Publishing Policy Challenged
By Laura Ernde 
Daily Journal Staff Writer

The latest in a series of court challenges to a California court policy allowing unpublished opinions appears to be doomed.

A 9th U.S. Circuit Court of Appeals judge said at oral argument Tuesday that the court is powerless to review the due process questions raised by an Orange County law firm.

"I don't understand why this case is even here," said Senior Circuit Judge Stephen S. Trott. "There's nothing we can do. There's nothing anybody can do. You have an interesting issue, but it's something over which we have no control."

Bisnar Chase of Newport Beach sued the California Supreme Court in October 2007 on behalf of a teenager who was blinded in one eye in a paintball accident. Hild v. California Supreme Court, 07-05107.

The firm argued that the policy of allowing the state Courts of Appeal to decide whether a decision will be published and citable as precedent violated Hild's constitutional rights because it created obstacles that made it more difficult for him to appeal his case.

The 2nd District Court of Appeal, in an unpublished decision, threw out a $704,000 jury verdict against Southern California Edison Co., whose employee caused the accident.

The California Supreme Court rarely reviews unpublished opinions. In fact, the high court ultimately declined to take up the case shortly after the federal case was filed.

U.S. District Judge Thelton Henderson dismissed the case as moot, and Tuesday's three-judge 9th Circuit panel seemed inclined to agree with him.

Attorney Steven Meeks of Bisnar Chase argued that the 9th Circuit could still decide whether the state's publication rule is constitutional.

But District Judge Carlos Bea said that's only the case if there's likely to be a repeat of the paintball accident.

Trott said Bisnar Chase should have gone to the U.S. Supreme Court while the state case was still alive. Meeks said the firm's petition for certiori to the U.S. Supreme Court was denied.

California Chief Justice Ronald George has defended the court's practice of allowing unpublished opinions, saying that it would clog the appellate courts and overwhelm judges if every opinion was citable as precedent. The California Constitution allows the courts to decide which opinions to publish.

Other recent lawsuits challenging the policy have also been rejected by the state and federal courts.

In July, U.S. District Judge William Alsup rejected Emeryville lawyer Kenneth Schmier's request to block the California courts from enforcing the no-citation rule for unpublished opinions.

Schmier has also tried and failed three times in state court lawsuits.