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U.S. SUPREME COURT • Oct. 05, 2007
Rules for Unpublished Opinions Violate Due Process, Suit Says
By Linda Rapattoni
Daily Journal Staff Writer

      An Orange County law firm sued the California Supreme Court and an appellate division Thursday, contending rules barring lawyers from citing unpublished opinions violate due process and equal protection rights.
      The suit appears to be the first to challenge the rules in federal court.
      Bisnar Chase of Newport Beach filed the complaint in U.S. District Court in San Francisco on behalf of a teenager who was blinded in one eye when he was hit by a paintball fired by a power company's employee. Hild v. California Supreme Court, C075107JCS.
      A Los Angeles Superior Court jury awarded $704,633 to the boy, Joshua Hild, 14, of Big Creek, but the defendant, Southern California Edison Co., appealed. A three-justice panel of the 2nd District Court of Appeal rejected the verdict in an unpublished opinion. A petition for review is pending before the California Supreme Court.
      The court has routinely declined review of unpublished decisions in civil cases over the last 10 years, except in "extremely rare" cases where it has previously granted review from a published decision presenting the same issues, Chase's lawsuit said.
      "When you consider the practical effect of this rule, it's dumbfounding that it could have been on the books this long," said Brian Chase, a partner in the four-lawyer firm.
      "It brings the legal process less accountability, less transparency, less uniformity and more opportunities for people to get their day in court only to be ruled against by a secretive-like opinion that is flawed from top to bottom," he said.
      Stephen Barnett, a professor emeritus at UC Berkeley's Boalt Hall and a leading scholar on the court, said he disagreed with Chase's observation of the court.
      "Clearly, they don't do it regularly, but the California Supreme Court has reviewed unpublished opinions on a number of occasions," he said.
      Lynn Holton, a spokeswoman for California Chief Justice Ronald M. George, said the court would have no comment on the suit.
      She pointed out the California Constitution, Article VI, Section 14 states it's up to the courts to decide which opinions they publish.
      "The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and the courts of appeal as the Supreme Court deems appropriate," it says.
      The U.S. Supreme Court last year adopted Rule 32.1 allowing citation of unpublished opinions, which the 9th U.S. Circuit Court of Appeal, whose jurisdiction includes California, had opposed.
      George has repeatedly dissuaded lawmakers from pursuing legislation to allow citation of unpublished opinions.
      However, he appointed committees to study the issue and in April the court adopted new guidelines 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 rule. The former rule contained a presumption against publication.
      George said appellate courts have increased their publication of opinions since the guidelines went into effect. In an interview earlier this summer, he said they had been publishing 8 percent of their opinions.
      George said allowing citation of all decisions would force judges, lawyers and law clerks to sift through 12 times as many cases as they do now.
      California's system is much larger than the federal system and has a constitutional requirement to give a longer reason for each opinion than the one to two paragraphs typical in federal opinions, he said.
      "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 Hild suit alleges the appellate court violated the new guidelines the state Supreme Court adopted when it filed its June 25, 2007, opinion.
      According to the appellate court's description of the incident, Kathy Magdaleno, an employee of Southern California Edison Co., was taking a break while inspecting a water treatment plant in Big Creek, north of Fresno, when she saw some children she knew playing a paintball game.
      She asked if she could borrow one of their guns and asked them to fetch Hild, a close friend of her family and son of a co-worker, saying she wanted to shoot him.
      When Hild saw Magdaleno, he took off his protective facemask and she fired several shots at him, striking him in the right eye, the court papers said.
      Magdaleno apologized to him and described the incident in a handwritten note requested by her supervisor. But, her supervisor destroyed it and she replaced it with a typed statement embellished with "legal terms of art" intended to defend the power company, the suit said. Edison tried to hide the existence of the original statement, the complaint said.
      The jury found Magdaleno had been acting within the scope of her employment when she fired the paint gun, but the appellate court agreed with Edison that it was a prank that had nothing to do with her job duties.
      The opinion was written by Justice Roger Boren, who was accompanied on the panel by Justices Victoria M. Chavez and Judith Ashmann-Gerst. Fellow Justice Vaino Spencer, a vocal supporter of the no-citation rule, did not participate in the decision.
      Hild's suit said the opinion "dramatically broke new ground" holding the facts of the unintentional accident were "indistinguishable as a matter of law" from rape/sexual battery and intentional tort cases.
      The appeals court "offered no explanation whatsoever as to how or why the scores of other cases cited by plaintiff, which plainly conflicted with its decision, were or are 'distinguishable,'" the suit said.
      Ken Schmier, an Emeryville lawyer who with his lawyer/brother Michael Schmier, have waged a campaign to change California's citation rules, said Hild was caught in the same trap as he and others have been.
      "You get an opinion that doesn't appear to represent the law of California, it can't be cited as law again and is therefore suspect, and you're stuck with it," Schmier said. "Our position is whenever an appellate decision doesn't stand as law for everyone, its reasoning must be suspected."