Chief Justice Derails Bill on Changing State's Citation Rules
By Linda Rapattoni
Daily Journal Staff Writer

      SACRAMENTO - Score another point this week for Chief Justice Ronald M. George, who has consistently knocked down every legislative effort to allow lawyers to cite unpublished opinions in briefs filed in California courts.
      Assemblyman Mervyn Dymally, D-Los Angeles, met with George Tuesday and decided not to introduce a bill that a couple of Emeryville lawyers were pushing to change California court rules on citation.
      "He met with the chief justice, and there's not going to be any legislation we're going to introduce," said Warren Quann, Dymally's legislative director. "That's not something we want to get into. It's not our purview. Mr. Dymally is not a legal eagle."
      Quann said the court has taken the position that it should write a seminal opinion for each area of law, such as auto accidents, and use it as a guideline for similar cases instead of having to write an opinion on every auto accident.
      Stephen Barnett, emeritus professor at Boalt Hall, predicted the issue would not go away, no matter how much George wants it to.
      "The chief justice certainly is trying to keep it under the covers, but given the fact that the Werdeger committee itself calls for a new committee, it doesn't seem likely the issue will stay buried," Barnett said.
      In 2004, George appointed Justice Kathryn Mickle Werdegar to head a committee to study the criteria justices use to decide which opinions to publish. The committee found that most lawyers favor changing the rule on citation, and most appellate justices oppose it.
      The committee recommended the court consider appointing a committee to evaluate the feasibility of partial publication or de-publication, of expanding the circumstances in which parties can draw appellate court attention to unpublished opinions and review other matters concerning publication of opinions that the committee did not address.
      Based on the committee's findings, the court announced new guidelines beginning in April that favor publication if it establishes a new rule of law, applies an existing rule to significantly different facts or advances a new interpretation of a law or court rule.
      "They made some changes that I think are significant," George said. "I think publications will go up a bit. There are some marginal opinions I think should be published and aren't."
      He said that, after his meeting with Dymally, the assemblyman understood publishing every opinion on every fender bender case wouldn't make sense, because it would require lawyers to read them all "to find the needle in the haystack."
      "It would be pointless to have 12 times as many published opinions," George said. "Now, the California Courts of Appeal are publishing 8 percent. If we went to 100 percent, every lawyer, law clerk and judge would have 12 times as many cases in sets of volumes or on line to sift through."
      Ken and Michael Schmier, brothers and lawyers who practice in Emeryville, have been on a long campaign to change the rules on citing unpublished opinions. They thought they had a good chance this year to pressure George to change his mind on the issue after the federal judiciary changed its citation rules late last year.
      But George's persuasive powers prevailed, as they had in 2004 when he urged Sen. Sheila Kuehl, D-Santa Monica, to drop a bill she carried in favor of a study that came to fruition under Werdegar's leadership.
      "Justice George continues his many years of lobbying members of the Assembly and Senate Judiciary committees, not only supporting this rule but also telling legislators that the constitutional doctrine of 'separation of powers' requires legislators to stay out of judicial branch affairs such as rule making," Michael Schmier said.
      In support of George's efforts, Justice Vaino Spencer of the 2nd District Court of Appeal in Los Angeles, wrote to Dymally in late May telling him of Judicial Council hearings in 1980, which she chaired on the subject of unpublished opinions. The committee recommended retaining the policy existing at that time.
      "After more than 26 years of experience as an appellate justice, I continue to strongly support the current system, which limits citation of opinions," she wrote.
      Barnett said it was time for a new study.
      "I thought that letter was rather absurd in its reliance on a decision reached 25 years ago, given the federal courts' reversal and the whole technological revolution," he said.
      Spender said she was not relying strictly on the study she was involved in. She said that at least three other studies, and recent ones, came to the same conclusions her committee made.
      Proponents of citation of unpublished opinions overlook the fact that each opinion, even unpublished ones, makes references to published cases, Spencer said.
      "Every opinion that is filed contains and is based upon published opinions, so why don't those people merely cite those cases?" she asked. "And the chief justice has really looked into this repeatedly."
      George cited two key differences between California's courts and federal courts.
      "We have a much larger system," he said. "We're twice the size of the Article III judiciary. We have 1,650 judges and 450 commissioners. The entire federal judiciary is 800 to 900 judges. We also have a requirement in our constitution that all opinions be in writing with reasons stated. So we can't have a short per curium one or two paragraphs as they do in federal court."
      The chief justice said he has vastly improved the Supreme Court's de-publication rate, which hovered above the rate of cases it accepted for review in 1991 and now is 20 a year.
      "It doesn't make sense for us to reinvent the wheel if the law is well-established and someone writes an aberrant opinion," George said.
      The Schmiers said someone who is the target of a bad appellate opinion has no recourse. The Supreme Court selects the cases it wishes to review, but many are rejected.
      Ken and Michael Schmier said they intend to bring a federal civil rights suit over the citation issue, contending they have been deprived of their civil rights by people acting under color of state law.
      "It's a violation of free speech, and that's what [U.S. Supreme Court Justice Samuel] Alito said in the committee report that everyone voted on," Ken Schmier said.
      He has brought two prior suits in California courts over the citation rule, but the courts dismissed them.
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