Less law is better then more, Mr. Schmier

Marin Independent Journal

January 11, 2000

By: Albert Bianchi

Kenneth Schmier, a Bay Area developer and attorney, has urged the Marin County Board of Supervisors to recommend a change in the rules which allow the non-publication of some decisions handed down by the California Court of Appeal.

With all respect to Mr. Schmier, I must disagree. There are already more than enough rulings.

To begin with, all opinions of the Supreme Court of California are published, so there is no problem about that. The issue involves only the California Court of Appeal, an intermediate body which has some 90 justices churning out decisions by the score.

Occasionally, some of those decisions are in conflict with one another, and some may be just plain wrong. But, what of it? The legal system will never be perfect, regardless of how many decisions are published.

The point is, the vast majority of opinions rendered by the Court of Appeal, whether right or wrong, deal with ordinary, garden-variety, standard-brand situations for which there already are plenty of precedents on the books.

In my office, the thousands of published decisions of the state appellate courts take up almost 180 running feet of shelf space. Each new book costs a small bundle. In addition, we have access to the same materials in our computers. (Notwithstanding that we are in the era of high tech, the duplication is useful, if not essential.)

The total cost boggles the mind. If the other 98 percent from the Court of Appeal also were published, new libraries would need to be built and computer capacity would need to be enlarged, all with little or no little benefit.

It isn't as if someone is trying to "hide the ball." Along with requiring the reporting of all opinions of the Supreme Court, the law says the Court of Appeal must publish any opinion which establishes a new rule of law, applies an existing rule to a set of facts significantly different from those in previous opinions, or gives reasons for modifying or criticizing an existing rule.

Also, publication must be made of any opinion which resolves or creates an apparent conflict in the law, or involves a legal issue of continuing public interest. In short, if it's new or significant, it is published; if it is simply the same old stuff, it isn't.

Mr. Schmier wrote (Marin Voice, Dec. 22): "The rules we vehemently oppose are the rules of our court that say that virtually all of the precedents of our courts. We cannot see the true logic of thin proposition."

Wee, I would say that the "true logic" is that there are plenty of precedents available, and the unpublished decisions which say nothing new are unnecessary, burdensome and costly to lawyers and, hence, to their clients. If, on the other hand, a decision has something to say, it will be published.

And keep in mind that what we are talking about here relates only to the state appellate court; the federal courts pump out and publish even more decisions. Although these do not necessarily serve as precedents for the state rulings, any practicing attorney knows that they must be taken into account when analyzing a legal situation.

Then, even beyond that, there are the innumerable textbooks, law journals articles, legal magazines, bulletins and maybe some newspaper columns. Not to mention reading John Grisham or watching "Law and Order" on the tibe.

Enough , already!


Albert Bianchi is a San Rafael attorney who writes on legal matters every other Tuesday.