MICHAEL SCHMIER,individually
and for all persons similarly
situated in the State of
California, and as a Private
Attorney General,
Plaintiff and Appellant



Defendants and Respondents.
NO. A015877

San Francisco City and County Superior Court No. 995232
The Honorable David A. Garcia, Judge


Attorney General
Senior Assistant Attorney General
Supervising Deputy Attorney General
Deputy Attorney General
State Bar No. 51885
455 Golden Gate Avenue, Room 11000
San Francisco, CA 94102
Telephone: (415) 703-5506
Fax: (415) 703-5480
Attorneys for Respondent


This appeal is from the refusal of the superior court below to enjoin the higher courts from following rules 976(b)(c), 977, 978, and 979 of the California Rules of Court ("publication rules").

In summary, Rule 976 provides that, while all opinions of the Supreme Court are to be published, opinions of the Court of Appeal and the appellate departments are to be published only if a majority of the court certifies that the opinion meets the criteria for publication, in that it establishes a new rule of law, applies an existing rule to a significantly different facts, modifies or criticizes an existing rule, resolves or creates an apparent conflict in the law, or makes a significant contribution to the legal literature. Rule 977 provides that no opinion that is not certified for publication or that is ordered depublished may be cited or relied by a court or a party. Rule 978 provides the procedure by which any person may request the appellate court, or the Supreme Court, to order an opinion published. Rule 979 provides the procedure by which any person may request the appellate court, or the Supreme Court, to order an opinion depublished.

Appellant asks is Court to strike down the entire selective publication system, requiring that every decision of the Court of Appeal and every decision of the superior court appellate departments be published as official reports. The establishment of the publication rules is based on constitutional and statutory authority. Contrary to Appellant's assertions, these rules do not violate the doctrine of stare decisis and do not violate Appellant's constitutional rights. For all these reasons, this appeal must be denied.


Appellant's Petition for Temporary Injunction was denied after hearing in open court on June 19, 1998, by the Honorable Raymond D. Williamson, Judge of the Superior Court. (CT, 213.) A demurrer on behalf of the Supreme Court and the Judicial Council was filed simultaneously with the Opposition to the Motion for Temporary Injunction. The demurrer was sustained without leave to amend on July 27, 1998, by the Honorable David A. Garcia, Judge of the Superior Court. (CT, 246-247.) Respondents agree that the notice of appeal (CT, 253-54) was filed timely and that the decision below is a final judgment.


Appellant does not seek to have any particular opinion published or depublished. Appellant seeks to strike down the entire selective publication system.




A. Standard of Review; Rules of Court Have the Force of Law To The Extent They Are Not Inconsistent With Statute

Article VI, section 6 of the California Constitution empowers the Judicial Council to adopt rules for "court administration, practice, and procedure" to the extent not inconsistent with statute. These rules have the force of law to the extent they are not inconsistent with statute. (California Court Reporters Assn. v. Judicial Council of California (1995) 39 Cal.App.4th 15, 21-22.) To be shown consistent or inconsistent with statute, the rule is tested against the statutory scheme that the rule was intended to implement. (California Court Reporters Assn., supra, at 25-26.) See also, People v. Hall (1994) 8 Cal.4th 950.)

B. The Supreme Court and the Judicial Council Are Authorized To Provide for Publication Rules By The California Constitution and Statute

There is clear constitutional and statutory authority for the Supreme Court to establish rules 976, 977, 978 and 979 of the California Rules of Court.[1] / The publication rules that appellant would invalidate are constitutional enactments of the Judicial Council and are a valid exercise of the Supreme Court's supervision of the appellate process. They are grounded in California Constitution, article VI, section 14. Appellant fails to cite any precedent for the proposition that the publication rules are invalid. Article VI, section 14, of the California Constitution, provides that:

"The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person." (Emphasis added.)

