ever a couple of legal crackpots - disgruntled litigants - were tilting
at windmills only they could see, those brother lawyers from Emeryville,
Kenneth and Michael Schmier, might be the ones. Since they lost a real
estate case in a 1997 unpublished opinion of the Court of Appeal, the
Schmiers have been crusading against unpublished opinions, their efforts
so dogged as to verge on the comical.
Michael ran for state
attorney general in 1998 on the single issue of unpublished opinions,
but he was late in submitting his statement for the voter handbook so no
one knew what his issue was. Undeterred, Michael ran last month against
Dianne Feinstein for the Democratic nomination for U.S. Senate,
collecting 5 percent of the vote.
At a 1998 "Meet
Your Judges Night" in Marin County, Ken submitted written questions
about nonpublication, none of which went to the judges. When the
moderator declared the meeting over, Ken stood and asked his question -
or tried to, as he was dragged off to jail by sheriff's deputies.
Handed this beautiful
lawsuit for false arrest and denial of free speech, Ken wouldn't bring
it: "I don't want my neighbors' money," he said. He settled
for a half-hour hearing on nonpublication before the Marin Board of
Michael and Ken have
sued the California Supreme Court, challenging nonpublication. They lost
before Judge David A. Garcia in San Francisco Superior Court. They lost
again, Feb. 28 , in an opinion issued - and published - by the 1st
District Court of Appeal in Schmier
v. Supreme Court, 2000 D.A.R. 2137.
And yet, crazy as their
campaign may seem, the Schmiers are making progress. The recent Court of
Appeal opinion stands out both for the major point it concedes and for
the weakness of its defense of nonpublication. Meanwhile Assemblyman Lou
Papan, D-Millbrae, has written AB2404, which would require that all
appellate opinions be available to the public and be citable as legal
precedents. A hearing will take place April 25 before the Assembly
Judiciary Committee. What's more, the Schmiers are right.
appellate opinions began in the 1970s as a response to the enormous
growth in judicial caseloads and the resulting demands on paper, shelf
space, lawyers' and judges' time and money. Today, 93 percent of
California Court of Appeal opinions are unpublished.
The system rests both on
Court Rule 976, stating that no court of appeal opinion "may be
published in the Official Reports" unless it meets one of four
stated criteria (or unless the Supreme Court orders it published), and
on Court Rule 977, stating that an unpublished opinion "shall not
be cited" by a court or party in any other case.
When these rules first
issued, nonpublication and noncitation were nearly synonymous. If a case
didn't appear in the official reports, it pretty much wasn't available,
so of course no one could cite it. Today, the term
"unpublished" is largely a misnomer, with unpublished cases
often freely available online and elsewhere.
So the issue now isn't
nonpublication under Rule 976; courts could make all their opinions
available and still publish in the official reports only those they
considered important. The issue is the citation ban of Rule 977. If
attorneys think an unpublished opinion will help their client, should
the law bar them from telling the court about it?
At least six arguments
would say no.
The noncitation rule
lends itself to unequal application of law. A court's unpublished
decision need not apply to a subsequent case presenting the same facts.
Indeed, the court in the second case can't even hear about the first
The public is likely to
suspect that worse things are going on. Even if publicly available,
court opinions not citable to other courts are in some sense secret and
therefore suspect. They rob the judicial system of visibility,
accountability, legitimacy and respect.
The claim that
California courts publish all their "important" opinions
passes belief. Publication rates vary widely among courts of appeal -
from 7 percent to 27 percent in civil cases - and many unpublished
opinions prove important enough for state Supreme Court review.
comprise what one judge has called "a vast underground body of
law." That law is more accessible now than it used to be, thanks to
computers, but it still gives an unfair advantage to institutional
litigants who have the resources to collect and use the unpublished
opinions, request publication or nonpublication in selected cases and
otherwise shape the subterranean law to their own benefit.
