IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION FIVE

 

 

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

v.

SUPREME COURT OF CALIFORNIA,
CALIFORNIA COURTS OF APPEAL,
and CALIFORNIA JUDICIAL COUNCIL,

Defendants and Respondents. 		)
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) 		NO. A015877

(San Francisco
Superior Court
No. 995232





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APPELLANT'S REPLY BRIEF

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KENNETH J. SCHMIER, SBN 62666
JEANNE M. FAHEY, SBN 179114
PATRICE M. BRYMNER, SBN 184275
Attorneys at Law
1475 Powell Street
Emeryville, California 94608
(510)652-6086

INTRODUCTION

      Respondent fails, in its brief, to elucidate even one compelling reason for the continued maintenance of the non-publication/non-citation rules. Respondent cannot explain how, in a democratic system such as ours, with its insistence upon open government and with its reliance on stare decisis as a fundamental guarantee of equal protection, such a scheme of "selective prospectivity" can continue to exist. Instead, in its mere fifteen pages in response, respondent essentially asserts that "the rules are the rules because they are the rules."

In reply, appellant asserts these essential truths:

     Appellant believes that we cannot exhort the goodness inherent in providing litigants with access to "the system" while at the same time depriving them of the tools to realize their ostensible rights. It is more than hypocrisy, it is tyranny. These Rules are a cancer eating at the very heart of the judicial system and fatal to our fundamental concept of justice.

     Persons subject to the jurisdiction of the Courts of the United States and the states are entitled to the very highest standards of justice, including the highest standards of due process and equal protection, that are humanly possible. Those standards should not be abrogated without the consent of the people. Nor should any court maintain a fiction misleading the public as to the level of service it provides, or the attention given to any case by its judges. The public should be fully informed as to all aspects of the determinative process. Secrets, unauthorized delegation of judicial power, and compromise or complacency born not of logical interpretation of law but of "collegiality" have no place in any judiciary in America.

     Our common law system demands adherence to precedent. As the Chief Justice exhorted in a recent speech to the State Bar Convention:

"Our court system remains firmly rooted in precedent and has built on what has gone before -- while at the same time finding its structure thrust forward on the cutting edge of societal change and institutional innovation. Learning how to keep what works, discard what does not, and embrace helpful innovation requires constant vigilance and engagement by all of us -- but the price is well worth it, because the possibilities for making positive contributions are endless." (Chief Justice Ronald M. George, State of the Judiciary Address (Oct. 2, 1999) http://www.courtinfo.ca.gov/reference/soj10299.htm)

     Appellant urges this Court to adhere to the legal principles of the enlightenment that are the spirit of the Chief Justice's remarks. We are now at a unique time in history, where technology and the "information revolution" truly make it possible to fulfil the promise of equal access to the courts and the law, and to ensure that equal justice is dispensed through fair and consistent application of precedent.

     As the Civil Code commands, "When the reason for a rule ceases, so should the rule itself." (Civil Code § 3510.) In light of the available technologies for access and retrieval to information, including the internet, truly the reason for the selective publication and non-citation rules have ceased. Thus, so must the rules themselves.

     The resolution of these issues are of vital interest to all citizens.[1]  Yet, appellant must concern itself that this Court could choose not to publish its decision on the issues here presented. Regardless of the Court's decisions on these issues, Appellant respectfully suggests that this Court is duty bound to makes its decision available for all in this society. Thus, appellant requests this Court publish their decision in the Official Reports.

I.      RESPONDENT MISSTATES THE PROCEDURAL POSTURE OF THIS CASE AND CONSEQUENTLY, MISAPPLIES THE APPLICABLE STANDARD OF REVIEW.

     Preliminarily, respondent misstates the procedural posture of this case several times in its brief and thus, misapplies the appropriate standard on review. Respondent falsely states that this appeal is from the superior court's failure to enjoin the rules and/or to declare them unconstitutional. (Respondent's brief ("RB"), at pp. 1, 2.) This is erroneous.

     This appeal is from dismissal on the complaint alone, before appellant had the chance to conduct any discovery. (CT 246-48, 253-54.) As such, appellant must be afforded every traditional presumption on review. Specifically, this Court must assume the truth of all facts properly pleaded, as well as matters which could have been asserted on amendment of the complaint. (See Blank v. Kirwin (1985) 29 Cal.3d 311, 318.)

     Here, appellant made the following factual assertions in his complaint: that numerous demands have been made on the Courts of Appeal and the Supreme Court to publish opinions, which demands have been denied (CT 3-4, 6-7); that there is a lack of even-handedness in treatment of similarly situated litigants (CT 8-9); and that criminal defendants have been deprived of the ability to cite cases which would otherwise be favorable or controlling (CT 6; see also CT 237-38).

     The record also indicates that appellant could further allege: that unpublished opinions have been issued which contained new legal holdings, inconsistent with binding precedent, which were applied only to the litigants involved in that case and not to future litigants (CT 115, 117, 140, 232-34); that because of the rules, California courts have decided cases on an ad hoc basis, without regard to precedent (CT 122, 230, 232-34); that courts have abused the discretion granted by the rules by creating new liabilities or eliminating prior defenses, without announcing these changes in published opinions (CT 232-33, 235); and that courts decide whether to publish arbitrarily and without any rational grounds to do so (CT 234-35).

