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policy allowing unpublished opinions appears to be doomed.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The 2nd District Court of Appeal, in an unpublished decision, threw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The California Supreme Court rarely reviews unpublished opinions.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
Attorney Steven Meeks of Bisnar Chase argued that the 9th Circuit
could still decide whether the state's publication rule is
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practice of allowing unpublished opinions, saying that it would clog the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