California Rules of Court 976, 977 and 978 establish a system of selective publication of the opinions of the California Courts of Appeal. This system has no standard requiring publication of any opinion. Under this system, only a small percentage of appellate opinions are published in the California Official Reports. An opinion which is not so published may not be cited, or relied upon, as precedent by any court at any time in the future, even by the very court that rendered the opinion, except in matters relating to the same litigants.
In instances where a Court of Appeal designates its opinion Not To Be Published In The Official Reports and that opinion is thus not published in the Official Reports, and where that opinion both fails to follow established precedent and also uses novel rules of law to decide the case, does this system of selective publication violate the Equal Protection Clause of the United States Constitution?
CONSTITUTIONAL AND CALIFORNIA RULES OF COURT PROVISIONS INVOLVED
STATEMENT OF THE CASE
REASONS FOR GRANTING THE WRIT
Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450 (1962)
Bogacki v. Board of Supervisors, 5 Cal. 3d 771 (1971), cert. denied, 405 U.S. 1030 (1972)
County of Los Angeles v. Kling, 474 U.S. 936 (1985)
County of Marin v. Assessment Appeals Bd., 64 Cal. App. 3d 319 (1976)
Hansen v. Covell, 218 Cal. 622 (1933)
Healy v. Brewster, 59 Cal. 2d 455 (1963)
International Aerial Tramway Corp. v. Konrad Doppelmayr & Sohn, 70 Cal. 2d 400 (1969)
James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991)
New York Life Ins. Co. v. Hollender, 38 Cal. 2d 73 (1951)
People v. Davis, 147 Cal. 346 (1905) 13 Rubin v. Fuchs, 1 Cal. 3d 50 (1969)
Zak v. State Farm Mut. Liab. Ins. Co., 232 Cal. App. 2d 500 (1965)
U.S. Const. amend. XIV, §1 3, 12, 17, 20
28 U.S.C. §1257(a)
Cal. Civ. Code §1641
Cal. R. Ct. #'s 976, 976(b), 977, & 978
2 California Continuing Education of the Bar, California Civil Appellate Practice §22.6 (3d ed. 1997)
California Judicial Council, 1994 Annual Report 101
California Judicial Council, 1995 Annual Report 69
California Judicial Council, 1996 Annual Report 94
> J. Eisenberg, E. Horvitz & H. Weiner, California Practice Guide: Civil Appeals and Writs §13.18 (1996)
K. Llewellyn, The Common Law Tradition (1960)
Nick News (Channel 36, San Francisco Area, television rebroadcast, Dec. 27, 1997)
Preface, 5 U.S. [1 Cranch] (1801)
W. Reynolds & W. Richman, The Non Precedential Precedent--Limited Publication and No Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167 (1978)
W. Richman & W. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem For The Learned Hand Tradition, 81 Cornell L. Rev. 273 (1996)
K. Shuldberg, Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals, 85 Cal. L. Rev. 541 (1997)
R. Thompson, One Judge and No Judge Appellate Decisions Cal. St. B.J. (Nov./Dec. 1975)
Jeanne B. Schmier respectfully petitions for a writ of certiorari to review the judgment of the Court of Appeal of the State of California, Second Appellate District, Division Two.
The opinion of the Court of Appeal marked Not To Be Published In The Official Reports (App. 1a-14a), is unreported. Petitioner's Petition for Rehearing to the Court of Appeal, as well as a Petition for Rehearing by Respondents, was denied. App. 15a, 16a. Petitioner requested that the opinion be certified for publication in the Official Reports of the State of California, but the Court of Appeal recommended to the California Supreme Court that the request be denied. App. 17a-18a. The California Supreme Court subsequently denied Petitioner's Petition for Review of the Court of Appeal's judgment and her request for publication. App. 19a.
The opinion of the California Court of Appeal was filed on July 28, 1997. The Court of Appeal denied Petitioner's timely petition for rehearing on August 27, 1997. The California Supreme Court denied Petitioner's timely Petition for Review of the Court of Appeal's judgment and her request for publication of the Court of Appeal's judgment on October 15, 1997.
The jurisdiction of this Court is invoked under 28 U.S.C. §1257(a).