     In evaluating the validity of these rules, this Court must accept these assertions as true. (Blank, supra, 29 Cal.3d at p. 318.) Moreover, this Court must reverse the dismissal of this case if Appellant can state a cause of action on any possible legal theory. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444.) Appellant, and by extension all persons similarly situated, has not had his day in court. This Court should recognize that Appellant has pleaded facts sufficient to establish a cause of action and reverse the decision of the trial court.

     Finally, respondent misstates the specific relief sought in this action.[2]  Respondent states that appellant is seeking to require "every decision of the Court of Appeal and every decision of the superior court appellate departments be published as official reports." (RB 2.) This statement is not true. As appellant noted, there has been long history of a "dual" publication system in California, with some cases being published in a book called the "Official Reports" and all other cases being made available for private publication. (AOB 9.)

     Appellant did not dispute that the state retains the ability to determine which cases will, or will not, be published pursuant to contract in a book entitled the "Official Reports." (AOB 9, 38-39, 44.) Appellant simply requests the courts make all of their opinions available in some form to the citizens of this state, and consequently allow appellant and other litigants to cite as precedent all cases decided by the appellate courts of this state, regardless of the means by which those cases were made available.

II.      RESPONDENT'S THINLY VEILED "DIVIDE AND CONQUER" APPROACH FAILS TO ADDRESS THE CRITICAL ROLE RULE 977 PLAYS IN THIS UNCONSTITUTIONAL SCHEME OF "SELECTIVE PROSPECTIVITY."
A.     Rule 977 is the Essential Evil in the Selective Publication Scheme because it Permits an Unconstitutional System of "Selective Prospectivity."

      Respondent fails to address appellant's extensive arguments regarding how the rules operating together result in a scheme of "selective prospectivity" which violates due process, equal protection, free speech, separation of powers and right to petition government for redress of grievances. (AOB 12-36.) Instead, respondent employs a "divide and conquer" approach -- taking each rule, and each constitutional right, in isolation, failing to address the crucial role non-citation plays in this whole scheme.[3]  Indeed, respondent does not address Rule 977 and the restraint on speech it imposes until the very end of its brief -- after it discussed the completely unrelated issues of standing and subject matter jurisdiction. (RB 14-15.) Respondent then devotes less than one-half page to this argument, during which it cites no authority whatsoever. (See e.g., RB 10-11.)

     What respondent hopes to accomplish by the sleight of hand is to obscure the critical role that Rule 977 plays in the unconstitutionality of the entire scheme.

     Indeed, Rule 977 is the essential evil in the selective publication scheme. It is this rule which makes precedent "disappear." Without rule 977, arguably the other rules simply implement the court's right to determine which cases are published in a book entitled the "Official Reports" pursuant to contract. Absent any restriction on the citation of other opinions as precedent, such rules might be constitutional. As appellant noted, California has a long history of such "dual publication." What offends the constitution is the mandate that cases which are not published in the "Official Reports" are to be treated as if they don't exist,[4]  and the command that parties and attorneys not bring the law of these cases to the attention of any court, on pain of contempt.

     Civil Code § 22.5 commands that the common law is "the rule of decision in all the courts of this state." As appellant demonstrated in his opening brief, stare decisis and respect for precedent are the hallmarks, indeed the prerequisite, of any common law system. Respect for precedent is absolutely vital if the Rule of Law is to have any meaning. It is an essential component of our common law system.

     Yet, the non-publication/non-citation rules vitiate stare decisis and by extension, the Rule of Law. By permitting courts to decide cases on an arbitrary and ad hoc basis, and to suppress precedent under the non-citation rules, they establish an insidious system of "selective prospectivity," which cannot be tolerated in a democratic society. (James B. Beam Distilling Co. v. Georgia (1991) 501 U.S. 529; Griffith v. Kentucky (1987) 479 U.S. 314.) Due process commands that similarly situated litigants be treated similarly, and that rules of law are applied equally and fairly. Yet, the non-publication/non-citation rules prevent this very result.

     This system is at its most intolerable when applied to criminal defendants. The constitution mandates that the government provide a criminal defendant with all available exculpatory evidence. (Brady v. Maryland (1963) 373 U.S. 83, 86.) Yet these rules unconstitutionally deny a criminal defendant access to exculpatory law, by restricting the publication and availability of that law. And if a defendant happens by some good fortune to locate that exculpatory law, he is commanded not to speak a word of it, even if that law should prove that his conviction or confinement is unlawful. This is what troubled the appellate division in Valenzuela (see Argument V., infra), and this should also trouble this Court.

     These rules, in combination, circumvent the commands of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Under Auto Equity,

"all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state. . . " (Id. at p. 455, emphasis added.)

      Auto Equity requires courts to follow all decisions of courts exercising superior jurisdiction. This clearly includes any written decision, whether "officially" published or not. The rules, without any legislative authorization, make adherence to the commands of Auto Equity an impossibility. Parties cannot cite, and courts cannot rely on the unpublished decisions of superior courts. These rules must yield.

     Defenders have attempted to justify the non-publication/non-citation rules on the grounds that the unpublished decisions do not make a contribution to the body of law, but merely adjudicate disputes between the individual litigants. This argument is specious and not grounded in any reason. It is simply impossible to believe that over 90% of the cases decided by the appellate courts of this state contribute nothing to the development of the common law. Moreover, as one commentator noted, it is simply not possible for a court to determine, before the fact, which cases may have potential bearing on future disputes.

