate appellate court in the State of California to whom appeals from the Superior Courts of the State of California are brought as a matter of right. The COURTS OF APPEAL initially determine which of its opinions will or will not be published, ostensibly pursuant to Rule 976(c)(1) of the California Rules of Court. The COURTS OF APPEAL has refused numerous requests that it publish specific opinions and/or render those same decision as citable authority according to the doctrine of stare decisis. The COURTS OF APPEAL has also prohibited citation of or reliance upon "unpublished" opinions in ostensible reliance on Rule 977.

5. Defendant/Respondent CALIFORNIA JUDICIAL COUNCIL (hereafter "JUDICIAL COUNCIL") is a commission provided for in Section 6 of Article VI of the California Constitution and in Califonria Government Code 68701, et seq. The JUDICIAL COUNCIL is responsible for the adoption of rules for court administration, practice and procedure, which are not inconsistent with

statute. The JUDICIAL COUNCIL is also responsible for setting the direction and providing the leadership for improving the quality and advancing the consistent, independent, impartial and accessible administration of justice, pursuant to Rule 1001(2) of the California Rules of Court.

6. The JUDICIAL COUNCIL is specifically charged in its Mission Statement to "interpret and apply the law consistently, impartially, and independently to protect the rights and liberties guaranteed by the Constitutions of California and the United States," pursuant to Rule 1001 of the California Rules of Court. The JUDICIAL COUNCIL has continued to enact and promulgate the California Rules of Court respecting the publication and citation of the appellate decisions even though those rules obstruct the same "rights and liberties guaranteed by the Constitutions of California and the United States" which the JUDICIAL COUNCIL is charged to protect.

7. Effective October 1, 2001, Defendants/Respondents began publishing all decisions of the COURTS OF APPEALS to the public over the Internet, and popular legal search engines utilized by lawyers and the general public began indexing and re-publishing those opinions. Nevertheless, Defendants/Respondents maintain that opinions which are not certified as "published" remain "unpublished," whether or not such opinions are in fact published over the Internet, and maintain that such opinions may not be cited and have no precedential effect pursuant to Rules 976 through 979 of the California Rules of Court. Therefore, although all opinions of the COURTS OF APPEAL are now published for the general public over the Internet, no litigant may cite these "unpublished" opinions, no matter how relevant to a pending case or controversy, without threat of sanction, except as narrowly permitted by Rule 977(b) of the California Rules of Court.

8. Plaintiff/Petitioner KENNETH J. SCHMIER is counsel of record for plaintiff Michael Schmier in an action entitled Michael Schmier v. Supreme Court of California, et al., San Francisco Superior Court No. 995232, Court of Appeal, First Appellate District No. AO85177. Appearing before a panel of the COURTS OF APPEAL, First Appellate District, at the oral argument

of the appeal of a trial court order granting a demurrer, KENNETH J. SCHMIER sought and was denied permission to cite unpublished decisions of the COURTS OF APPEAL relevant to an issue directly before the panel. The failure of the court to consider unpublished opinions of the appellate courts materially affected the outcome of the litigation.

9. In the subsequent attorneys fees motion in the same action, currently pending before the COURTS OF APPEAL, under action number AO94408, Plaintiff/Petitioner KENNETH J. SCHMIER, as counsel for Michael K. Schmier, cited an unpublished opinion of the COURTS OF APPEAL in briefing before the COURTS OF APPEAL, and it is likely to become necessary for Plaintiff to cite it and other unpublished cases in further argument in order to establish a rational, reasoned basis to prevail in the appeal.

10. Pursuant to Rule 977 of the California Rules of Court, Plaintiff/Petitioner KENNETH J. SCHMIER is threatened with sanctions for exercise of his right of free speech before the courts of California, i.e., citing and discussing the particular content of a relevant unpublished opinion.

11. Moreover, pursuant to Rule 977, the panel of the COURTS OF APPEAL before which the appeal is pending may not consider the unpublished authority regardless of its relevance. In order to fully evaluate the attorneys fees motion brought before it by Plaintiff/Petition Kenneth J. Schmier, acting as counsel of record for Michael K. Schmier, and reach a just result, the COURTS OF APPEAL must recognize, rely upon, and/or cite unpublished cases in order to reach a decision favorable to Michael K. Schmier.