The question presented was preserved in the California courts at the earliest opportunity. It did not arise until Petitioner received the Court of Appeal's opinion. Petitioner thereupon sought rehearing, arguing that the Court of Appeal had erred for numerous reasons and that its decision resulted in fundamental unfairness and a violation of the equal protection provisions of both the California and United States Constitutions. Petitioner sought publication of the opinion pursuant to the California Rules of Court.
In her Petition for Review to the California Supreme Court, Petitioner likewise argued that the result and the Court of Appeal's non-publication of its opinion violated equal protection principles and guarantees.
The facts of the case are essentially undisputed as between Petitioner and Respondent but were misstated by the California Court of Appeal. Nevertheless, the facts as stated in that court's opinion described a matter that still should have been easy to resolve by application of basic principles of contract law.
In 1981, Petitioner purchased a parcel of land, Lot 10, in Los Angeles, and she later converted a small warehouse on it to a four-story office building. Under City of Los Angeles ordinances, she was required to provide twenty-eight parking spaces for use by the building's tenants in order to obtain a Certificate of Occupancy and rent the building for its intended purpose. Lot 10, with the office building, could not provide those spaces. In order to meet the City's requirements, she therefore purchased an additional lot, Lot 25, in order to accommodate her plans for parking.
Respondent David Jennings, however, wanted to develop property in the same area, and Petitioner's purchase of Lot 25 blocked his plans. Respondent therefore contacted Petitioner and proposed to her that they enter into an agreement under which she would delay construction of her planned parking structure on Lot 25. In return, he would attempt to find her an alternative lot for her parking that would meet the City's parking requirements for her Lot 10. If he were successful, the alternative lot would be exchanged for Petitioner's Lot 25. The alternative lot would then serve as Petitioner's parking site, and it would allow her to satisfy the City's requirements regarding the Certificate of Occupancy for her office building on Lot 10; at the same time, it would let Respondent have Lot 25 as a necessary and integral part of his proposed development.
In the meantime, Respondent suggested he would place parking restrictions on yet another lotLot 23. Respondent proposed that while he searched for the lot to be exchanged, he would burden his Lot 23 with parking covenants for Petitioner's benefit, and thus on an interim basis Respondent's Lot 23 and Petitioner's Lot 25 would provide the twenty-eight parking spaces necessary for Petitioner to use her building on Lot 10.
After discussions, Petitioner and Respondent entered into such an agreement. The Agreement generally specified that, if Respondent were successful, he could give notice to Petitioner that he was exercising his option to exchange, and Respondent and Petitioner would then exchange lots. At the end of the process, Respondent would have Lot 25 and could proceed with his development plans, the interim parking covenants imposed on Respondent's Lot 23 for Petitioner's benefit would be removed, and Petitioner would have the exchanged lot for her permanent parking. Respondent subsequently purchased Lot 26 as the proposed lot to be exchanged with Petitioner for her Lot 25, and he then gave notice to Petitioner exercising his option.
The Agreement specifiedand the trial court foundthat, as part of the exchange of lots, Respondent was required to deliver Lot 26 to Petitioner free and clear of encumbrances and structures and . . . graded and paved unless Petitioner waived the requirement for paving. Respondent did not do so. Lot 26 had a building located on it at the time Respondent gave his notice to Petitioner. Respondent conceded in his testimony that under the agreement . . . it was [his] obligation to remove that structure and that he was obliged to demolish the building. The trial court concluded, and it is undisputed, that Respondent never cleared the designated lot as required by the agreement. And, he never tendered a deed for Lot 26 to Petitioner.
For various reasons, Petitioner and Respondent then could not reach further agreement, and Respondent commenced this litigation. After a bench trial, the trial court held that Petitioner had breached the Agreement. Its ruling explicitly rested on its interpretation of a single sentence in the Agreement and it expressly refused to read the contract as a whole. As it orally explained, it interpreted this single sentence of the Agreement as compelling Petitioner to take the first affirmative act and to take steps to eliminate the parking covenants on Lot 23. The court rejected objections from Petitioner that this interpretation ignored the remainder of the Agreement and violated long-established California law that requires every contract to be read as a whole.