"As a matter of jurisprudential theory, it is simply impossible for the court that writes an opinion to know with certainty whether that opinion or decision changes the law. The meaning of a judicial opinion is in the eye of the beholder, not in the mind of the author. Opinions have the meaning that is attributed to them by subsequent courts." (Kelso, Report on the California Appellate System (1994) 45 Hastings L.J. 433, 490.)

     It is vital for the functioning of our common law system that all cases decided by appellate courts be made available and citable as precedent, regardless of whether they establish new rules of law. It is only by examining the application of a rule of law to specific sets of facts, as set forth in a variety of cases, that the precise definitions of that rule of law can be determined. And, attorneys can only advocate the relative positions of their clients by locating authority with the most similar set of facts and analogizing the facts of that case with the case at hand.

     As the Court of Appeal emphasized, the meaning of any common law rule "must be ascertained from the holdings in the cases in which it has been applied with an eye toward potential distinctions in light of the purposes served by the rule." (Kirkpatrick v. Westamerica Bank (1998) 65 Cal.App.4th 982, 987.) Yet, if over 90% of these cases remained buried, how can the courts (or litigants) so ascertain the law?

B.      Rule 977 is a Blatent Content Restriction on Speech which Can No Longer be Justified.

      Rule 977 essentially provides that no attorney or litigant may ever say to a court, "This is the law. You have recognized it in the past, and because of stare decisis you should follow it." Moreover, this rule commands that a court never say "This was the law, we are following (or distinguishing or overruling) it."

     This rule is the essence of a content restriction, yet respondent offers not one compelling interest justifying such a draconian restriction on speech. Moreover, even if there could be such an interest, rule 977 surely cannot be the most narrowly tailored means of meeting it, especially in light of the recent "information revolution."

     As appellant pointed out in his opening brief, such opinions could be made easily accessible through the internet; indeed, they could be posted on this Court's own webpage. (AOB 43.) Moreover, on-point opinions could be relatively easily identified and retrieved through boolian or "natural language" search engines, such as those available on Minnesota's and the Eighth Circuit's websites. (AOB 43.)

     Even if the court chose not to make opinions directly available through its own website, private vendors would surely make such opinions available, if only the non-citation rule did not make such an attempt futile. Indeed, if these opinions could be used as authority, a market would surely spring up for indexing these opinions, just as it has for the officially published cases. Indeed, many government agencies and practice or trade groups already maintain such indexing systems now, in order to determine what is happening in the vast majority of cases which go unpublished. (Shuldberg, Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeal (1997) 85 Calif. L. Rev. 541, 563-64; 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, 956-59.) Such a market will never fully develop, however, until such opinions can be cited, as they should, as precedential authority.

      The only feeble response respondent makes to appellant's First Amendment claims is that unpublished opinions "can be obtained from the court files, the parties or Lexis and Westlaw databases." (RB 15.) First, unpublished California opinions are not accessible through Lexis and Westlaw, although many federal courts, including the Ninth Circuit, make their unpublished opinions available on these databases.[5]  Second, while unpublished opinions are technically available through the court files and/or the parties, this is effectively not an option for the vast majority of litigants.

     Opinions are kept by the courts only chronologically. It would indeed take thousands of hours (or a highly skilled clairvoyant) to uncover cases on point. Technically, opinions are also available through parties, through again the services of a clairvoyant may be necessary to identify who the parties of these unknown cases on point are.

     Respondent also points out that the rules don't preclude a person from adopting the reasoning or language found in a non-published opinion. (RB 15.) This assumes, again, that the person can locate these opinions. While institutional litigants, such as Respondent, other governmental agencies and insurance companies, can easily access and index these unpublished opinions, they are effectively inaccessible to the average, non-institutional litigant.

     And so emerges the conundrum: Unpublished Opinions are not widely available because they can't be cited. And, so the reasoning goes, unpublished opinions shouldn't be cited because they are not widely available. It is time for this Court to stop this vicious circle. If unpublished opinions could be cited, a market for making them readily accessible would develop.

     As the Minority Report on the Non-Citability Rule noted, there is simply "no defense of a ban on citation in terms of principle or philosophy." (CT 54.) At the time of the report, the only reason offered for the non-citation rule was the lack of any means by which to make opinions accessible. Now that this concern has been eliminated, one of the true reason for maintaining the non-citation rule is laid bare -- we have decided to prohibit citation because "its just too hard for us insiders to keep up." Surely, it is a difficult task for any attorney or judge to keep up on the law and to keep decisions internally consistent. However, preventing a party from even mentioning inconsistent authority to a court cannot be an acceptable solution to this problem. The cure for this problem is more speech, not less. Only when the inconsistencies in the law are exposed can they be remedied.

III.      CONTRARY TO RESPONDENT'S ASSERTION, THE RULES ALLOW COURTS THE DISCRETION TO PUBLISH OR NOT PUBLISH, ON AN ARBITRARY AND AD HOC BASIS, WITH NO RESTRAINT ON THIS DISCRETION

      Respondent attempts to save this unconstitutional system of selective prospectivity by pointing to alleged restraints on the courts' discretion in deciding when to publish. Respondent first cites to Rule 976(c), which provides that intermediate appellate opinions shall be published if a majority of the appellate court certifies that the opinion meets one or more of the standards for noteworthiness. (RB 10.) However, all this means is that courts will publish decisions when they agree to publish them. There is no way for litigants or the public itself to assure that opinions which do change the law are published and made binding authority.

