LA/SF Daily Journal

Can We At Least Call Him a Persistent Litigant?

July 28, 2009 10:40 AM

Ken Schmier has lost his latest bid to force the California courts to publish all of its appellate opinions. But U.S. Judge William Alsup stopped short of declaring Schmier a vexatious litigant, as the California Supreme Court had requested. 

Although Schmier has unsuccessfully challenged the court’s policy of issuing unpublished opinions that can’t be cited as precedent three times, each of those lawsuits were filed in state court. Since this was the first time Schmier challenged California’s no-citation rule in federal court, Alsup said he would not require Schmier to get permission before filing future lawsuits.

In an order filed late Monday, Alsup rejected Schmier’s claim that the rule violates the First Amendment’s right to free speech. Alsup said the courts have legitimate reasons for limiting the number of opinions that can be citable as precedent. "Given the sheer volume of the state's caseload -- there are 600-plus trial judges in Los Angeles County alone -- it is worthwhile, as a concession to the shortness of life, to reduce to a manageable level the universe of opinions that the public, counsel and judges must sift to learn the law,” Alsup wrote. Schmier will likely appeal Alsup’s ruling to the 9th U.S. Circuit Court of Appeals.