The Court of Appeal affirmed the judgment. App. 1a-14a. Petitions for rehearing by both Petitioner and Respondent were denied without opinion. App. 15a, 16a. The California Supreme Court denied Petitioner's Petition for Review, as well as her request that the Court of Appeal's opinion be published in the California Official Reports. App. 19a.
As already noted, the trial court concluded that Petitioner breached the option contract with Respondent based only on a single provision of the contract which it interpreted, while expressly refusing to consider the remainder of the contract, as compelling Petitioner unilaterally to take certain actions. When she did not do so, so reasoned the trial court, she breached the contract.
The California Court of Appeal never responded to Petitioner's arguments regarding the trial court's error in that conclusion. Endnote(1) Instead, its decision struck out into uncharted waters and relied on its own newly minted and announced theory of the case. Its opinion includes no citation supporting any authority to deviate from established law, and none has been found.
However, it is not the failure of the court to follow binding precedent, nor its creation of novel law, nor the resultant fundamental unfairness and unequal treatment of Petitioner that is the basis of this Petition. Rather, Petitioner objects that the court, by marking its opinion Not To Be Published In The Official Reports ruled that its changes to California law do not apply in all similar instances, but instead apply only to her.
First, the Court of Appeal affirmed the conclusion that Petitioner breached the contract, but only on its own completely new theory: that Petitioner had breached the Agreement by failing to timely open an escrow for the exchange of lots. App. 12a. This new theory was never raised by Respondent in the trial court, and the trial court not once mentioned it. The facts necessary to establish that theory were never argued to the trial court, they are conflicting and no findings on that theory were made. The theory was never raised in briefing to the Court of Appeal. It was advanced by the Court of Appeal itself for the first time only in its opinion.
This use by the Court of Appeal of an entirely new and untried theory of the case to conclude that Petitioner breached the Agreement between the parties violates the California Supreme Court's controlling admonition that
[t]he general rule that a legal theory may not be raised for the first time on appeal is to be stringently applied when the new theory depends on controverted factual questions whose relevance thereto was not made to appear at trial. (Bogacki v. Board of Supervisors, 5 Cal. 3d 771, 780 (1971), cert. denied, 405 U.S. 1030 (1972)) Endnote(2)
Moreover, the Court of Appeal's rationale also violated the equally well-established rule of both appellate review and fundamental fairness that
[w]here the record reflects that the trier of fact has not considered a theory under which the evidence is conflicting, the reviewing court cannot rely on that theory to sustain the action of the lower court. (Zak v. State Farm Mut. Liab. Ins. Co., 232 Cal. App. 2d 500, 506 (1965))
The California Supreme Court has repeatedly announced and emphasized that rule too. E.g., International Aerial Tramway Corp. v. Konrad Doppelmayr & Sohn, 70 Cal. 2d 400, 406 n.6 (1969); Healy v. Brewster, 59 Cal. 2d 455, 464-65 (1963).
The opinion of the Court of Appeal thus creates a new rule of law to the effect that any court, as it feels appropriate, may apply these rules, or not, at its own discretion. The rule must be new, because the court cited no precedent for its actionand none exists. But, despite making new law, the court's lack of publication ensures that no new precedent applicable to anyone else has been created.
The contours of this new rule, as well as the unfairness to Petitioner, are demonstrated by the Court of Appeal's inconsistent application of the Bogacki rule even within the four corners of the opinion itself. Its opinion declares that Petitioner failed to raise in the trial court the argument that other uses could be made of Lot 23 and that she therefore waived that argument. App. 13a. Thus, in that instance the court applied the rule against Petitioner that a theory not appropriately raised in the trial court is waived.
But, the Court of Appeal itself then turned around and violated and ignored that very same rule by affirming on a theory not raised in the trial court. In effect, the Court of Appeal turned this legal rule on and off like a light switch, with a doctrine that is designed to ensure fairness to all parties instead becoming dependent only upon the party affected.