12. In the published opinion in Michael Schmier v. Supreme Court of California, et al., San Francisco Superior Court No. 995232, Court of Appeal, First Appellate District No. AO85177, 77 Cal.App.4th 703, the appellate court panel construed Rules 976 through 979 to mandate publication of appellate opinions which create new law. The court also construed Rule 977 to mean

nothing more than that unpublished opinions may not be cited as precedent, thereby still allowing

 

their citation to advise courts that an appellate court of California has previously considered and determined an issue of law in relation to a set of facts in a particular way, and allowing any court to rely upon such reasoning.

13. As a result of the manner in which the COURTS OF APPEALS construed Rules 976 to 979 in their published opinion, Michael Schmier seeks attorneys fees on the grounds that this construction of the rules expanded the rights of the public of California and allowed the public to properly and prospectively use their law. In opposition to the attorneys fees motion, currently pending before the First District Court of Appeal, action number AO94408, the SUPREME COURT, the COURTS OF APPEAL, and the JUDICIAL COUNCIL -- through their counsel the Attorney General of the State of California -- maintain that the opinion in Michael Schmier v. Supreme Court of California, et al., San Francisco Superior Court No. 995232, Court of Appeal, First Appellate District No. AO85177, 77 Cal.App.4th 703, did not change the challenged rules or practices of Defendants/Respondents in any regard, notwithstanding the language of the published opinion in Michael Schmier v. Supreme Court of California, and continue to maintain that opinions which are not designated as "published" cannot be cited in any manner, even though all opinions, whether designated as "published" or "unpublished", are now published via the Internet.

14. Defendants herein also maintain -- in Rule 977 and at various websites -- warnings that citation of cases designated as "unpublished" constitutes a violation of the Rules of Court; that litigants are restricted from speaking or writing about such cases in their arguments to the courts of this state no matter how relevant; and that courts may not rely upon such prior "unpublished" cases.

15. Although "unpublished" opinions are now published to the general public via the Internet, Defendants/Respondents maintain that the citation and discussion of "unpublished" opinions remains prohibited. Rule 977 of the California Rules of Court (the "no-citation rule") -- as it is interpreted by Defendants/Respondents -- is an unconstitutional restraint on the content of speech

where it matters most, in our courts of law. The no-citation rule identifies particular content of speech, i.e., unpublished opinions of the COURTS OF APPEAL, or the law itself, and prohibits litigants from even mentioning this law in argument before the courts of California. Litigants are free to discuss any other subject matter they subjectively believe may benefit their position, even popular song lyrics or nursery rhymes as allegory. However, only one set of content is prohibited in the free discussion before the courts of California. Litigants may not inform a California court that an issue relevant to a matter before it has already been decided by a panel of the COURTS OF APPEAL, or that a rule to be applied has been distinguished, or even that certain conduct has been found not to be criminal, so long as such arguments emerged in opinions which are designated as "unpublished," whether or not the opinions were in fact published. An unpublished opinion may not be cited or discussed even if such opinion is unquestionably relevant, is unquestionably indistinguishable, or unquestionably represents a statement of new law. An unpublished opinion may not be cited even if it is squarely on point and no published opinion addresses the pertinent issues. Defendants/ Respondents interpret and apply Rule 977 in a manner which constitutes a restraint on the right of free speech guaranteed by the United States Constitution and the California Constitution.

16. Plaintiff/Petitioner KENNETH J. SCHMIER's right of free expression was violated by the very institution sworn and dedicated to protecting that freedom of expression and to maintaining a forum for rational debate as to issues of law when the panel of the COURTS OF APPEAL refused his request to cite relevant unpublished opinions. His freedom is further threatened as a result of his citation to an unpublished opinion in briefing before that same court in support of his client's position in the pending appeal of the attorneys fees motion, and as a result of his intent to offer further discussion of relevant unpublished opinions in oral argument. Regardless of the level of judicial expediency intended or obtained by the no-citation rule, it cannot be justified within the bounds of the United States Constitution or the California Constitution. Judicial expediency may be improved in a

 

manner which is not constitutionally onerous.

17. In addition to sharing the harm of the general public, Plaintiff/Petitioner herein has been specifically and directly harmed in a concrete and particularized manner, as alleged herein, and faces the further direct threat of imminent harm, as alleged herein. 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. By failing to permit litigants to freely cite to any relevant opinion regardless of whether it has been designated as "published," Defendants/ Respondents sever the mechanism by which the public can monitor the application of law necessary to govern itself and hold the courts accountable in subsequent litigation. Moreover, the rule of law cannot control the caprice of judges if actions of courts cannot be raised to a level that affects all similarly situated. 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 state 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. Compromise of the doctrine of stare decisis must end, and that doctrine must be restored.

