Benjamin Elliot Kaplan (SBN 43456)
Douglas C. MacLellan (SBN 169933)
LAW OFFICES OF KAPLAN & SAM
Opera Plaza, Suite 2090
601 Van Ness Avenue
San Francisco, California 94102
Telephone: (415) 447-8300

Kenneth J. Schmier (SBN 62666)
1475 Powell Street
Emeryville, California
Attorneys for Plaintiff/Petitioner
MICHAEL SCHMIER

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE CITY AND COUNTY OF SAN FRANCISCO

Plaintiff/Petitioner MICHAEL SCHMIER alleges as follows:

1. Plaintiff/Petitioner MICHAEL SCHMIER (referred to herein as "Plaintiff/Petitioner") is a citizen of the United States of America, a resident of the State of California, a taxpayer, a registered voter in the City and County of San Francisco, a member of the State Bar of California, and a person beneficially interested in the issuance of the writ because he has a clear, present, and substantial right to the performance of Defendants/Respondents' duties, and is concerned that Defendants/Respondents perform its duty under the law. Plaintiff/Petitioner is interested as a citizen in having the laws executed and the duty in question being enforced. Plaintiff/Petitioner brings this action on behalf of himself individually, on behalf of all persons similarly situated in the State of California, and as a Private Attorney General.

2. The object in question is one of public right and the object of the request for issuance of a Writ of Mandate/Prohibition is to procure the enforcement of a public duty or to prohibit the named Defendants/Respondents from continuing to act contrary to their public duty. This is necessary to promote the policy of guaranteeing to citizens the opportunity to ensure that no government body impairs or defeats the Constitution of the United States, the Constitution of the State of California, the duly enacted statutes of the State of California, the common law of the State of California, or the purpose of legislation establishing a public right.

3. The judicial power of the State of California is vested in the Defendant/Respondent SUPREME COURT OF CALIFORNIA, the Defendant/Respondent CALIFORNIA COURTS OF APPEAL, as well in various trial courts, pursuant to Article VI Section 1 of the Constitution of the State of California (hereinafter "California Constitution") The trial courts are not named as defendants/respondents herein because the trial courts are not ostensibly vested or empowered with authority to commit the acts herein complained of and have not purported to exercise such authority.

4. This action is, in part for issuance of a Writ of Mandate or Prohibition in the alternative, or issuance of a peremptory Writ of Mandate and/or Prohibition, or other appropriate relief, and is filed under and pursuant to Code of Civil Procedure §§1085, 1086, 1102, 1103, Rule 4 et seq. of the San Francisco Superior Court Rules, and Rule 56 of the California Rules of Court.

5. Defendant/Respondent SUPREME COURT OF CALIFORNIA (hereinafter referred to as "SUPREME COURT") is the highest level appellate court in the State of California. Other than in death penalty appeals, the SUPREME COURT has discretion in accepting and reviewing matters on appeal. The SUPREME COURT also has the ostensible authority to determine whether an opinion certified for publication shall not be published, and/or an opinion not so certified shall be published, pursuant to Rules 976(c)(2), and 978(b) of the California Rules of Court. The SUPREME COURT also has the ostensible authority to determine whether or not an opinion not originally certified for publication may be cited once the opinion has been ordered published by the SUPREME COURT, pursuant to Rule 977(d) of the California Rules of Court. Upon a request for depublication and pursuant to Rule 979(c) of the California Rules of Court, the SUPREME COURT also has the ostensible authority to order an opinion republished. Plaintiff/Petitioner is informed and believes and on such information and belief alleges that the SUPREME COURT has refused numerous requests that it not only change the substance and implementation of these policies and practices, but has in numerous cases directly involving cases and controversies, refused at the request of party's litigant, and others, to permit the publication of Court of Appeal decisions, or has refused to withdraw decertifications of opinions of the Court of Appeal.

6. Defendant/Respondent CALIFORNIA COURTS OF APPEAL (hereinafter referred to as "COURTS OF APPEAL"), is an intermediate appellate court in the State of California to whom appeals from the Superior Courts of the State of California are brought as a matter of right. The COURTS OF APPEAL initially determine which of its opinions should and should not be published, ostensibly pursuant to Rule 976(c)(1) of the California Rules of Court. Plaintiff/Petitioner is informed and believes and on such information and belief alleges that the COURTS OF APPEAL have refused numerous requests that it not only change the substance and implementation of these policies and practices, but have in numerous cases directly involving cases and controversies, refused at the request of party's litigant, and others, to permit the publication of Court of Appeal decisions.