Second, in Rubin v. Fuchs, 1 Cal. 3d 50 (1969), the California Supreme Court held that neither party can place the other in default unless he is fully able to perform or make a tender of the promised performance. Id. at 54-55. In this case, Respondent conceded that he was not able to perform since he never cleared the building on Lot 26, and he never tendered performance to Petitioner. Thus, Rubin should have governed disposition of the appeal. Nonetheless, notwithstanding Petitioner's reliance on Rubin, nowhere in the Court of Appeal's opinion is Rubin even mentioned, much less followed: the court simply ignored it.
Third, in Hansen v. Covell, 218 Cal. 622, 631 (1933), the California Supreme Court held that a plaintiff is entitled to pre-judgment interest only insofar as he or she has been damaged during the pre-judgment period. As the Court held, a party
is entitled to interest only on such amount of the use of which he has been deprived during the period of default [and] the court may properly allow interest only on the balance found to be due after deduction of such offsets and payments. The reason is that to that extent only has the plaintiff been damaged. (Id. at 631 (emphasis added))
The Court of Appeal's recitation of the facts properly recognizes that Respondent was not deprived of the use of Lot 23 during the pre-judgment period after Petitioner's supposed breach of the Agreement. But, even though it correctly recited the facts which compel the application of Hansen, the Court of Appeal completely ignored it. Notwithstanding Petitioner's reliance on it, Hansenlike Rubinwas ignored.
The Court of Appeal's opinion thus resulted in new or changed California procedural and contractual rules that were applied to Petitioner. Because of those new or changed rules, Petitioner sought publication of the opinion pursuant to Rule 978 of the California Rules of Court. Her purpose in seeking publication was to force the Court of Appeal and the California Supreme Court to decide Petitioner's appeal by the same standards those courts would have had to use were the opinion published. In that way, Petitioner sought to make the Court of Appeal accountable for failing to completely consider and justify its holdings under penalty of public criticism and responsibility for upheaval in California procedural and contractual law. In short, Petitioner sought to bring the discipline of the Equal Protection Clause on the appellate process. The effort would not have been necessary at any time prior to the adoption of Rule 977 in 1974.
The effort was in vain. The Court of Appeal recommended that the California Supreme Court deny the request. Petitioner subsequently sought discretionary California Supreme Court review of the Court of Appeal's unpublished opinion, but that request, as well as the request for publication, was denied.
That its opinion was unpublished conceals the Court of Appeal's sharp departure from and inconsistency with established law. But even more importantly, the lack of publication unconstitutionally deprived Petitioner of any meaningful chance of review by the California Supreme Court which could have corrected the errors, a chance which would otherwise have been much more likely if the opinion had been published as a new precedent.
The California Supreme Court long ago established that its purpose is to decide important legal questions and maintain statewide harmony and uniformity of decision. That Court's focus is thus not on correction of error by a Court of Appeal or protection of the rights of the parties in any specific case. People v. Davis, 147 Cal. 346 (1905). Accordingly, as one important California treatise has explained,
"If the court of appeal decision is unpublished, it has no precedential value by definition, and therefore the supreme court will usually deny the petition for review. . . . [I]t is nearly review-proof because it has no precedential value. (2 California Continuing Education of the Bar, California Civil Appellate Practice §22.6, at 960 (3d ed. 1997))
The Court of Appeal's determination that its opinion would not be published thus had several significant practical results. First, had the opinion been published, it would have been recognized as creating new rules applicable to commercial contracts: because of those rules, because of the opinion's effect on California commerce, and because it could then have been cited to other courts as precedent, the California Supreme Court could not have ignored it and review by that Court would have been much more likely.
Second, the Court of Appeal's non-publication order effectively shunted Petitioner onto a separate litigation track, branded her as a second-class litigant, and unconstitutionally deprived her of any realistic opportunity of persuading the California Supreme Court to address the error. The Court of Appeal's non-publication order thus classified Petitioner as a litigant whose further claims to the Supreme Court merited no further review.
Equally important, the unpublished opinion created new lawwhich applies only to this Petitioner and to no other person or entity in California. That is so because Rule 977 of the California Rules of Court prevents reliance on and citation of the opinion, except in very limited circumstances. Thus, the Court of Appeal's opinion resulted in new legal holdings, inconsistent with binding precedent, that applied only to Petitioner. Each of these results violates the fundamental equal protection principle that litigants in similar situations must be treated the same.