     Appellant alleged, and this court must accept these allegations as true, that courts routinely abuse their discretion in deciding whether to publish opinions. (See Argument I., infra.) Thus, this Court must assume for the purposes of this appeal that the courts have failed to follow the standards for publication set forth in Rule 976, and that they decide to publish cases on an arbitrary and ad hoc basis. As appellant noted in his opening brief, scholarly research has documented many such cases. (AOB 33.) Indeed, Justice Jefferson, after issuing the dissent in People v. Valenzuela (1978) 86 Cal.App.3d 427, in which he defended the rules, complained of the inappropriate use of non-publication to squelch a worthy dissent:

"When circulated to me, the majority opinion approved by the two justice making up the majority was marked for Publication in the Official Reports. It was only after I had circulated my dissenting opinion to the two justices who make up the majority that they decided to reverse their original position regarding publication in the Official Reports. I do not think this reversal of position is justified." (Justice Jefferson, People v. Para, No. CRA 15889, quoted at Quotations (visited Oct. 19, 1999) .)

     Moreover, the standards set forth in Rule 976 apply only to the intermediate courts' decision to certify the decision for publication. The ultimate decision whether to publish or not to publish lies in the complete and unfettered discretion of the Supreme Court. (Rule 976(c)(2).) There are no restrictions whatsoever on this decision.

     Again, appellant means no disrespect to this Court or to the Supreme Court. However, the very point of our constitutional system of checks and balances is that no branch of government may be trusted to police itself. Because the rules have no certain and objective limitation on the courts' discretion to publish or not to publish opinions, they cannot stand. Such rules violate not only individual litigants' rights to equal protection and due process, but offend the very principles of separation of powers and the Rule of Law upon which our society is based.

IV.     NEITHER THE CALIFORNIA CONSTITUTION NOR GOVERNMENT CODE § 68902 AUTHORIZE THE CURRENT NON-PUBLICATION/NON-CITATION SCHEME

      Respondent simply asserts, without any analysis, that the non-publication/non-citation rules are authorized by the California Constitution and Government Code § 68902. (RB 3-4.) Respondent fails to respond to appellant's extensive arguments about the intent behind these provisions, and how they cannot be interpreted to authorize the courts to make precedent "disappear." (AOB 37-39.) In so doing, respondent was apparently aware that no such argument could be made.

      Rules of Court are invalid to the extent that they exceed the scope of the enabling statutes enacted by the legislature, or are inconsistent with any other statutes. (Cal. Const., art. VI, § 6; People v. Hall (1994) 8 Cal.4th 950, 959; California Court Reporters Assn. v. Judicial Council (1995) 39 Cal.App.4th 15, 33-34.) As the First District explained, for a rule to be "inconsistent" with statute does not necessarily mean that that rule is utterly incapable of being reconciled with the statute. (California Court Reporters Assn., supra, 39 Cal.App.4th at pp. 23-26.) Rather, a rule is invalid when it is simply "unsymmetrical" with the statute or "inharmonious" with that statute's intent. (Id. at pp. 23, 25-26.)

     As appellant stated in his opening brief, these rules conflict with numerous statutory and constitutional provisions, including Civil Code section 22.5 and the constitutional provisions previously mentioned. (AOB 39-41.) Respondent made no attempt to even address this argument and thus, appellant will stand on his argument in the opening brief.

     Equally as important, these rules clearly exceed the scope of authority granted by the enabling statutes. (Cal. Const., art. VI, § 14; Govt. Code § 68902.) At most, these enabling statutes authorize the courts to determine which of the many appellate opinions may be published in the Official Reports. They do not, and cannot, authorize courts to prevent these cases from being published privately. More importantly, they do not, and cannot, authorize the non-citation rule.

     First, the California Constitution clearly does not authorize the no-citation rule, nor does it authorize the current selective publication scheme. The relevant provisions of the California Constitution provide:

"The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and the courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person." (Cal. Const., art. VI, § 14.)

     This language has existed in the state Constitution since 1904. (Barnett, Making Decisions Disappear: Depublication and Stipulated Reversal in the California Supreme Court (1993) 26 Loyola L.Rev. 1033, 1041; see also Ballot Pamphlet, Proposed Revisions of the Constitution, p. 92, attached hereto as Exhibit C.) In 1966, this clause was moved by voter initiative to the present § 14 from the prior § 16. (Id.) As Barnett noted, "It would seem strange if, after sixty-four years, the meaning of this mundane language had suddenly expanded to confer on the supreme court a new kind of law-making power, a power exceeding the "judicial power" granted by rest of Article VI." (Id.)

     While Barnett addressed the impact of the language in § 14 on the practice of depublication, it applies with equal force to the whole non-publication scheme, especially the non-citation rule. As appellant explained in his opening brief, California had a long history of "dual publication," with some opinions published in the "Official Reports" and others being made available for private publication. (AOB 9.) All opinions were binding precedent, however. (AOB 9.) The non-citation rule was not enacted until 1974, well after the "publication" clause was first added to the constitution, and well after the 1966 amendments to the constitution.

