Blasts 'Forum Shopping' in Publication Case
By Mike McKee
July 17, 2009
SAN FRANCISCO - Looking for a sympathetic ear for his efforts to force
California appellate courts to allow citation of unpublished rulings,
Emeryville lawyer Kenneth Schmier instead Thursday got an earful.
Or rather the attorney representing him did. Schmier wasn't in court.
U.S. District Judge William Alsup sharply accused Schmier - who with his
brother, Michael, has had three similar suits in state courts and one in
the Ninth Circuit U.S. Court of Appeals - of "forum shopping." He said
he will consider whether Kenneth Schmier, who is the plaintiff in
Thursday's case and the attorney in most of the state court cases, has
abused the court process.
"It seems to me he's got enough of a grievance to have standing,"
said, "but what bothers me is that he's been flooding the courts with
Schmier's complaint - which named the justices of the California Supreme
Court and the members of the Judicial Council, among others - sought an
injunction that would let him cite three unpublished rulings by the
Orange County Superior Court's appellate division that he felt could
help him win a client's red light-running case in Orange County traffic
court. He claimed that state Rule of Court 8.1115, which authorizes
unpublished rulings and restricts their citability, denies his free
speech and due process rights.
In court Thursday, Alsup denied the injunction sought in Schmier v.
Justices of the California Supreme Court , 09-2740 , and demanded to
know why Schmier hadn't sought relief in Los Angeles federal court. He
said it seemed like an attempt to find a federal court far from the fray
that might "bite" on arguments already raised unsuccessfully four
"Why'd you come up here?" Alsup demanded, giving Aaron Aftergood,
Schmier's lawyer, until noon Monday to explain in writing why the court
shouldn't find that Schmier abused the process.
Aftergood, of Los Angeles, did his best to answer orally by saying
Schmier doesn't feel he's able to get a fair hearing in state courts and
that he and his brother, who served as the plaintiff in other cases, are
from the Bay Area.
Thomas Blake, the San Francisco-based deputy attorney general who
represented the Supreme Court and Judicial Council at Thursday's
hearing, requested in court papers that Schmier be required to get the
court's future permission to file "any new action concerning the
validity or enforceability of the California publication rules."
Blake said later that he was satisfied with the hearing.
Schmier, contacted by telephone, said he filed in the Northern District
of California because he had been advised that San Francisco was the
proper venue to file suits against the Supreme Court and because he was
raising a federal issue - "a violation of the First Amendment of the
United States Constitution."
He said he is "in no way a vexatious litigant" and is concerned that
courts will "use whatever power they have to protect this rule from
Schmier said he has determined "that the purpose of no-citation rules is
to give a very small group of people a stranglehold on the law."
Getting the courts to repeal nonpublication rules has been a mission for
the Schmier brothers for about a dozen years. Michael Schmier ran
unsuccessfully for attorney general in 1998 with that issue as his sole
Their campaign has had more success in federal courts. In 2006 Congress
passed a law allowing unpublished federal court rulings to be cited.
They also point to a 2005 memo by now-U.S. Supreme Court Justice Samuel
Alito in which he opines that no-citation rules "are no longer
However, California Chief Justice Ronald George has shown no interest in
allowing citations to unpublished rulings.
On Thursday, Alsup showed some sympathy even as he noted the many lost
challenges in state court.
"Maybe it would be better to allow publication" of all cases, he
but the question is "whether the Constitution prevents the state of
California" from having a no-citation rule.
Michael Schmier, who attended Thursday's hearing, accused the courts of
trying to manage precedent.
"You do not have a right to manage precedent," he said after the
hearing, "any more than you have the right to manage the news."