In his preface to his first volume of the United States Reports, Supreme Court Reporter William Cranch identified the special importance of publication of opinions that announce new rules of law, so that litigants can structure their affairs and seek to predict the outcome of possible litigation:
"Even in the same court, analogy of judgment cannot be maintained if its adjudications are suffered to be forgotten. . . . In a government which is emphatically styled a government of laws, the least possible range ought to be left for the discretion of the judge. Whatever tends to render the laws certain, equally tends to limit that discretion; and perhaps nothing conduces more to that object than the publication of reports. Every case decided is a check upon the judge. He cannot decide a similar case differently, without strong reasons, which, for his own justification, he will wish to make public. The avenues to corruption are thus obstructed, and the sources of litigation closed. (Preface, 5 U.S. [1 Cranch] (1801))
Justice Stevens has made similar, but more pointed, observations in terming unpublished decisions secret law that result in decisionmaking without the discipline and accountability that the preparation of [published] opinions requires. County of Los Angeles v. Kling, 474 U.S. 936, 937 (1985). As he noted:
"`In our law the opinion has in addition a central forward-looking function which reaches far beyond the cause in hand: the opinion has as one if not its major office to show how like cases are properly to be decided in the future. This also frequently casts its shadow before, and affects the deciding of the cause in hand. (If I cannot give a reason I should be willing to stand to, I must shrink from the very result which otherwise seems good.) Thus the opinion serves as a steadying factor which aides reckonability.' (Id. at 937 n.6 (Stevens, J., dissenting) (quoting K. Llewellyn, The Common Law Tradition 26 (1960), as quoted in W. Reynolds & W. Richman, The Non- Precedential PrecedentLimited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167, 1204 (1978)))Endnote(3)
Other respected writers have made similar points:
"When a  court completely denies public access to judicial opinions, it removes an important check on judicial activity from the legal system. Public availability of judicial opinions helps to hold judges accountable to society for the decisions they reach. Public scrutiny helps to maintain the integrity of the judicial system and assure that individual cases are fairly decided.
"Forcing judicial decisionmaking into the light of day helps not only to assure fairness in fact, but, perhaps as importantly, to promote the appearance of fairness. When a judge's reasoning in a particular case is open to public scrutiny, litigants may be less likely to believe that the decision was arbitrary or unfair. Therefore the public availability of  opinions promotes judicial accountability, which may also enhance public confidence in the legal system. (K. Shuldberg, Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals, 85 Cal. L. Rev. 541, 567 (1997) (footnote omitted))
Precedent, along with the doctrine of stare decisis, is the hallmark of our adjudicatory system: if justice is to be dispensed even-handedly, then, of course, similar cases must be decided similarly. Precedent and publication, as William Cranch declared, thus tends to render the laws certain. Preface, 5 U.S. (1 Cranch).
But, California Rules of Court 976-978 mandate that the rules applied by the Court of Appeal to determine this case apply to this case alone and also mandate, as a requirement of California law, that they never be brought to the Court of Appeals or any other court's attention again, even if the fact situation is exactly the same.Endnote(4)
And, equally importantly, the non-publication of the opinion necessarily means that the Court of Appeal itself is not even bound by the decision in the future. Because its own non-published decision cannot be cited back to it as precedent in the future, it can proceed as if this decision never existed and, indeed, reach precisely the contrary result the next day on the same set of facts in yet another unpublished decision, without realistic fear of review by any other court!
The California court system therefore made and applied rules only to this Petitioner and to no other person or entity. For all practical purposes, it developed an unique model of selective prospectivity that not only develops new rules of law, but then says that these new rules will apply only in this case and not to any other in the future. Doing so violates the Constitution's guarantee of equal protection:
"[S]elective prospectivity also breaches the principle that litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally. . . . `We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a new rule of constitutional law.' . . . For this reason, we abandoned the possibility of selective prospectivity in the criminal context in Griffith v. Kentucky, 479 U.S. 314, 328 . . . . Though Griffith was held not to dispose of the matter of civil retroactivity . . . selective prospectivity appears never to have been endorsed in the civil context. (James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 537-38 (1991) (emphasis added))
That Rules 976-978 of the California Rules of Court permit such a result ought to be sufficiently odious to merit review even were there no other consequences. But there are other consequences detailed in legions of critical law review articles.
