August 19, 2004

By Peter Blumberg

        SAN FRANCISCO - Two years ago in Los Angeles, a man who refused to stop picketing outside Johnny Cochran's office with signs calling one of the world's best-known lawyers "a crook, a liar and a thief" was ordered by a court to shut up - forever.
        But just last week in Orange County, an appellate court said it's unconstitutional to silence a woman who spread nasty lies about a tavern next door to anyone who would listen.
        The lawyer representing the tavern now says the outcome might have been different - he might have won - if he had been able to point to the case of the famous defamed attorney to give more support to his own legal arguments.
        "If that case could have been cited by me, I should have won," said J. Scott Russo, a lawyer with Irvine's Dubia, Erickson, Tenerelli & Russo.
        But it's not as if Russo simply forgot about Cochran's hard-fought victory against a phalanx of First Amendment lawyers representing his sidewalk critic.
        Russo was forbidden - silenced, if you will - from even mentioning the Cochran case in written briefs and oral argument because it is an unpublished opinion, the equivalent of being invisible in the annals of case law. Under a strict reading of California Rule of Court 977, attorneys can be slapped with fines for discussing the Cochran case in court.
        "We mentioned to the Court of Appeal that there was a case out there that we couldn't cite, but the rules are the rules," he said. "It's not worth a sanction."
        In theory, the fundamental rule of jurisprudence that courts build on the precedents set by earlier cases ensures that the law will be applied consistently to similar sets of facts.
        But when appellate courts elect not to publish their rulings, thereby excluding them from future use, there are no guarantees about consistency: The legal arguments that win one case may be completely disregarded in another case.
        This may help explain how courts in neighboring counties came to very different conclusions in balancing free speech interests against the rights of businesses, be they law firms or restaurants, to protect their reputations.
        Cochran's complaint about his former client reads much like the Village Inn's beef with its irate neighbor.
        Cochran wanted to put end to a years-long sidewalk protest by a poor elderly man who allegedly refused to go away unless Cochran paid him off. The venerable Village Inn of Newport Beach lost patience with a vacation cottage owner who allegedly harangued patrons and employees with rumors that the bar was run by the Mafia, acts as a brothel, serves tainted food, distributes illegal drugs, makes sex videos and "encourages lesbian activities."
        Both plaintiffs convinced trial judges they were victims of vicious defamation. They also persuaded the judges to silence their critics, contending that the usual remedy in defamation cases, monetary damages, would be insufficient.
        The judge in Cochran's case ordered defendant Ulysses Tory and his partner to refrain from picketing or "orally uttering statements about Cochran" in any public forum. The judge in the Village Inn case ordered defendant Anne Lemen to cease contacting bar employees, taking photos or filming within 25 feet of the bar and making defamatory statements.
        That's where the cases go separate ways. Cochran won on appeal and the Village Inn lost.
        In Cochran v. Tory, the 2nd District Court of Appeal upheld the injunction against Tory, flatly rejecting his claim that it was an unconstitutional prior restraint.
        But in Balboa Island Village Inn Inc. v. Lemen, the 4th District Court of Appeal struck down the injunction against Lemen because its conditions are "impermissible content-based prior restraints on speech and are overly broad."
        Curiously, the appellate panels reached these opposite results by analyzing the same case: Aguilar v. Avis Rent a Car System, Inc., 21 Cal.4th 121 (1999).
        In Aguilar, a sharply divided California Supreme Court ruled that the employees of a rental car office were entitled to a prior restraint injunction under the state's anti-discrimination law to stop their supervisor's persistent use of racial epithets.
        In Cochran, the 2nd DCA's Miriam Vogel said Aguilar gives courts authority to suppress speech that is "unprotected" under the First Amendment, such as Tory's false statements about Cochran.
        In Village Inn, the 4th DCA's William Fybel said Aguilar allows prior restraint only when it's proven that the speech is not only defamatory, but also runs afoul of some other law, such as the anti-discrimination statute.
        Fybel, for his part, wrote Village Inn as if Cochran didn't exist.
        The Village Inn "has cited no California case, and we have found none, upholding an injunction enjoining defamatory statements based solely on a common law cause of action for libel or slander," he wrote.
        A bill introduced in the Legislature earlier this session would have allowed unpublished opinions to be cited - thus solving the problem that Russo faced. But the bill was quickly snuffed out by the Judicial Council, which instead proposed to study the issue further.
        To date, California's judiciary has staunchly resisted changing the rules on non-publication, saying it would do more harm than good to force lawyers and judges to comb through thousands of unpublished opinions whenever they research case law. The overwhelming majority of appellate opinions, more than 85 percent, are deemed not worthy of publication because they don't make new law.
        Critics of the status quo say unpublished opinions set up a double standard in which the winning party gets the benefit of an appellate judgment that has no binding force on anyone else.
        Put another way, says Stephen Barnett, a Boalt Hall emeritus professor and First Amendment expert, the inability of litigants to piggyback on the precedent set by Cochran deprives the Village Inn of equal treatment under the law.
        Even worse, Barnett said, because Cochran is "flagrantly inconsistent with existing law," it raises suspicion that the decision not to publish the opinion may have been a favor to the well-connected senior partner of Cochran, Cherry, Givens & Smith.
        "He's getting treatment inconsistent with the law from three judges who refuse to make their decision citable," he said.
        Cochran's lawyer, Jonathan Cole, said that's a jaundiced view of the system.
        "Frankly, I have more faith in the honesty and integrity of the judiciary than apparently Mr. Barnett does," he said. "I don't believe that three justices on the Court of Appeal would get together in a little huddle and say, 'This is Johnny Cochran. We've got to help him.'"
        Cole also expressed doubt that Village Inn would have turned out any differently if the 4th DCA had taken Cochran into account.
        He pointed out what he considers a major difference in the two disputes: Unlike Lemen, who tried for years to get the Village Inn to make less noise, Tory's purported goal was to get Cochran to pay him thousands of dollars.
        "Tory's speech was found not be protected speech because it's speech for the purpose of committing a crime, i.e., to extort money from Cochran that was not owed," said Cole, a lawyer with Nemecek & Cole in Sherman Oaks.
        Lemen's lawyer could not be reached Wednesday.
        Cole said he doesn't have strong feelings one way or the other about Cochran being unpublished.
        "Would I have been chagrined if it was published? No," he said. "But if I think about my client - my primary fiduciary duty - I don't need the case published, I don't need the publicity. I just want this guy [Tory] to go away."
        In any event, the final chapters of Cochran and Village Inn have yet to be written.
        Although the California Supreme Court refused to review Cochran, a petition seeking review is pending before the U.S. Supreme Court. A decision is expected in September.
        "I think the opinion in the Balboa Island Village Inn case was right on, and I think it shows how wrong the court was in the Cochran case," said Jean-Paul Jassy of Los Angeles, who represents Tory. "We're considering what impact this could have with the U.S. Supreme Court."
        Russo, meanwhile, said he may appeal Village Inn to the California Supreme Court.
        Given that high courts are fond of taking up issues that produce differences of opinion in mid-level appellate courts, both cases may now have a better chance of being accepted for review.