7. Defendant/Respondent CALIFORNIA JUDICIAL COUNCIL (hereinafter referred to as "JUDICIAL COUNCIL") is a commission provided for in Section 6 of Article VI of the California Constitution and in Government Code §68701, et seq. The JUDICIAL COUNCIL is responsible for the adoption of rules for court administration, practice and procedure, which are not inconsistent with statute. The JUDICIAL COUNCIL is also responsible for setting the direction and providing the leadership for improving the quality and advancing the consistent, independent, impartial and accessible administration of justice, pursuant to Rule 1001(2) of the California Rules of Court.

8. The JUDICIAL COUNCIL is specifically charged in its Mission Statement to "interpret and apply the law consistently, impartially, and independently to protect the rights and liberties guaranteed by the Constitutions of California and the United States", pursuant to Rule 1001 of the California Rules of Court. Despite this mission statement the JUDICIAL COUNCIL has continued to enact and promulgate the California Rules of Court respecting the publication of the decisions of the COURTS OF APPEAL.

9. By this Petition, Plaintiff/Petitioner seeks the issuance of an alternative Writ of Mandate or Prohibition, or the issuance of a peremptory Writ of Mandate and/or Prohibition, and/or a temporary restraining order and preliminary injunction, and for permanent injunction, or other appropriate relief, compelling the publication of all COURTS OF APPEAL opinions. This Complaint/Petition seeks to obtain a holding that Rules 976, 977, 978, and 979 of the California Rules of Court (referred to herein as "these Rules") violate the following: (1) The Equal Protection and Due Process Clause of the Fourteenth Amendment, §1, to the United States Constitution and both Article I, §7, and Article IV, §16, of the California Constitution; (2) the constitutional provisions of the Separation of Powers, California Constitution, Article III, §3; (3) the right to petition the government for redress of grievances of the First Amendment of the United States Constitution, and of Article I, §3, of the California Constitution; (4) the guarantee of Freedom of Speech of the First Amendment to the United States Constitution and of Article I, §3, of the California Constitution; and (5) the provisions mandating that the common law is the law of the State of California, and the doctrine of stare decisis, as well as implicating California Civil Code §22.2. By recognizing that it is only present litigants who are damaged by "No Publication-No Citation" rules, this Court can limit its conclusions to enjoining the enforcement of cases only where res judicata has not yet attached to the final judgment in accordance with well established legal principals of res judicata and collateral estoppel.

10. These Rules violate the doctrine of stare decisis which violation is intolerable in a society whose governmental decisions are supposed to be free and open and whose legal system is founded on principles of the common law. These Rules impermissibly create restraints on the ability of litigants to express themselves freely and fully in this society in that the Rules limit speech before the very tribunals which are supposed to be the guardians of that freedom. In instances involving persons who are accused of crimes, these Rules deprive such individuals of the right to cite a case otherwise favorable and controlling of that individuals fate. These illustrations are but some example of how these Rules violate the equal protection of the laws.

11. Pursuant to the California Constitution, Article VI, §10, this court has original jurisdiction in proceedings for extraordinary relief in the nature of mandamus and prohibition, and its alternative or peremptory Writ of Mandate or Prohibition, or other appropriate relief, will arrest the proceedings of any tribunal, when such proceedings are, as in this case, without or in excess of the jurisdiction of such tribunal. [CCP §1102]

12. Plaintiff/Petitioner is informed and believes and on such information and belief alleges that numerous demands have been made on Defendants/Respondents to publish various Courts of Appeal opinions but Defendants/Respondents have refused to publish these opinions. Plaintiff/Petitioner is informed and believes and on such information and belief alleges that on June 1, 1979, a document was published as the REPORT OF THE CHIEF JUSTICE'S [California] ADVISORY COMMITTEE FOR AN EFFECTIVE PUBLICATION RULE (hereinafter "CHIEF JUSTICE'S REPORT"). A true and correct copy of CHIEF JUSTICE'S REPORT is attached hereto and incorporated herein as EXHIBIT A. In the CHIEF JUSTICE'S REPORT, the majority position favoring continuing implementation and operation of the offending rules was not based upon any principle or philosophy, but rather on the physical and logistical "impossibility" in the face of mounting costs to permit the publication of all opinions. At that time, the year 1979, there was no widespread availability of personal computers, nor was there such a tool of communication and publication known as the Internet, which Internet is now extensively utilized in the United States of America and in the State of California for the publication of decisions and other legal materials. The availability of the Internet, usually at very limited costs and in instances of public availability no cost at all to the individual, as well as private, modestly-priced providers such as Lexis and Westlaw, makes the sole basis of the objection made in 1979, totally without merit.