18. Plaintiff/Petitioner brings this action as a citizen of the United States, the State of California, as an individual who has suffered a concrete and particularized injury as alleged herein, and as a Private Attorney General pursuant to California Code of Civil Procedure 1021.5 because Rule 977 is destructive of the rule of law and violates rights of free expression. By prohibiting free discussion of unpublished opinions in subsequent legal actions involving similar or identical issues, Defendants/Respondents SUPREME COURT and COURTS OF APPEAL were and are acting in their administrative and non-decisional capacities, and not as superior tribunals, and with the JUDICIAL COUNCIL, are without or in excess of their respective jurisdiction.

 

FIRST CAUSE OF ACTION

(Declaratory Relief)

19. Plaintiff/Petitioner incorporates herein by reference paragraphs 1 through 18, inclusive, as though fully set forth.

20. A justiciable controversy now exists between Plaintiff/Petitioner on the one hand and Defendants/Respondents on the other hand as to the parties' respective rights and obligations under

the Constitutions of the United States and California with respect to Rule 977 of the California Rules of Court and the extent to which this rule, both on its face and as applied, violates 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 Article I, 3 of the California Constitution and the just and proper operation of stare decisis. A declaration by this Court is proper at this time to interpret, establish, and enforce the parties' rights and obligation under the Constitutions of the United States and the State of California with respect to the challenged rule of the California Rules of Court.

WHEREFORE, Plaintiff/Petitioner requests relief as hereinafter provided.

SECOND CAUSE OF ACTION

(For Temporary Restraining Order, Preliminary and Permanent Injunctive Relief)

21. Plaintiff/Petitioner incorporates herein by reference paragraphs 1 through 20, inclusive, as though fully set forth.

22. A clear and present threat of effect and/or enforcement of Rule 977 of the California Rules of Court affecting Plaintiff/Petitioner now exists in that he may be sanctioned or subject to other disciplinary action for citing unpublished opinions of the COURTS OF APPEAL in a pending action before a panel of that Court, as alleged herein. Additionally, a fair and just resolution of such pending litigation necessarily requires a full discussion of relevant issues without a prior restraint on the content of Plaintiff/Petitioner's speech in support of his client's position, consistent with the right

of free expression, the right to petition the government for redress of grievances, and the doctrine of stare decisis. In the pending appeal of the attorneys fees motion in Michael Schmier v. Supreme Court of California, et al., San Francisco Superior Court No. 995232, Court of Appeal, First Appellate District No. AO94408, the manner in which that litigation achieved a significant benefit for the public -- thereby entitling Michael Schmier to the relief he seeks -- may only be established if Plaintiff/Petitioner KENNETH J. SCHMIER is permitted to cite and discuss unpublished opinions

free of sanction and with knowledge that such argument will at the very least be attended and considered. As alleged herein, Defendants/Respondents maintain that the published opinion in Michael Schmier v. Supreme Court of California, et al., San Francisco Superior Court No. 995232, Court of Appeal, First Appellate District No. AO85177, 77 Cal.App.4th 703, does not expand existing law by construing the rules to mandate publication of opinions that enunciate new rules. Instead, they argue, the published opinion in Schmier v. Supreme Court of California merely reports the manner in which the rules were already applied to publish such novel opinions. This position can only prevail if Defendants/Respondents shield themselves from the citation of prior "unpublished" decisions of the COURTS OF APPEAL by restricting the free expression of Plaintiff/Petitioner.

23. A clear and present threat now exists that Plaintiff/Petitioner is being and will be denied due process of law and free speech, as alleged herein. Defendants/Respondents currently take the position in multiple forums that they will refuse to consider unpublished opinions and will sanction attorneys who discuss such opinions regardless of relevance and regardless of whether

equivalent "published" authority even exists. Defendants/Respondents manipulate the application and adjudication of law through their unfettered discretion to decide which cases shall apply to future litigants and which cases shall not. This manipulation is achieved, and indeed is only possible, through the impermissible restriction of free expression before the courts of California, as alleged herein. The SUPREME COURT, the COURTS OF APPEAL, and the JUDICIAL COUNCIL permit

themselves to operate under the fiction that the law is equitably applied to all litigants only by preventing litigants from demonstrating when it is not. Defendants/Respondents intend to use this scheme to avoid liability for attorneys fees in Michael Schmier v. Supreme Court of California, et al., San Francisco Superior Court No. 995232, Court of Appeal, First Appellate District No. AO94408.