Most fundamentally, the
noncitation rule flouts the Anglo-American principle that the law is
what the courts have decided. Judicial power derives its legitimacy from
deciding cases. When judges say they alone can determine the lawmaking
effect of their decisions, they're claiming a power more legislative
than judicial. Barring an attorney from telling the court about a prior
court decision may deny due process.
It also may infringe
free speech. As Judge Richard S. Arnold of the 8th U.S. Circuit Court of
Appeals has observed, "If we decided a case directly on point
yesterday, lawyers may not even remind us of this fact. The bar is
Against these arguments,
the Schmier court
produced mostly a parade of straw men. The court claimed that in the
Schmiers' view, the court of appeal in criminal cases "would be
required to publish all Wende opinions,"
which typically state only that the court's independent review has
revealed no arguable issue. In fact, no such requirement would exist:
Courts could still decide which opinions to publish under Rule 976, and
the typical Wende opinion,
stating no facts, would encumber no one's search for precedent.
After a litany of other
cases that don't deserve publication, the Schmier court
conceded that all opinions are publicly available, anyway, so that
nonpublication in the official reports "means nothing more than
that they cannot be cited as precedent."
unpublished cases be citable? The best argument is that the additional
research would overburden attorneys and judges, making it harder and
costlier, in the words of Chief Justice Ronald George, "to separate
the wheat from the chaff." One answer is that at least six, and
apparently eight, of the 13 federal circuits - up from just two in 1994
- now allow citation of unpublished opinions.
Some say it's
"disfavored," some say the opinions may be cited not for
"precedent" but only for "persuasive" value.
However, six to eight circuits allow the citations, with notice and a
copy of the opinion to the opposing party. The 9th Circuit, not one of
the six, is thinking about joining them.
The Schmier court
argued further that nonpublication is necessary to support, of all
things, the California Supreme Court's practice of depublishing court of
appeal opinions it doesn't like. But the high court still could pursue
that dubious (and diminishing) practice. Depublished opinions would be
citable, but so would the depublication order to discredit them.
The biggest news in Schmier is
what the Schmiers won. They relied on James
B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), where the
U.S. Supreme Court barred prospective overruling. The high court held
that, when a court has applied a rule of law to the litigants in one
case, it must apply that rule to all others not barred by res judicata
or procedural requirements. No problem, the Schmier court
California complies with
this principle because the publication criteria of Rule 976(b)
"establish comprehensive standards for determining publication of
Court of Appeal cases, particularly specifying that an opinion
announcing a new rule of law or modifying an existing rule be
The pertinent portion of
Rule 976(b) reads, "No opinion of a Court of Appeal ... may be
published in the Official Reports unless the opinion ... establishes a
new rule of law, applies an existing rule to a set of facts
significantly different from those stated in published opinions, or
modifies, or criticizes with reasons given, an existing rule."
This language on its
face does not require the publication of opinions establishing a new
rule of law. It says only that opinions may not be published unless they
meet one of the rule's criteria . The Schmier court,
by its description of the rule as "specifying" that certain
opinions "be" published, has converted a condition into a
requirement. The court apparently requires (in a published opinion!) the
publication of an opinion establishing a new rule of law or modifying an
existing rule. Further, since the rule's relevant language is the same,
this conclusion presumably stands as well for an opinion that applies an
existing rule to a different set of facts, and the same for opinions
invoking one of the other criteria of Rule 976(b).
The court now apparently
must grant requests for publication made to the court of appeal or the
supreme court if one of the Rule 976(b) criteria is met. Under
compulsion of James
B. Beam, law has replaced discretion.
The fact remains that,
even if Schmier has
changed the law regarding which opinions the court of appeal will
publish, courts should not have the sole prerogative to determine which
of their opinions may be cited. They should not be able to decree, as
they now have, that more than 90 percent of California Court of Appeal
decisions are not law. To lift this cloud from our judicial system,
AB2404 deserves support, as do the Schmiers in their not-so-crazy
R. Barnett is a professor of law at University of California
School of Law, Boalt Hall.