Schmier filed Schmier III (see complaint for declaratory and injunctive relief against the Supreme Court of California) to determine whether fifth amendment freedom of speech allows citation of relevant unpublished opinions. This case was dismissed without leave to amend. On December 16, 2003,the California Court of Appeal affirmed the trial courtís dismissal of Ken Schmierís attempt to enjoin the use of rule 977 on the grounds that it is unconstitutional . In an UNPUBLISHED case it held that free speech as circumscribed in the courtroom is not infringed by the nocitation rule. Apparently the appellate court justifies not publishing the decision despite its extraordinary holding by maintaining that it had decided the fifth amendment issue in Schmier I. We see no such holding in Schmier I. Read Schmier III here: Schmier v. Supreme Court of California 1st Dist Ct of Appeal A101206 12/16/03 Unpublished.
Please also see the decision in Schmier v. Supreme Court (2002) 96 Cal.App.4th 873 (also known as Schmier II), referred to in the above decision. Schmier II held that Schmier I notwithstanding, no court is required to publish any appellate decision under any circumstance including where it makes a new rule of law or interprets a statute or constitutional provision. It also held that Schmier I notwithstanding, the no-citation rule does not permit citation of unpublished decisions for "persuasive" rather than binding authority. .eliminating any possibility that publication rules r
Finally, please see a discussion of Schmier v. Supreme Court, the
very first case presented in the textbook used for the basic course in most
Schmier v. Supreme Court of California was brought to strike down the entire selective publication system of the California Judiciary. Because the Supreme Courts of both California and the United States have repeatedly refused to answer the legitimate questions posed in appeals of cases decided under the veil of secrecy and withheld from the ambit of stare decisis, this case was brought as a suit naming the Supreme Court of California, the Appellate Court of California and the Judicial Council of California as defendants. The Supreme Court is subject to the jurisdiction of the Superior Court because it made Rules 976-979 in its administrative capacity, not in a case or controversy decided in its judicial capacity. San Francisco Superior Judge Raymond Williamson issued an order to show cause.
The purpose of the suit was to force the court system to answer many charges of serious violations of constitutional rights of the people. The courts have never publicly stated answers to these charges - right or wrong. Rather they have gone to great lengths to avoid addressing the questions at all. ( The Appellate Department of the Superior Court of Los Angeles declared the rules unconstitutional in 1978, but the appellate court removed the case without appeal by any party, vacated the decision, and decided the matter on other grounds, thereby erasing the case.) The Supreme Court appeared and was defended by the Attorney General. The Attorney General was not asked by the court to answer the charges. Rather, Judge Garcia dismissed the suit without explanation.
Thr First Appellate District heard oral argument on January 20, 2000. Appellant requested permission to demonstrate harm by citing egregious examples of unpublished opinions. Justice Barbara Jones denied the request, saying, "you may not cite unpublished opinions." The court's decision is "result orientated," and is powerfully corrosive of the Rule of Law. It does not address numerous arguments made by appellant, especially the impact of the no-citation rule upon freedom of speech and the right to petition government.
We recommend reading the transcripts of the oral arguments both on the preliminary injunction and the demurrer. The briefs at all levels are also quite illuminating.
Here is the complete record.