In addition to the Supreme Court's independent constitutional authority to make rules, there is a statutory basis for the publication rules. The Legislature has codified the court's authority to provide for the publication of decisions and, impliedly, to select which decisions are to stand as decisional law in Government Code section 68902. That statute provides, in its entirety, as follows:

"Such opinions of the Supreme Court, of the courts of appeal, and of the appellate departments of the superior courts as the Supreme Court may deem expedient shall be published in the official reports. The reports shall be published under the general supervision of the Supreme Court." (Stats.1967, c. 172, p. 1270, section 2; emphasis added.)

The Judicial Council[2] / enacted the publication rules to implement this constitutional and statutory mandate. The Court of Appeal has previously examined and upheld the authority of the California Supreme Court to depublish opinion. In People v. Superior Court (Clark) (1994) 22 Cal.App.4th 1541, the Court of Appeal issued a writ of mandate to reinstate special circumstances allegations in a murder prosecution. Defendants alleged that the law of special circumstances had been rendered uncertain after the simultaneous passage of Propositions 114 and 115, followed by a Court of Appeal opinion that was depublished. Affirming the validity of the publication rules, the Clark court summarized operation of the rules[3] /:

"In short, while an appellate court may certify (i.e., approve) an opinion for publication, the ultimate decision as to whether the opinion shall be published rests with the Supreme Court." (People v. Superior Court (Clark), supra, 22 Cal.App.4th 1541, 1547-48; emphasis added.)

In In re Williams (1977) 69 Cal.App.3d 840, 842, the court recognized the validity of Rule 976 by noting that the precedential value of an earlier opinion had "died aborning when the Supreme Court inexplicably ordered the [earlier] opinion not to be published," but the Williams court did not question the validity of rule 976.

In People v. Valenzuela, (1978) 86 Cal.App.3d 427. In the Valenzuela case, the court upheld the validity of Rule 977. Justice Jefferson's dissent, arriving at the same result as the majority discussed the publication rules. His comprehensive discussion of these rules provides helpful guidance to this Court.[4] / Specifically, Justice Jefferson addressed the validity of rule 977:

"Contrary to the view of the majority, I consider the issue of the validity of rule 977 of the California Rules of Court of sufficient importance to make it appropriate for me to discuss the question."
"In my view, rule 977 is a valid rule. I consider the majority opinion of the appellate department to the contrary, to be erroneous and untenable. The appellate department opinion sets forth two reasons for its view of invalidity: (1) that rule 977 violates basic concepts of the doctrine of stare decisis; and (2) that rule 977 is contrary to the superior command of Civil Code section 22.2. Neither of these reasons is persuasive." (People v. Valenzuela, supra, 86 Cal.App.3d 427, 439.)

After brief discussion of the Supreme Court's authority under the California Constitution and statute to govern the publication of opinions, Justice Jefferson noted:

"It is to be noted that neither section 14 of article VI of the California Constitution nor Government Code section 68902 contains any reference to the legal effect to be given to the opinions ordered published or nonpublished by the Supreme Court. The question presented is what is the authority for the Supreme Court to order the noncitability by court or party of nonpublished opinions?"
"It does not require extended discussion to reach the conclusion that rule 977 is required, or at least expedient, to make rule 976 effective. I need refer to only one of a number of reasons advanced to support the conclusion that the "noncite rule" (rule 977) is needed to make effective the selective publication rule (rule 976). Permitting the citation of unpublished opinions would create fundamental problems of unfairness between parties and their counsel who possess unlimited funds for research and those with very limited budgets. The unfairness' argument is set forth in an opinion by a federal appellate court dealing with the status of its own unreported memorandum decisions. We prefer that they [unreported memorandum decisions] not be cited to us for an additional reason: since they are unpublished and generally unavailable to the bar, access to them is unequal and depends upon chance rather than research. . . . .' [Citation.]"
"However, the fact that rule 977 serves as an effective aid to the usefulness of rule 976 does not tell us the legal basis for the Supreme Court's authority and power to promulgate rule 977. I find the Supreme Court's power and authority to create rule 977 in two sources. One is that of the constitutional and statutory provisions previously referred to as authorizing specifically the selective publication rule (rule 976): section 14 of article VI of the California Constitution and Government Code section 68902. We are not required to give statutes and constitutional provisions literal interpretation when to do so will nullify legislative intent. [Citation.] It is obvious that the legislative intent undergirding the constitutional and statutory provisions referred to was to provide for the orderly development of the decisional law with due consideration to factors such as the expense, unfairness to many litigants, and chaos in precedent research, if all appellate opinions were required to be published, or, if those ordered to be nonpublished would have the same effect and precedent value as those which were published. . . . ."
. . . .
"Rule 977 is also a valid exercise of the authority and power of the Supreme Court by virtue of the principle that the Supreme Court possesses inherent supervisory powers over the courts of this state.' . . . . The noncite rule--rule 977--is clearly a rule fashioned 'in the interest of the sound administration of justice' as is the exclusionary evidentiary rule fashioned in Coleman." (People v. Valenzuela, supra, 86 Cal.App.3d 427, 440-442; emphasis added.)

