Attorney gets his say before supervisors over judicial practice
Marin Independent Journal
December 15, 1999
By Jane Futcher IJ Reporter
Kenneth Schmier didn't win a penny of the $10 million claim he filed against Marin County for false arrest at a judges' forum last year. But yesterday he got something he believes was more valuable- a 30-minute hearing before the county's Board of Supervisors to talk about a California appellate court practice he deplores.
The practice- the nonpublication/no-citation of more than 90 percent of the state's appellate court decisions- is permitted by California Rules of Court, Rules 976-979. Under the rules, an unpublished opinion cannot be cited as precedent in any subsequent court proceeding.
Schmier, an attorney and developer, was questioning the rule in October 1998 at Meet Your Judges Night at the Veterans Memorial Auditorium in San Rafael when he was forcibly removed at the request of Marin Superior Court Judge Stephen Graham.
Yesterday, supervisors said they would review Schmier's request for a resolution calling for a state legislative investigation of the nonpublication/no-citation rules. They asked Marin County Counsel Patrick Faulkner to study the resolution.
"I, too, care about equal protection under the law," said Supervisor Steve Kinsely, "and will give consideration to the issue."
Schmier decried Rules 976-979 because, he said, they "say virtually all of the precedents of our courts are not precedent of our courts. We cannot see how a system of law that requires attorneys and judges to justify their positions with logic based on precedent can operate when the same persons are forbidden to bring the vast majority of precedent to any court's attention."
Nine other people spoke at yesterday's hearing.
One speaker, Sarah Nome of San Anselmo, shared a personal experience she had with California's depublication laws. In 1992, she said, the California Court of Appeal in San Francisco rules in her favor in a case she brought against San Anselmo City Council. She said the court called her case "a landmark," but soon after, at the city's request, the state Supreme Court ordered the opinion depublished.
"It's a terrible waste of court time," Nome said. "Now no one may use the knowledge gained in that case. A case should be a matter of public opinion and remain so."