Judge Dodges Issue Over Publication Rules

Pamela A. MacLean, Staff Writer
San Francisco Daily Journal
Tuesday, March 27, 2001

A federal judge finds no standing for plaintiffs in their long quest to enable citation of unpublished opinions.

A federal judge declined Monday to be drawn into a head-on confrontation over the ticklish question of whether the 9th U.S. Circuit Court of Appeals rules barring citation of unpublished rulings pass constitutional muster.

U.S. District Judge Vaughn Walker dismissed for lack of standing the suit by attorney Michael Schmier of Emeryville challenging appellate court Rules 36-3 and 36-4, which forbid citation of court rulings designated as "unpublished opinions."

Walker said Schmier had not cited an "unpublished opinion and been injured by the circuit rules that prohibit him from doing so."

Schmier's attorney-brother decried the ruling. "In my view, the court engages in the dance of tyranny avoiding facing the serious question of whether the judiciary will allow itself to be held accountable," Ken Schmier, an attorney and brother of Michael Schmier, said of the decision in Schmier v. US. Court of Appeals, C00-4076VRW.

Appellate judges regularly dispose of a vast number of cases by designating them unpublished, stripping them of potential precedential value. Published opinions, by contrust, generally provide in-depth legal analysis and may be cited by lawyers in other legally similar situations.

Last year, the 9th Cirruit agreed to allow citation of unpublished memos in requests for publication to demonstrate conflicts with published opinions. The circuit conducted a limited review between January and March 2000 in which it encouraged lawyers to point out unpublished memorandum dispositions that coriflict with publdshed circuit opinions.

The 8th Circuit kicked up a storm of controversy last year when a panel held that forbidding citation of unpublished nilings is unconstitutional. But that decision, Anastasoff v. U.S., 223 F.3d 898. has since been vacated and is being reconsidered by the entire 8th Circuit court.

Walker also found the prospect of a district judge ruling on the legality of rules issued by a higher court "dubious" but declined to reach that subject-matter jurisdiction question.

Law professor Stephen Barnett of the University of California's Boalt Hall said, "I am on the side of the Schmiers. I think unpublished rulings should be citable. I think it is as matter of due process and the First Amendment."

He said if a lawyer thinks there is a case that might help his client he "ought to be able to tell the court about that case."

Barnett will be part of a panel debate on the topic with 9th Circtiit Judge Alex Kozinski at the Bar Association of San Francisco on April 25.

The Schmiers have established a Web site on the issue, www.nonpublication.com.