C. The Publication Rules Do Not Conflict With The Doctrine of Stare Decisis

Appellant erroneously contends that the Supreme Court's publication rules violate the doctrine of stare decisis (AOB, 28-29, 31, 40). As explained by Justice Jefferson, the doctrine of stare decisis does not require publication of every decision.

"The doctrine of stare decisis is not mandated by any constitutional principle but is a rule of decisional law founded upon public policy in the interests of justice. As a rule of decisional law that carries out a sound public policy in the interest of sound administration of justice, the Supreme Court may pick and choose as to what opinions shall be given precedential value under the stare decisis doctrine."
"As stated in Jones, supra, 465 F.2d 1091, 1094: `We concede, of course, that any decision is by definition a precedent, . . . But . . . we think it reasonable to refuse to treat them [unreported memorandum decisions] as precedent within the meaning of the rule of stare decisis.' And in Helvering v. Hallock (1940) 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604, our nation's highest court explained the policy limits of the stare decisis principle by observing: `We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.'" (People v. Valenzuela, supra, 86 Cal.App.3d 427, 442; emphasis added.)

D. The Federal Courts Have Upheld California's Publication Rules

In State Farm Mut. Auto. Ins. Co. v. Davis (9th Cir. 1991) 937 F.2d 1415, 1420, the Ninth Circuit Court of Appeals considered California's rule 977. Applying California insurance law, State Farm asked the court to infer that the State Supreme Court would not find insurance coverage because California precedent had relied heavily on a depublished decision. In rejecting this argument, the Federal Court relied on the authority of the California Supreme Court to depublish opinions:

"The California Constitution, article VI, sec. 14, authorizes the supreme court to order depublication of an opinion ordered published by the court of appeals. See also California Rules of Court 976(c)(2) (Supp.1990). . . ."
"California's depublication procedure does not send clear signals. as former Justice Joseph R. Grodin pointed out, `"[D]epublication" does not mean that the supreme court necessarily disapproves of the underpinnings of the decision. Nor does it mean that the court considers the outcome to be wrong, just as a straight denial of hearing does not necessarily carry with it the court's imprimatur. [¶] Depublication is most frequently used when the court considers the result to be correct, but regards a portion of the reasoning to be wrong and misleading.' Grodin, The Depublication Practice of the California Supreme Court, 72 Calif.L.Rev. 514, 522 (1984). Since we have no way of knowing which, if either, part of the court of appeal's decision the supreme court felt was defectively reasoned, we hold that the depublication of Munoz should not be considered in determining California law on the coverage issue. In so doing we treat a depublished decision the same way we would treat a decision that the court of appeal initially declined to publish. See Calif.Ct.R. 977(a) (Supp.1990) (non-published opinions `shall not be cited or relied on by a court or a party in any other action or proceeding . . .')." (State Farm v. Davis, supra, 937 F.2d 1415, 1420, fn 4.)

The United States District Court for the Southern District of California also considered the California publication rules in Travelers Indem. of Ill. Ins. Co. of N. America, 886 F.Supp 1520, 1526 (1995). The district court held that, under rule 977(a), a Court of Appeal opinion for which the state Supreme Court has granted a petition for review has no precedential value unless the Supreme Court orders otherwise, even though the opinion actually is published in the advance sheets.