13. The "system" will no longer "choke itself' if litigants are allowed the freedom to tell courts what other courts have done. The widespread availability of the Internet will no longer give some attorneys and litigants an "unfair advantage" over others in allowing references to decisions not contained in the "official reports."

14. The judicial process is not a game in which handicapping is necessary to insure that each player has a 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 constitution protections to continue.

15. Plaintiff/Petitioner brings this action as a citizen of the United States of America and the State of California and as a Private Attorney General because he believes that we, as a society, cannot condone the anomaly inherent in depriving generations of litigants "the benefit of the law." These litigants, who would be, and are daily, affected by pertinent prior decisions which they are prevented from accessing or bringing to the attention of the court before whom they are litigating. Plaintiff/Petitioner 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. If the grievance for which relief is sought by a litigant is a claim that the law is not being uniformly applied in the courts because there is a lack of even handedness in the treatment of itself and other classes of litigants, then that litigant is being deprived by these offending Rules of an effective opportunity to petition for a redress of its grievances. "If there is any area of our body politic in which expedience should not be exalted over principle, we believe it to be the judicial process." EXHIBIT A, CHIEF JUSTICES REPORT, Minority Opinion page 40.

16. By failing to publish all of the COURTS OF APPEAL opinions, Defendants/Respondents CALIFORNIA SUPREME COURT, the COURTS OF APPEAL, were and are acting in their administrative and non-decisional capacities, and not as superior tribunals, and, with the JUDICIAL COUNCIL, are without or in excess of their respective jurisdiction.

17. Plaintiff/Petitioner has performed all conditions precedent to the filing of this petition by Plaintiff/Petitioner's timely filing thereof and shall provide such notification to the Defendants/Respondents as provided by CCP §§1088 and 1088.5 and Rule 56(f) of the California Rules of Court.

18. In accordance with CCP §1103 and decisional law relating thereto, Plaintiff/Petitioner has a right to, and a beneficial interest in this matter, and the issuance of the writ is necessary to contest the validity of Rules 976, 977, 978, and 979 of the California Rules of Court.

19. The issue of publication of all COURTS OF APPEAL opinions is one of public right and public interest and the object of this Petition is to procure the enforcement of the laws under the U.S. Constitution and the California Constitution.

20. Plaintiff/Petitioner has standing as a "Private Attorney General", pursuant to Code of Civil Procedure §1021.5 and numerous citable decisions supporting that standing. The publication of all SUPREME COURT and COURTS OF APPEAL opinions will result in significant benefits conferred to the general public, or to a large class of persons, including, but not limited to, the enforcement of basic rights under the Constitution of the United States and the California Constitution, the restoration of stare decisis and the growth of public confidence in the judicial system gained by public scrutiny of judicial opinions. The necessity and financial burden of private enforcement of Equal Protection, Due Process, Freedom of Speech, the Right to Petition for the Redress of Grievances, Separation of Powers, and the doctrine of stare decisis are such as to make an award to Plaintiff/Petitioner for all expenses he has incurred in bringing this suit appropriate.

21. Defendants/Respondents SUPREME COURT, COURTS OF APPEAL and JUDICIAL COUNCIL have a duty to comply with both the letter and spirit of the Equal Protection, Due Process, Freedom of Speech, and Right to Petition for Grievances clauses of the United States Constitution and similar rights conferred by the California Constitution, and the constitutional provision of the Separation of Powers, California Constitution, article III, §3. Fundamentally, the Defendants/Respondents are without power or authority to destroy, violate, modify or abridge the doctrine of stare decisis, and cannot abrogate by rule the common law of this State.

22. At all times herein mentioned, Defendants/Respondents SUPREME COURT, COURTS OF APPEAL and JUDICIAL COUNCIL, and each of them, have been able to publish opinions by the SUPREME COURT and the COURTS OF APPEAL. Notwithstanding such ability, and despite Plaintiff/Petitioner's, and others, demands for the performance of such duties, Defendants/Respondents SUPREME COURT and COURTS OF APPEAL have failed and refused, and continue to fail and refuse, to grant Plaintiff/Petitioner's, and others, request to have all opinions of the COURTS OF APPEAL be certified for publication in the Official Reports of the State of California or otherwise cause their publication on computer based media.

