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
|
Plaintiff/Petitioner, v. SUPREME COURT OF CALIFORNIA, CALIFORNIA COURTS OF
APPEAL, and CALIFORNIA JUDICIAL COUNCIL, Defendants/Respondents. _________________________________________ |
) ) ) ) ) ) ) ) ) ) ) ) |
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