For example, in their excellent overview of decay in the appellate court system Richman and Reynolds write:
"The costs of non-publication are not limited to reduced predictability, accountability, responsibility, and reviewability. It should come as no surprise that unpublished dispositions are also dreadful in quality. In a study conducted fifteen years ago, we found that twenty percent of unpublished opinions in nine of eleven circuits failed to satisfy a very undemanding definition of minimum standards, and that sixty percent of the opinions in three circuits failed to meet those standards. There is no reason to think that the situation has improved in the years since. It is no wonder, therefore, that former Chief Judge Markey of the Federal Circuit once told his Circuit Conference that unpublished decisions were `junk opinions.' One cannot help but ask, however, if the losing litigants thought of their claims as `junk,' or whether the definition of `junk' has changed over the years. (W. Richman & W. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem For The Learned Hand Tradition, 81 Cornell L. Rev. 273, 284 (1996))
Reflection upon Justice Stevens' observations of the importance to justice that requires courts to give reasons they are willing to stand to in deciding cases (County of Los Angeles, 474 U.S. at 937 n.6), demonstrates why California's No-Publication, No Citation rules so devastate the quality of appellate justice. That appellate justices should be free to determine even before writing an opinion that the opinion will or will not be marked Not To Be Published In The Official Reports and thereby effectively determine the quality of appellate review particular litigants are to receive should itself be a sufficiently odious offense to the Equal Protection Clause to require Supreme Court review.
Likewise, that appellate courts may continue to wrongly decide similar issues in similar low profile cases for years because their errors are not brought to public attention ought to be sufficiently odious to warrant Supreme Court review. Endnote(5)
Perhaps the most bizarre and odious consequence of California's No Publication-No Citation rule is that the California appellate courts will allow citation of a first year law student's note in a law review as authority, while prohibitingindeed at the threat of sanctionslawyers who dare to cite as precedent a reputedly well considered decision resolving an actual case or controversy involving an identical or comparable situation, arrived at by three appellate justices, each appointed by the Governor of California after review by the State Bar of California of his or her intellect, integrity and judicial ability or potential, and who have reputedly each spent sufficient time to thoroughly come to understand all aspects of the issues presented in that similar case.
Justice Robert S. Thompson, former Associate Justice of the California Court of Appeal and former President of the Conference of California Judges has noted:
"An imperfectly reasoned and generally result-oriented opinion may be buried in a non-publication grave. A panel may avoid public heat or appointing authority disapprobation by interring an opinion of real precedential value. More frequently, a panel may make a mistake, and fail to publish an opinion. Selective publication makes the work product of judges less visible. (R. Thompson, One Judge and No Judge Appellate Decisions Cal. St. B.J. (Nov./Dec. 1975))
This non-publication process of the California Rules of Court, along with the results of it that Justice Thompson has noted, has eliminated many of the many equal protection rights the stare decisis system guarantees to litigants in American courts. In fact, as is implicit in Justice Thompson's remarks, Rule 976(b) of the California Rules of Court does not compel that any opinion of the California Courts of Appeal ever be published under any circumstance, even when the content may be of great novelty or importance: publication or non-publication is wholly up to the Court of Appeal, subject to possible Supreme Court contrary decision.
The departure from the centuries old doctrine of stare decisis implicit in the non-publication rules has resulted in second-rate decisions and erroneous writing and thinking, as it did in this case. It has permitted California's appellate courts, without realistic fear of California Supreme Court review, to decide cases on an ad hoc basis without regard to precedent.