23. Plaintiff/Petitioner has no plain, speedy, and adequate remedy in the ordinary course of law, other than the relief sought in this petition, in that there is no other means to challenge the validity of Rules 976, 977, 978, and 979 of the California Rules of Court. These violations of the Constitution of the United States and the California Constitution are continuing daily, and are causing grievous harm to numerous litigants, which harm is not compensable in damages or in any other relief as it deprives litigants of the fundamental right to be heard. Moreover, the continued violations by Defendants/Respondents as set forth herein are causing irreparable damage to the operation of our system of law and to the body politic that relies on our courts of law to dispense justice fairly, equally, and uniformly to all litigants. Fundamentally, these violations by Defendants/Respondents also deprive the judiciary of its ability to function by preventing the judiciary from the utilization of the opinions of its fellow members of the Juzgado, and thus promotes a practice which inherently contributes to the litigation explosion which has inundated the court system. By publishing all opinions, the public will be able to seek a much larger range of fact patterns and situations which might correspond to their own, and thus render more certain the process of "turning to the courts" for a resolution of disputes.

24. If this Court does not provide the relief prayed for, the public interest will be jeopardized in that an official body of the State of California will be acting in violation of the state law. No reason exists in law, in logic, in politics, in logistics, or expense, for depriving the general public of the opportunity to scrutinize all opinions of the COURTS OF APPEAL. The law should not be hidden, it should be open for all to see. This is even more fundamentally the case when the California Constitution provides for the body politic to approve on a regularly constituted basis the position of the Justices of the Defendant/Respondent COURTS OF APPEAL.

25. Defendants/Respondents SUPREME COURT, COURTS OF APPEAL, and JUDICIAL COUNCIL, by continuing to allow opinions by the COURTS OF APPEAL to be ordered unpublished, are acting contrary to law, have exceeded their authority and are failing and refusing to perform a duty specially enjoined on them by law in that such is violative of the equal protection of the laws, Freedom of Speech and the Right to Petition the Government for the Redress of Grievances as is afforded by the Constitutions of the United States and California, the separation of powers between the different branches of government of the State of California, and the doctrine of stare decisis. "Law is the solemn expression of the will of the Supreme power of the State." California Civil Code Section 22. "The will of the supreme power is expressed: (a) By the Constitution; and (b) by statues." California Civil Code Section 22.1. The common law of England, as it finds expression in the decisional law of the State of California, is the rule of decision of all courts of this State. California Civil Code Section 22.2. It is essential in preserving our democracy and our representative form of government, that the separation of powers that prevents any branch of government from tyrannizing the people be maintained, and the right of the people to have justice by the application known and published laws that are fairly, equally, consistently, and uniformly applied under the doctrine of stare decisis.

WHEREFORE, Plaintiff/Petitioner prays:

1. That an alternative Writ of Mandamus and/or Prohibition be issued.

2. That a peremptory Writ of Mandamus and/or prohibition be issued commanding Defendants/Respondents to publish all Courts of Appeal opinions where res judicata has not yet attached to the final judgment.

3. For the issuance of a temporary restraining order, preliminary injunction and permanent injunction restraining and preventing Defendants/Respondents from in any way enforcing Rules 976(b) and (c), 977, 978, and 979 of the California Rules of Court.

4. For fees and costs of this proceeding and for such other and further relief as the court deems just and proper.

Dated: May 21, 1998 LAW OFFICE OF KAPLAN & SAM

By:__________________________

BENJAMIN ELLIOT KAPLAN

Attorney for Plaintiff

Petitioner MICHAEL SCHMIER

I, MICHAEL SCHMIER, am the Plaintiff/Petitioner in the above entitled action and proceeding. I have read the foregoing COMPLAINT FOR INJUNCTIVE RELIEF/PETITION FOR WRIT OF MANDATE OR PROHIBITION IN THE ALTERNATIVE OR OTHER APPROPRIATE RELIEF and know its contents. The facts stated therein are true and within my personal knowledge, except as to matters therein stated on information and belief, and as to those matters I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed at San Francisco, California on May 21, 1998.

________________________________

MICHAEL SCHMIER, individually

and on behalf of all persons

similarly situated in the State

of California and as a Private

Attorney General

Dated: May 21, 1998 LAW OFFICES OF KENNETH J. SCHMIER

By:__________________________

KENNETH J. SCHMIER

Attorney for Complainant Petitioner MICHAEL SCHMIER