24. There is no harm which can possibly result to Defendants/Respondents if the requested immediate and preliminary injunctive relief is issued. The panel of the First Appellate District to whom the preliminary injunction would be directed would merely be required to permit Plaintiff/Petitioner to cite unpublished opinions in his argument without sanction, as alleged herein, and to consider such opinions in deciding the merits of his appeal. The substantive rights of Defendants/Respondents would simply be unaffected. On the other hand, Plaintiff/Petitioner will be irreparably harmed if the immediate and preliminary injunctive relief is not issued. The pending appeal in the COURTS OF APPEAL is the only appeal as a matter of right which may be had. Unless Plaintiff/Petitioner is permitted to cite unpublished opinions and to have those opinions acknowledged, considered, and explained in the context of any opinions which might be issued, he will never again be permitted as a matter of right to raise all relevant legal argument as to the merits of his position. The pending appeal of the attorneys fees motion, as alleged and described herein, will be the sole opportunity for Plaintiff/Petitioner KENNETH J. SCHMIER to obtain compensation for his work in Michael Schmier v. Supreme Court of California, et al.

25. Accordingly, Plaintiff/Petitioner seeks a temporary restraining order and/or preliminary injunction enjoining any enforcement or abidance upon Rule 977 in the matter of Michael Schmier v. Supreme Court of California, et al., San Francisco Superior Court No. 995232, Court of Appeal, First Appellate District No. AO94408, and a permanent injunction as to any enforcement of Rule 977 at any time in the future.

//

26. 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, to procure the enforcement of a public duty or to prohibit the named Defendants/Respondents

from continuing to act contrary to their public duty toward Plaintiff/Petitioner. As alleged herein, Plaintiff/Petitioner is 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.

27. In accordance with California Code of Civil Procedure 1103, Plaintiff/Petitioner has a right to, and a beneficial interest in this matter, and the issuance of the writ is necessary to contest the validity of Rule 977 of the California Rules of Court. No possible harm will result to Defendants/ Respondents from issuance of the writ, or other appropriate injunctive relief, requested herein. Plaintiff/Petitioner will suffer irreparable harm if the relief is not granted, and he has no other remedy.

28. Plaintiff/Petitioner has performed all conditions precedent to the filing of this petition by Plaintiff/Petitioner's timely filing thereof and shall provide such notification to the Defendants/Respondents as provided by California Code of Civil Procedure 1088 and 1088.5 and Rule 56 of the California Rules of Court.

WHEREFORE, Plaintiff/Petitioner requests injunctive relief as herein set forth.

PRAYER FOR RELIEF

Plaintiff/Petitioner prays for relief as follows:

1. A declaration that Rule 977 is an impermissible restraint on free speech guaranteed by the First Amendment to the United States Constitution and Article I, 3 of the California Constitution;

//

2. A preliminary injunction enjoining any enforcement or abidance upon Rule 977 in the matter of Michael Schmier v. Supreme Court of California, et al., San Francisco Superior Court No.

995232, Court of Appeal, First Appellate District No. AO94408;

3. That a Writ of Mandamus, or alternately a Writ of Prohibition, be issued requiring that the COURTS OF APPEAL and the SUPREME COURT shall consider and accept the citation of unpublished opinions in adjudication of cases in which Plaintiff/Petitioner appears as party or counsel of record, as alleged herein and that Plaintiff/Petitioner not be sanctioned for citing such unpublished opinions in violation of Rule 977 of the California Rules of Court;

4. For the issuance of a permanent injunction restraining and preventing Defendants/Respondents from in any way enforcing Rule 977 of the California Rules of Court;

5. For damages of one dollar ($1.00);

6. For costs of this proceeding, including but not limited to attorneys fees to the extent provided by law, and/or for such other and further relief as the Court deems just and proper.

 

KENNETH J. SCHMIER

Attorney at Law

 

 

 

Date: January 23, 2002 By:__________________________________

Kenneth J. Schmier

Plaintiff/Petitioner, Pro Per