Worse yet, it portends corruption and tyranny. When Rules 976-978 were first adopted twenty-four years ago, very few California decisions were marked Not To Be Published In The Official Reports. But now, the practice of the California Courts of Appeal is close to uniform non-publication. This transition has been so gradual that very few lawyers, let alone members of the general public, have any idea this destruction of the appellate system of law has taken place. Despite uniform and voluminous criticism in scholarly legal periodicals since the adoption of Rule 977 in 1974, the public press has never taken any note of this desecration of our most important legal right.Endnote(6)
For example, the Division of the Court of Appeal that authored the opinion at issue in this Petition has consistently had a rate of publication among the lowest of California's eighteen Divisions or Districts of California's intermediate appellate courts. For example, in 1994-95 (the most recent statistics available), the Division published only 7% of its civil appealsthe second lowest of any appellate court in Californiaand only 4% of its criminal appeals. California Judicial Council, 1996 Annual Report 94. Endnote(7) Yet, as already noted, for a civil appellant in the California judicial system, receipt of such an unpublished opinion virtually ensures immunity for that opinion, however badly written or error ridden, from review by the California Supreme Court. Endnote(8)
Along with the destruction of stare decisis has gone any systemic capability for society to correct bad court policy because that bad policy is buried in decisions not generally made available to the public and which no one has reason to read. There remains no incentive for any law professor, law student, academic, industry representative, legislator, governor, journalist or other citizen to take interest in the vast majority of matters adjudicated by the Court of Appeal because these matters are marked Not To Be Published In The Official Reports and cannot possibly be used as authority to affect anyone. The appellate court that authored the opinion at issue in this Petition uses non-publication in 930 out of every 1000 civil appeals to shield itself from further review by anyone. Respect for justice compels questions: How much error is perpetuated by this practice? Is any corruption left unrevealed?
If a court is not willing to stand to a decision as valid precedent for all, that decision should not be made or enforceable.
The Court should take particular note of the opportunity this case presents to restore the discipline of stare decisis, without concerns about recognizing decades of unpublished opinions. By recognizing that it is only present litigants who are damaged by No Publication-No Citation rules, and who thereby are the only persons or entities with standing to raise the issue, the Court can limit its conclusions only to enjoining the enforcement of cases where res judicata has not yet attached to the final judgment. The Court thus can correct this problem without unleashing a torrent of past unpublished opinions as precedent.
The Court should therefore grant the petition for a writ of certiorari, and hold that California Rules of Court 976, 977 and 978 have denied Petitioner the equal protection of the law. The Court should either (1) enjoin the California judiciary from enforcing the judgment in this case unless and until the decision is published, thus guaranteeing it precedential value; or (2) remand the matter to the California Court of Appeal for reconsideration and preparation of a decision worthy of publication. The Court should act in order that the constitutional rights of Petitioner, and countless others who are subjected to arbitrary holdings marked Not To Be Published In The Official Reports made in jurisdictions with No Citation rules, be protected.
The petition for a writ of certiorari should be granted.
DATED: January 12, 1998.
Kenneth J. Schmier
Counsel of Record
1475 Powell Street, Suite 201
Emeryville, CA 94608
Telephone: (510) 652-6086
Attorney for Petitioner
Jeanne B. Schmier
(1) Indeed, it is difficult to understand how the Court of Appeal could have upheld the trial court, since its reasoning violated a rule of California law that could not possibly be more well-established: in fact, the rule on which Petitioner relied for her appeal was first codified in 1872, and has remained unchanged since then. Cal. Civ. Code §1641 (The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other). California case law has never varied from that principle. E.g., New York Life Ins. Co. v. Hollender, 38 Cal. 2d 73, 81 (1951) (the entire contract is to be construed together for the purpose of giving force and effect to each clause); County of Marin v. Assessment Appeals Bd., 64 Cal. App. 3d 319, 325 (1976) (the contract must be construed as a whole). Return to the text.
(2) In California, an inferior court acts in excess of jurisdiction if it fails to follow binding Supreme Court precedent: Supreme Court authority must be followed by all the state courts of California. Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450, 455 (1962).Return to the text.
(3) As Justice Ginsberg also recently pointed out to the youth of our nation on the children's broadcast Nick News: We would have chaos and not the rule of law if each judge in the land did simply what he or she thought was right instead of what the law requires. Nick News (Channel 36, San Francisco Area, television rebroadcast, Dec. 27, 1997).Return to the text.
(4) In Petitioner's view, it is irrelevant to this proceeding whether the law as announced in the Court of Appeal's opinion is in error. This Petition posits only that the law announced in the opinion is substantially different in material respects from all other judicially declared California law.