E. The Federal Courts Utilize a Similar Selective Publication System.

The selective publication of appellate opinions is used by the federal circuit courts as well as the California appellate courts. Since 1976, every United States Court of Appeals has implemented rules for selective publication.[5] / The Ninth Circuit's system for selective publication is parallel to California's system: "opinions" are published and "memoranda" are not published. (See Ninth Circuit Rules 36-1 et seq.) Like California's rule 977, the Ninth Circuit's rule 36-3 provides that dispositions other than opinions and orders designated by the court for publication are not precedent and may not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

F. Due Process Does Not Require Publication of Every Opinion of Every Appellate Tribunal

Appellant asserts that the publication rules "run afoul of equal protection and due process by creating a system of selective prospectivity wherein the courts create new rules of law which apply to one case and one case only." (AOB, 13.) Appellant further contends that, "In contrast, nothing guides or restrains the use of selective prospectivity." (AOB, 16.) Contrary to appellant's assertions, California's publication rules provide reasonable and uniform procedures for the orderly development of the state's case law under the direction of the Court of Appeal and the Supreme Court.



A. Courts Must Defer To Higher Judicial Authority

This Court and the Superior Court below lack subject matter jurisdiction within the meaning of Code of Civil Procedure sections 430.10, subdivision (a) and 187, because only the Supreme Court is vested with the responsibility and the power to regulate the publication of appellate decisions. -The Supreme Court that possesses "inherent supervisory powers over the courts of this state." (People v. Coleman, supra, 13 Cal.3d 867.) Government Code section 68902 expressly provides that appellate opinions "shall be published under the general supervision of the Supreme Court." (Emphasis added.)

Appellant cannot satisfy the statutory requirements for issuance of an injunction. First, Code of Civil Procedure Code section 526, subsection (b)(6) provides that an injunction will not lie, "[t]o prevent the exercise of a public or private office, in a lawful manner, by the person in possession." Respondents are clearly in possession of public offices, and have the authority to establish and implement the publication rules. Second, Civil Code section 526, subdivision 2, requires a showing of "waste, great or irreparable injury." Appellant cannot show great or irreparable injury because he does not seek to have any opinion published or depublished. In Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, the court held that the lower courts must accept the law as declared by higher courts and cannot overrule decisions of higher courts. Appellant's reliance on Conover v. Hall (1974) 11 C.3d 842, 850 (AOB, 46) is misplaced. Conover and its progeny found statutes invalid in the context of specific persons seeking a specific relief. In the instant case, there is no particular factual situation requiring relief.

B. It Would Be Impractical and Unfair to Some Litigants to Publish Every Decision

It is not practical to include every appellate disposition in the official reports. First, decisions of the State's appellate courts cannot readily be published. In fiscal year 1994-1995, only 8% of the opinions of the Court of Appeal were published. (Judicial Council of California, Report to the Governor and the Legislature, 1996, p. 94; CT, 166.) In fiscal year 1996-1997, seven percent (7%) of majority opinions written by the Court of Appeal were published. (Judicial Council of California, Court Statistics Report, Annual Report, Volume 1, 1998, p. 29.) If every opinion of the Court of Appeal were published, the decisional law of the State would expand to an unmanageable volume of material. Second, publication of all decisions provide for the publication of significant decisions. Under rule 976, the appellate courts certify for publication all of their opinions that establish a new rule of law, apply existing law to significantly different facts, modify or criticize exiting rules of law, resolve or create apparent conflicts in the law, or make significant contribution to the legal literature. (Rule 976, subd. (a); rule 976.1, subd. (a); rule 978, subd. (a).)