     Moreover, nothing in the legislative history or ballot arguments indicated any intent to broaden the clause's meaning. (Id. at p. 1084, fn. 35.) Indeed, prior to submitting the proposed amendment to the voters, the Article VI Committee debated inserting a provision authorizing a non-citation rule, and rejected it. (Minutes of the July 9, 1965 Committee on Article VI., attached hereto as Exhibit B.) As one of the committee members stated that since "law review articles and everything else is being cited to courts . . . to adopt this section would be a 'constitutional prohibition on enlightenment.'" (Exhibit B.)

     There is nothing to indicate that in approving this measure, the People of this State intended to authorize such a dramatic expansion in the power of the judicial branch, nor such a drastic erosion of the system of stare decisis and their access to the work product of the courts.

     It is thus clear that neither the original provision, nor the reenactment of that provision through the 1966 amendments, could provide authority for the non-citation rule. All that that provision authorizes is the selection of some cases for the official reports pursuant to contract, as opposed to making such opinions available through other means. To read this amendment otherwise would not only be illogical, it would contradict the legislative purpose and intent behind both Civil Code § 22.5 and the California Public Records Act. (See AOB 41.)

     Similarly, Government Code section 68902 cannot provide authority for the ban on citation. That statute provides:

"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. (Govt. Code § 68902, emphasis added.)

     This provision simply cannot be read to authorize the judiciary to make appellate precedent "disappear." Again, California has long had a two-tiered system of publication, with some opinions selected for publication in the Official reports pursuant to contract, and other opinions made available for private publication. Until the enactment of Rule 977 in 1974, all opinions whether "officially" or privately published were binding precedent. (AOB 9, 38-39, 44.)

      It is clear that, while this section may authorize the selective publication of opinions in the official reports, it cannot provide a basis for the courts to make all other opinions "disappear," or become non-binding precedent. Indeed, this rule was enacted well after this statute was enacted.

     As the Court of Appeal recently reiterated, rules of court are invalid insofar as they exceed the specific statutory grant of authority. (Marshall M. v. Superior Court (9/21/1999) ___ Cal.App.4th ___, 88 Cal.Rptr. 2d 891, 899.) The court rejected a portion of rule 1456(f)(4)(J), which provided that a court must consider a parent's claim of subsequent reasonable effort in determining whether to deny reunification services. (Id.) The court explained:

"Had the Legislature drafted the language of section 361.5, subdivision (b)(10) [the enabling statute] in this fashion, we are certain there would be no dispute over its interpretation. . . However, this rule of court does not track the language of section 361.5, subdivision (b)(10). The drafters of the rule added new terms and wholly omitted others. . . . Since it is inconsistent with the language of the statute, this rule does not persuade us." (Id. at p. 899.)

      As in Marshall M., the language of the non-citation rule does not track the language of the purported enabling statute. Indeed, nothing in section 68902 or article VI, § 14 can be interpreted to authorize such a prior restraint on speech. Thus, at the very least, Rule 977 cannot stand.

V.      DESPITE RESPONDENT'S CLAIMS TO THE CONTRARY, NO COURT HAS EVER DETERMINED THE CONSTITUTIONALITY OR LEGALITY OF THE NON- PUBLICATION/NON-CITATION RULES

      The issues presented in this appeal are issues of first impression. No court has ever considered the validity of the non-publication/non-citation rules. In an attempt to deflect attention from appellant's constitutionally based arguments, respondent erroneously states that these rules have been upheld by state and federal courts. (RB 4-7, 8-9.)

A.      People v. Valenzuela did not Address the Validity of the Rules.

      Respondent falsely states that the California Court of Appeal upheld the rules in People v. Valenzuela (1978) 86 Cal.App.3d 427. (RB 5.) The majority in Valenzuela never addressed the validity of the publication rules -- only the dissent did. (Id. at pp. 438-44.) Respondent is well aware that dissenting opinions are not binding authority.

     In Valenzuela, the appellate division of the superior court held that the defendant was entitled to a dismissal where there had been an unreasonable delay in arraignment. (Id. at pp. 429-30.) In the course of deciding the case, the appellate division had apparently granted defense counsel special permission to cite one of its own unpublished opinions, but then found that opinion inapplicable. (Id. at p. 438.) In its opinion, which was certified for publication, the court held that Rule 977 violated the basic concepts of stare decisis, and was contrary to Civil Code § 22.2. (Id. at p. 439.)

     The Court of Appeal reviewed the decision of the appellate division. The issue justifying transfer was whether the record supported the trial court's order of dismissal. (Id. at p. 438.) The court held that dismissal was not justified, and reversed the appellate panel. (Id. at pp. 431-32.) The Court did not choose to address the appellate division's discussion of Rule 977 because that issue was not necessary to resolve in order to determine the validity of the dismissal.

     In light of the foregoing, the majority opinion in Valenzuela simply cannot be read as "upholding" the validity of the non-publication/non-citation rules. The issue was simply not addressed by the court. Indeed, given that the appellate court did not address the issue, the most reasonable inference is that the court agreed with the appellate division on this matter.

     Similar to the effect of Rule 977, the effect of the transfer of the Valenzuela to the Court of Appeal was to extinguish this otherwise precedential authority issued by the appellate division. A majority of justices considering that decision deemed that the rules were invalid. And yet, appellant cannot cite that portion case as authority, even though it was not overruled or even disapproved of by the Court of Appeal. Indeed, appellant cannot even locate a copy of that decision. It is truly "phantom" law, just as are the thousands of unpublished cases locked somewhere away in the files of the Courts of Appeal.