It is the possibility of propagation of bad or different law that makes stare decisis and the Equal Protection Clause the effective protection of the individual in the court system. It is only because the effects of stare decisis and the Equal Protection Clause have been emasculated by Rules 976, 977 and 978 that the California Supreme Court could ignore Petitioner's request for review since, but for those rules, this decision would have the effect of undermining California contractual law. However, having denied Petitioner the equal protection of the law by refusing to publish the case, and refusing to allow it to be cited as precedent to its inferior courts, the California Supreme Court has freed itself to ignore Petitioner's valid pleas for justice as of too little consequence to the community to merit further examination. By non-publication, the California Supreme Court has assured the community that it will never be affected by these rules that nonetheless govern Petitioner's affairs. Therefore the community need not examine or debate these rules because the rules will never apply to anyone but Petitioner. There is no complaint from the public at large, and Petitioner's cries can easily be dismissed as sour grapes.
The California Supreme Court has therefore created a judicial system which appears to be operating perfectly and without complaint. But the truth is quite different. Like the portrait of Dorian Gray, the true condition of the quality of the justice system in California continues to decay while the public image is maintained falsely. By summarily cutting off any possibility of propagation of the holdings made in this decision through the device of non-publication, the Supreme Court has cut off all public interest and debate regarding these rules. Such a direct defeat of constitutional purpose surely must raise a federal question which this Court, in its most important role of protector of the constitutional rights of the individual from interference by government expediency, should feel compelled to review. That no court has yet carefully considered the impact of the combined unpublished opinion and no citation policies on equal protection in this singularly important context should serve to heighten the need for review to a virtual necessity. Return to the text.
(5) The father of the author of this Petition was a prosecuting attorney when a surgery patient died as a result of having been injected with an anesthetic that was erroneously mixed with ether rather than distilled water. This was tragic but accidental. What made the situation so much more tragic was that the hospital pathologist sought to protect the reputation of the hospital and its doctors, and euphemistically reported the cause of death as therapeutic misadventure. As a result of the pathologist's failure to accurately and completely document his conclusions, three more persons died the next day. California Courts replicate this situation every day. But for the unpublished opinion, the California Rules of Court, a whole host of academics, attorneys, judges, industry representatives, politicians, and journalists would serve to keep judges, and justice on track, and spare future litigants injustice and expense born of avoidable error. In this way, America's most valuable asset, the expectation of justice, would be preserved and protected with the help of the entire community. Return to the text.
(6) How did this offensive on the constitutional rights of litigants advance without detection? Because it was instituted without public debate by the governmental branch charged with being the protector of those rights. A departure from such a fundamental doctrine as stare decisis should have required, at the very least, the consent of the People's representatives, the Legislature and the Governor. Had such consent been requested, the public debate would then have determined if the public actually approved of such a vast increase in the discretionary power of the judiciary. It would also have involved discussion of the issue whether stare decisis should have been abandoned without any other effective system of quality control for the appellate courts first being instituted.Return to the text.
(7) In 1993-94, the civil figure was 6%, the lowest in the State. California Judicial Council, 1995 Annual Report 69. In 1992-93, the figure was 10%, the second lowest. California Judicial Council, 1994 Annual Report 101.Return to the text.
(8) The California Judicial Council does not publish separate statistics of the rate at which the California Supreme Court grants review of published and unpublished Court of Appeal opinions. However, it is common California doctrine that the California Supreme Court very rarely reviews unpublished opinions. As one California treatise explains,
"Although statistics should not necessarily dissuade parties from petitioning for review, the odds are that most petitions will not be granted. Indeed, the court's willingness to grant review in civil cases seems to be on a declining course (since the late 1980's, significantly fewer civil appeals were granted review than in the preceding decade).
"Moreover, there is little likelihood this declining pattern will reverse itself in upcoming years . . . . Instead of granting review, the supreme court is increasingly invoking its prerogative to depublish court of appeal opinions. . . . And, with the court's increasing focus on publication status, the chances of obtaining review seem even slimmer if the court of appeal's decision was unpublished. (J. Eisenberg, E. Horvitz & H. Weiner, California Practice Guide: Civil Appeals and Writs §13.18, at 13-4 (1996) (citations omitted)) Return to the text.