Appellant's reliance on the Report of The Chief Justice's California Advisory Committee for an Effective Publication Rule is unique as the report supports California's selective publication system. (CT, 150; report at CT, 15-80). The majority of that committee recognized the impracticalities of publishing all appellate opinions:

"The committee's initial conclusion is that a return to full publication in official format is impractical because of the great volume of court of appeal opinions." (Report, supra, June 1, 1979, p. 2. at CT, 17.)
. . . .
"Despite these problems, the volume of appellate decisions precludes a return to full publication of all opinions in the current format of the official reports. It is estimated that publication of the entire output of the California Courts of Appeal would increase the number of volumes of official reports issued each year from about 12 to more than 60. [Citation.] The costs of such a flood of books, in terms of purchasing the books themselves, finding library space to house them, and taking the time to research and read cases, would be prohibitive. Full publication in the present official format is simply impractical." (Report, supra, June 1, 1979, p. 3; emphasis added. CT, 18.)



Appellant failed to allege any particularized harm that would result from continued application of the publication rules. Therefore, no actual case or controversy exists and appellant is not entitled to equitable relief. (See Code Civ. Proc., §420.10, subd. (b)).

Appellant does not allege that any particular person or entity will suffer any identifiable harm as a result of the depublication of any particular case. There is, therefore, no actual case or controversy before this Court. In essence, appellant asks this Court to reweigh the merits of California's depublication rules and order the Supreme Court and the Judicial Council to change these rules.

Like the federal "case or controversy" requirement, California courts limit their jurisdiction to resolving an actual dispute between parties as stated in Neary v. Regents of University of California (1992) 3 Cal.4th 273, 281-282, "The primary purpose of the public judiciary is `to afford a forum for the settlement of litigable matters between disputing parties.'" This Court should not allow appellant's speculative, abstract, and hypothetical appeal to draw it into rewriting the Rules of Court established by the Judicial Council and the Supreme Court.



The publication rules limit the use of non-published opinions in subsequent judicial proceedings. Rule 977, subdivision (a) provides only that unpublished opinions "shall not be cited or relied on by a court or a party in any other action or proceeding except. . . ."

The Constitutional guarantees of freedom of speech and redress of grievances are not violated by the selective publication system. Non-published opinions can be obtained from the court files, the parties, or Lexis and Westlaw databases. Non-published opinions can be cited in matters where the doctrines of law of the case, res judicata, or collateral estoppel apply (Rule 977(b)). The rules do not preclude a person from adopting the reasoning, language, or citable authority found in a non-published opinion. The only limitation is that the opinion itself may not be cited as precedent.


The validity of the publication rules is established by constitutional and statutory authority. Pursuant to these rules, the Supreme Court has the discretion to determine which decisions should be published based on specific criteria. For all of the above-stated reasons, this appeal should be denied.

Dated: September 23, 1999

Attorney General
Senior Assistant Attorney General
Supervising Deputy Attorney General
Deputy Attorney General

Attorneys for Respondent


  1. The rules that plaintiff seeks to enjoin make up Title Three, Division III, California Rules of Court, except Rule 976.1 [Partial publication], which was not mentioned in the proceedings below or in appellant's brief on appeal. Return to Text

  2. The Judicial Council is the rulemaking body of the judiciary and exercises the authority granted by article VI, section 6 of the Constitution, which provides: "To improve the administration of justice the council shall survey judicial business and make recommendations annually to the Governor and the Legislature, adopt rules for court administration, practice and procedure, not inconsistent with statute, and perform other functions prescribed by statute." (Emphasis added.) Return to Text

  3. After Clark, Rule 977(a) was amended in 1997 to clarify that it is permissible to cite an opinion once it has been certified by the Court of Appeal for publication. Return to Text

  4. Although in his papers below appellant dismissed Justice Jefferson's opinion as "mere dicta" (CT 202, ll. 2-4) and correctly noted that the Valenzuela majority "studiously avoided the issue," appellant does not mention the case in his opening brief. Return to Text

  5. See, Lauren K. Robel, The Myth of the Disposable Opinion: Unpublished Opinions and Government Litigants in the United States Courts of Appeals (1989) 87 Mich L. Rev, 940, 940. Return to Text

  6. The intermediate appellate courts include the Court of Appeal and the appellate departments of the Superior Courts. ?? 16