July 21, 2009


Some people are vexatious litigants, and others are just guys who file lots of suits. Kenneth Schmier might be the latter.

In a brief filed with the San Francisco federal court Monday, the Emeryville lawyer tried to fend off a judge’s wrath by citing a 2007 Ninth Circuit U.S. Court of Appeals ruling that enunciated the factors used to determine whether someone is a vexatious litigant.

“As the Ninth Circuit has instructed,” Aaron Aftergood, Schmier’s Los Angeles-based lawyer, wrote, “'the simple fact that a plaintiff has filed a large number of complaints, standing alone, is not a basis for designating a litigant as “vexatious."’” 

What's a guy gotta do to be vexatious around here?  After the jump ...


U.S. District Judge William Alsup put Schmier on notice last week that he might order him to get the court’s prior permission before filing any more suits seeking to cite unpublished rulings issued by California appellate courts.

Schmier and his attorney brother, Michael, have been trying for years to overturn the state’s ban on the use of unpublished rulings. And Alsup was perturbed that in pursuit of that goal, Schmier has either been the lawyer or plaintiff in three prior complaints in state court and one in the Ninth Circuit U.S. Court of Appeals.

But Schmier says those suits shouldn’t count against him.

“No prior case on this issue has even found standing,” his lawyer wrote in Monday’s brief, “let alone reached a finding on the merits.”

In fact, he pointed out, the Ninth Circuit “invited” Schmier to bring a case in the federal district courts. He also argued that Schmier wasn’t forum shopping — as Alsup suggested last week — because the defendants, the California Supreme Court and the Judicial Council, are located in San Francisco.

Schmier’s lawyer got oratorical in his summation (sounding a bit like Schmier had written the brief himself).

“Given the costs of mankind’s struggle to establish the rule of law,” he wrote, “and the gravity of the concerns not only expressed by plaintiff but by the committees comprised of the leadership of the United State judiciary, plaintiff should be given significant leeway to see the issues he presents thoughtfully addressed.”

You go, Ken!

 Mike McKee