     This is yet another reason why demurrer must be overruled here. Until appellant has had an opportunity to conduct discovery and examine these cases, he has no way of knowing how many cases exist which support his argument that these rules are invalid. How is appellant, or anyone, to know what rules of law have been declared and then buried because they were declared in decisions which were not certified for publication, or like the appellate division's decision in Valenzuela, were effectively "depublished?"

B.      Justice Jefferson's dissent in Valenzuela was legally and factually flawed.

     In his dissenting opinion, Justice Jefferson recognized that the issues certified for transfer in Valenzuela did not require the majority to address the validity of Rule 977. (Id. at pp. 438-39.) However, he went on to address the issue, and indeed it is only because of this fact that the appellate division's holding is even a part of the body of our case law. Given Justice Jefferson's later statement regarding the decision by two of his brethren to mark an opinion for non-publication seemingly to extinguish his controversial dissent from the casebooks, it is likely that he addressed the issue of Rule 977 in part to preserve the appellate division's reasoning from a similar extinction.

     In any event, because Justice Jefferson's diatribe on the validity of Rule 977 was simply the opinion of one justice, and was not based on the actual "case or controversy" before the Court of Appeal, it should be given no more weight than if Justice Jefferson had expressed these opinions in a non-judicial forum, for instance, in a law review article or a bar journal. Indeed, could the appellate division's opinion on the matter be located, it should be given the greater weight as authority, since it was decided by a majority of a court, considering the matter within a specific case or controversy.

      Finally, Justice Jefferson's analysis is legally flawed. Justice Jefferson admits that there is no specific authorization in either the Constitution or in § 68902 for the non-citation rule. (Id. at p. 440.) However, Justice Jefferson asserts that this rule is "required, or at least expedient" to make Rule 976 effective. (Id.) This reasoning simply flies in the face of authority which demands that there be a specific authorization for the Judicial Council's rules. As appellant previously noted, there is simply nothing in the enabling statutes that authorize courts to impose such a drastic restriction on speech. All that these sections authorize is a "dual publication" scheme, whereby some cases are published in the "Official Reports", pursuant to contract, and other cases are made available for private publication. (Argument IV., infra.) Justice Jefferson makes the impermissible claim that Rule 977 is authorized merely because it is "expedient." Mere "expedience" cannot justify such an intrusion into litigants' free speech or due process rights.

      Moreover, Justice Jefferson is incorrect in stating that the principle of stare decisis is not mandated by any constitutional principle. As appellant showed, stare decisis is a vital part of our constitutional guarantee of due process and equal protection. (AOB 13-15; see Planned Parenthood v. Casey (1992) 505 U.S. 833, 854; James B. Beam, supra, 501 U.S. at p. 548.)

     Moreover, the factual assumptions Justice Jefferson makes regarding the necessity of the rule are invalid, or to the extent that they once had some validity, have been eliminated by the passage of time and the change in technology. Justice Jefferson asserted that the non-citation rule was necessary because unpublished opinions were not widely available. (Id. at p. 441; CT 31.) For the same reason, the 1979 Chief Justice's Committee cautiously recommended temporary retention of Rule 977 as the lesser of two evils. (CT 31-34.) However, the Committee did recommend reconsideration of the non-citation rule if a convenient access system could be implemented. (CT 33.) As the Committee recognized, "Full access will also do a better job of dealing with unequal availability of unpublished opinions that the noncitation rule." (CT 28.)

     At the time of Valenzuela, perhaps it was not feasible to make opinions widely available because of limitations in technology and the prevailing print-based media. However, the initial fairness concerns which motivated Rule 977 are simply no longer present. Technologies do exist which would "level the playing field" by making all opinions easily retrievable.

     Defenders like Justice Jefferson simply cannot come up with a legitimate policy based reason for non-citation. Instead, they still cling to the original justification: Non-citation is necessary because opinions are not widely available. And, opinions are not made widely available (by either the government or by private vendors) because they are not citable as precedent.

     This kind of bootstrapping is simply untenable. There currently exists no legitimate justification for the citation rule.

C.      None of the Other Cases Cited by Respondent Support Its Position.

      Respondent falsely asserts that several other state and federal cases have upheld the non-publication/non-citation rules. (RB 4-5, 8-9.) However, the cases cited never addressed the validity or constitutionality of the publication scheme. They merely interpreted the meaning and effect of these rules. (People v. Superior Court (Clark) (1994) 22 Cal.App.4th 1541, 1547-48 [determining the meaning of "publication" in the rules]; In re Williams (1977) 69 Cal.App.3d 840, 842 [noting the effect of depublication under the rules was to render the opinion non-precedential]; see also State Farm Mut. Auto Ins. Co. v. Davis (9th Cir. 1991) 937 F.2d 1415, 1420; Travelers Indem. of Ill. v. Insurance Co. of N. America. (S.D. Cal. 1995) 886 F.Supp. 1520, 1526.) Indeed, the court in Williams expressed consternation that because of depublication, the court had to determine the identical issue twice. (69 Cal.App.3d at p. 842.) The court noted its concern that, because of the depublication, the petitioner in the depublished case "was relieved of the burden of an unconstitutional sentence but others similarly situated, such as the instant petitioner, were not." (Id.)

