Some Lawyers Do Fight Injustice Of A Corrupted, Festering Judicial System!

August 27, 2004

By J. Jay Evenson


   The United States of America has always held that it is a “Nation of Laws” and not a land ruled by the whims of whoever happens to be in power. This, as so many scholars have pointed out, is the reason our people remain free, our banking system secure and our business world one of competition and hard-work rather than special privilege.
   To assure that the law is the same for everyone, the courts are supposed to apply the law uniformly, but that isn’t happening. Instead, the courts are allowing a two-tier justice system with one for the rich and another for the poor. Kenneth J. Schmier of San Francisco, a 54-year-old attorney, wants the public to be aware of a practice that he says threatens our state and federal judicial system.
   The practice is called “selective publication” and is permitted by California Rules of Court , Arizona Rules of Court and certain federal courts. Because of those rules more than 90 percent of appellate court decisions are not published. The unpublished decisions cannot be cited in any court proceedings or litigation.
   The procedure allows for selective enforcement and application of laws according to the critics. Appellate courts in more than 30 states have non-publication and non-citation rules. So do many federal courts.

   Public Must Know
   "My purpose is to draw the public's attention to these rules, because I believe if the people knew about them, they would in no way allow them," Schmier said.
   Schmier's brother Michael, also a seasoned attorney, says that the practice of selective publication "enables judges to ignore the law, knowing the injustice is hidden. Corruption and arrogance fester at every level because precedent is destroyed."
   The Schmier brothers have created the Committee for the Rule of Law, a group of lawyers, academics, jurists and other citizens who oppose selective publication. Ken Schmier has also designed a website, www., as a resource. The Committee brings to light that the courts of appeal across America have become judicial assembly lines dispensing inconsistent product rather than wisdom, often without significant involvement of any authorized justice, let alone three independent, qualified and prepared jurists.
   A number of legal experts agree. Two longtime opponents of non-publication and non-citation in federal courts are professors William M. Richman of the University of Toledo School of Law and William L. Reynolds of the University of Maryland School of Law.
   In a Cornell Law Review article (circa 1999), they argued that selective publication has led to a two-track appellate court system - well-reasoned, published opinions for the rich and unpublished ones for the weak or uninformed. Certainly not “liberty and justice for all.”
   "Only a third of the (federal district) courts' opinions are published," they write. "The remainder exist in a quasi-precedental netherworld, vastly reducing judicial accountability. Finally, the courts have abandoned the notion of one appellate method for all cases and all litigants.”
   The cases brought by wealthy, powerful or institutional litigants, receive the traditional appellate model. The routine, trivial cases - usually poorer, weaker litigants - are relegated to two-track appellate justice, according to the article. Even Public Defenders don’t want to “waste their time” giving indigent clients the special consideration to which each citizen is entitled. Federal PD Michael Tanaka objected to changing the process because it would require too much of his time researching the “applicable law.”

   Lazy Judges
   Many judges, support selective publication, arguing that publication of every appellate court decision would overwhelm the appellate courts and swamp the legal system. But opponents say just the opposite is true - too many cases are up for appeal because those precedents of previous decisions were not published. Not only are the decisions unavailable for citation in other cases, this process raises the question of whether or not the decision in a particular case violates the prohibition against “special” laws for certain individuals.

   Evil Justice?
   California Supreme Court Chief Justice Ronald George was quoted in a daily newspaper as saying that unpublished opinions are a "necessary evil to chill development of the law." Another California Supreme Court Justice, Kathryn M. Werdegar, echoed those same sentiments.
   "There are 14,500 cases disposed of by written opinions every year in California," Werdegar said. "Our concern as the highest court in California is to keep the law in an orderly fashion. It would be impossible for this court to review 14,000 opinions every year. If the opinion states something new or citable, under the rules it would normally be published. If it doesn't (state something new) and it were published, it could lead to chaos for trial courts who are trying to apply the law."
   Court of Appeals Judge Paul Haerle said, "They (decisions) tend to be standardized issues that don't help lawyers or trial courts in decisions that are coming down the road. We were trying to be judicious in what we order published. How many sets of books in any library can you have?"
   Schmier disagrees. "When has the saving of trees been determined to be of such public stature that it trumps constitutional rights?" he said, adding that the advent of online publishing eliminates the need to publish every decision in a book. Not only does the advent of online publishing make the process less costly, it speeds up the research attorneys should be doing on each individual case.
   Schmier is convinced that non-citation rule has "surreptitiously ended" the age-old system of stare decisis, by which legal principles used by courts to decide one case may be applied to subsequent cases involving similar facts and that knowledge would actually discourage lawyers from raising the same questions again.
   "Respect for law cannot be maintained while the courts cannot be expected to resolve similar situations in the same way," Schmier said. "Similar situations cannot be resolved in the same way when there exists no knowable institutional memory of what the courts have done in past similar situations."
   One appellate court case that might have set precedent for accused individuals in similar situations was left unpublished by the 4th Appellate District of California. It involved a single mother who could not find a baby-sitter for her 8-year-old daughter and, one evening in 1996, she left her child at home alone in her townhouse in a locked-gate community while she went to work.
   Kamiyama was convicted of misdemeanor child abuse and jailed for three months. In 1998, the appellate court overturned her conviction but ordered the decision not to be published. As a result, says Schmier, thousands of parents who may find themselves in a similar situation cannot use the logic of the court case to argue against their arrest or conviction. Among the eminent law professors who oppose selective publication is attorney Gideon Kanner, emeritus professor at Loyola University in Los Angeles, who fought the noncitation rule since it was created in 1972.
   According to Kanner, high court judges still offer the "too many trees" arguments because "they have tasted blood and they like it. They have available to them the means of manipulating the law, and they don't have to follow precedent."
   Not following precedent, Kanner says, means "you walk into court and you never know what the judge is going to do."
   Kanner also says that selective publication encourages lazy, poorly reasoned appellate decisions. "Judges are human," Kanner said. "The nonpublication option gives them the opportunity to make opinions without creating big trouble.
  Therefore, instead of putting pressure on courts to improve the quality of opinions and reduce the number of appeals, they keep processing the river of paper flowing through court."
   Even some attorneys who make a living filing appeals say the process just gives them more opportunities to make fees by filing more appeals. But most say they would prefer to have the law and precedents firmly established.

   It Didn’t Happen?
   If it wasn’t bad enough to have “non-publication” of appeals rulings, California has a procedure that allows for “de-publication.”
   Kanner says "depublication" of appellate court decisions allows precedent-setting published opinions to be expunged by the state Supreme Court and the higher court doesn’t even have to consider the case or facts involved - they just say they don’t like the published decision and change it.
   Professor Stephen Barnett of Boalt Hall School of Law at the University of California at Berkeley , critiques the process: "The Supreme Court decides there is something they don't like therefore it shouldn't be law," Barnett said. "It's improper for the court to do that without actually deciding the case. The court doesn't say what it doesn't like about the case. And there's the potential for treating different litigants differently. This litigant loses but the next litigant in the same position may win."
   Ken Schmier says such practices violate the constitutional right to equal justice under the law. "De-publication is not a word defined anywhere. The right word is erase," Schmier said.
   "The whole system is not just unconstitutional, it's unwise as well."