     It is black letter law that "[a] case is not authority for an issue neither raised nor considered." (People v. Wells (1996) 12 Cal.4th 979, 984, fn. 4.) In none of the cases was the issue presented by appellant raised or decided. Thus, they cannot serve as authority for respondent's position.

VI.      ALTERNATIVES EXIST TO ADDRESS THE REAL CONCERNS UNDERLYING THE NON-PUBLICATION/NON-CITATION RULES.

     As appellant mentioned in his opening brief and herein, the initial concerns which motivated the enactment of the non-citation have largely been eliminated in the last twenty years, through the emergence of new technologies for information storage and retrieval. Thus, all the rationales relied upon by the Chief Justice's Advisory Committee in recommending temporary retention of the rules are no longer viable. (See CT 23-30.)

     Another justification offered is that attorneys and the courts will suffer from intellectual overload and increased time spent researching in trying to digest all of the cases issued by appellate courts. First, some of these concern are allayed by the new searching technologies which are available on service providers such as Lexis, Westlaw, or through the internet. Second, this concern is based in part on the false assumption that attorneys today read, digest and remember every published appellate case that is issued. We truly have moved beyond the time when a small town lawyer could keep abreast of all areas of the law and competently represent a client in any one of them. Instead, most lawyers know the broad outlines of the law, but need to conduct specific research as the need arises, by either consulting indexed secondary sources or by researching and digesting the facts and holdings of specific cases. And, lawyers must, when necessary, refer a client to a more thoroughly trained specialist.

     This profession, like others, is increasingly specializing. And perhaps further specialization, is necessary in order for attorneys to keep providing competent representation and to keep the law consistent and equally applied. As technology has expended the universe of available knowledge exponentially, other professions have had to increasingly specialize to deal with these demands. For instance, a general practitioner is not expected to know the cutting edge of oncology, or to treat a patient suffering from cancer. That doctor is expected to know enough, however, to determine that cancer is a potential diagnosis and when to refer a patient to a qualified oncologist. The mere fact that the general practitioner could not "keep up" with the latest development in oncology would surely not justify stopping all medical research in that area. Yet, this is what the legal profession has essentially chosen to do through the non-publication/non-citation rules: to chill the very development of the law, thereby depriving litigants of due process and equal protection.

     Even if there is some merit to the argument that attorneys are suffering from information overload, it cannot justify the total prohibition on citation. The judicial process is not a game in which handicapping is necessary to ensure that each player has an equal chance of winning. It is possible that in denying the existence of immutable facts that it does make life easier for some attorneys or litigants, but that is hardly a reason for permitting these rules, which are so violative of fundamental constitutional protections, to continue.

     Trial courts, too, can better fulfil their duty under Auto Equity Sales if all appellate decisions are made available. Individual judges and justices clearly cannot digest and remember each and every decision decided by an appellate court. Instead, they do (and must) rely on the parties to alert them to legally significant issues and supporting authority. Making all decisions available for publication and citation would assist the trial courts in fulfilling their duty to apply the law equally and consistent with precedent.

     If the "crisis of volume" in opinions for practitioners and trial courts is mostly chimerical, the "crisis of volume" in the appellate courts is real, indeed. While no one dare admit it, the true reason for the maintenance of the unconstitutional selective publication scheme is that under the current crushing workload, appellate courts simply cannot craft well-reasoned and researched opinions in every case. Moreover, given the very real constraints under which they operate, courts cannot possibly reconcile all of the thousands of cases decided each year.

     A sign of this overload can be found in the Judicial Council's own Court Statistics report. (Judicial Council of California, Court Statistics Report (1999), available at Judicial Council website (visited Oct. 19, 1999) .) Statewide, each authorized justice had approximately 200 pending appeals during fiscal year 1997-98. (Id. p. 21.) There were over 18,000 appeals pending in California that same year. (Id. at p. 22.) Over the last ten years, the number of appeals and original matters filed with the courts of appeal has increased 35%. (Id. at p. 25.) The number of written opinions has increased by over 50%. (Id. at p. 27.) And yet, during the same time, there was only a 5% increase in the number of authorized justices, from 88 to 93. (Id. at p. 25.)

     For fiscal year 1997-98, the number of majority opinions per justice was an overwhelming 146 statewide -- meaning that each justice would be responsible for producing a majority opinion approximately every 1.5 days. (Id. at p.18.) During this day-and-a-half, the justice would have to read all briefs, review the record, conduct the necessary supplementary research, consult with fellow justices assigned to the appeal, and craft a well-reasoned written opinion, or, if not the authoring justice, at least review the opinion thoroughly enough to determine that it accurately reflects that justice's legal and factual analysis. Clearly, appellate court justices cannot fulfil their constitutional mandate to write reasoned, well-supported opinions under such time constraints. Opinion writing has thus been primarily delegated to less experienced, and non-elected, staff attorneys and externs. Lesser quality opinions are drafted and then consigned to oblivion by being marked "Not to be Published in the Official Reports."

     The courts' response to this "crisis of volume" -- i.e., the continued maintenance of the non-publication and non-citation scheme, has resulted in a "second tier" of justice for those whose decisions are stamped "Not To Be Published in Official Reports." Thus, the law's "dirty little secret" -- that there is simply too many cases to dispense evenhanded and high quality justice, is kept, at the expense of litigants' precious constitutional rights. Individual litigants, and we as a society, deserve better!

      Alternatives, including those suggested by appellant in his opening brief, exist to deal with these very real concerns. (AOB 44; see also Reforms (visited October 19, 1999) .) Reforms can be implemented to ease the court's workload, such as dividing courts to more specialized units, including into civil and criminal divisions. Moreover, the publication of all appellate decisions may lead ultimately to fewer appeals. As the law becomes more certain and concrete, civil litigants especially will have less reason and less incentive to appeal.

     Clearly, what is ultimately needed are more appellate justices to deal with the increasing workload. In the meantime, the public must be allowed access to the opinions which are authored by the court of appeal: first, so that they may determine what the law is; and second, so that the true consequences of this "crisis of volume" on the quality of justice in this state can be appraised.

VII.      RESPONDENT'S CLAIM THAT THE SUPERIOR COURTS AND THE COURTS OF APPEAL HAVE NO POWER TO DECLARE RULES OF COURT INVALID HAS NO MERIT.

      Respondent attempts to argue, as it did in the court below, that the Superior Court, and indeed this Court, has no authority to enjoin these rules of court, or to declare them invalid. This argument is, quite frankly, frivolous. Respondent concedes in another portion of its brief that courts may find rules invalid when they are inconsistent with statute. (RB 3.) Indeed, numerous courts have struck down rules of courts when they were inconsistent with statute or when they exceeded the scope of authority granted by the legislature. (See e.g., Hall, supra, 8 Cal.4th at p. 963 [rule 428(b) invalid]; Marshall M., supra, ___ Cal.App.4th at p. ___, 88 Cal.Rptr.2d at p. 899 [rule 1456(f)(4)(J) inconsistent with statute]; In re Robin M. (1978) 21 Cal.3d 337, 346 [disapproving rule 1351(e), to extent inconsistent] California Court Reporters Assn., supra, 39 Cal.App.4th at p. 33-34[rules 33(e), 891, 892, 980.3 invalid].)

      Again, appellant does not dispute that the Supreme Court is empowered to determine which cases shall be published pursuant to contract in a book entitled the "Official Reports." However, nothing grants the Supreme Court the unchecked authority to make precedent disappear. This Court is clearly empowered to declare the non-publication/non-citation rules invalid to the extent that they are unconstitutional or inconsistent with statute.

VIII.      APPELLANT HAS STANDING TO MAINTAIN THIS ACTION.

     Respondent fails to address or distinguish any of arguments about appellant's standing to bring this claim. Thus, respondent should be viewed as conceding this issue. (See California School Employees Assn. v. Santee School Dist. (1982) 129 Cal.App.3d 785, 787.) As appellant demonstrated, he has suffered both concrete and particularized harm as a citizen and an attorney. (AOB 46-47; CT 242-42.) Moreover, the record reflects that the trial court did not find appellant's complaint deficient on standing grounds. (RT 3-15.)

     Finally, even if appellant's complaint did not allege sufficiently particular facts to demonstrate standing, the trial court abused its discretion in denying leave to amend. Appellant asserted numerous ways that he has suffered concrete harm as a result of the publication rules. (CT 242.) Moreover, appellant requested leave to allege more specific, concrete injury and/or to add additional representative plaintiffs. (CT 242.) To the extent that the trial court relied on any alleged lack of standing in dismissing appellant's case, it must be reversed.

CONCLUSION

Wherefore, for the foregoing reasons, appellant respectfully requests that this Court reverse the trial court's order sustaining the demurrer without leave to amend and dismissing the case, and remand to the trial court for further proceedings.

DATED:

Respectfully submitted,

      Kenneth J. Schmier

      Jeanne M. Fahey

      Patrice M. Brymner

ATTORNEYS FOR APPELLANT

FOOTNOTES

[1]  There has been much scholarly debate about the validity of California's non-publication/non-citation rules, as well as similar rules in other jurisdictions. For the Court's convenience, a list of law review articles on the subject is attached hereto as Exhibit A. For further discussion of the validity of the non-publication/non-citation rules, see Committee for the Rule of Law (visited October 19, 1999) . Return to Text

[2]  Respondent also erroneously asserts that appellant did not challenge Rule 976.1. (RB at p. 3, fn. 1..) Appellant challenged the entire selective publication scheme -- i.e., rules 976 through 979. (See Notice of Errata at p. 3, filed June 30, 1999.) Return to Text

[3]  Rather than tackling appellant's constitutional arguments head on, respondent spends most of its time asserting, falsely, that courts have already held that the non-publication/non-citation rules are valid. (See Argument V., infra.) Return to Text

[4]  Indeed, Judge Garcia expressed confusion on this basis, stating at one point at the hearing on the demurrer, "My question is, is, is it citable? Did it happen or didn't happen? I don't know whether it happened or not. And that's the problem. If it's not published, I don't know whether it happened." (RT 12.) This is precisely the problem. Because of Rule 977, trial courts simply cannot follow the mandates of Auto Equity Sales. They cannot follow the law of superior courts, because they do not know what that authority is. This violates the basic command of Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455.) Contrary to Judge Garcia's suggestion, those cases indeed do exist. They are part of the very fabric of our common law. Rule 977 simply cannot make those cases disappear, be as if they never existed. Such is contrary to stare decisis, and to the very principles upon which our system of justice is based. Return to Text

[5]  To the extent that any user of these services wish to view only the officially published cases, this can be accomplished by a simple restriction on the search.