Alsup OKs No-Citation Rule, Denies Sanctions

The Recorder

July 29, 2009

SAN FRANCISCO Emeryville lawyer Kenneth Schmier has escaped the vexatious lawyer label for now.

In an order issued Monday (.pdf), U.S. District Judge William Alsup held that it was "premature" to require Schmier to get his permission before being allowed to file any more suits in the Northern District of California.

Alsup also denied Schmier's request to enjoin the California court system from enforcing its no-citation rule for unpublished opinions. Alsup cited the California Supreme Court's "bone-crushing caseload," concluding that "it is worthwhile, as a concession to the shortness of life, to reduce to a manageable level the universe of opinions that the public, counsel and judges must sift to learn the law."

The judge had suggested during a July 16 hearing that Schmier might be abusing the process because he had filed three suits in state court and one in the Ninth Circuit U.S. Court of Appeals on publication rules. "The instant lawsuit, however, is plaintiff's first action challenging California's no-citation rule in federal court ... and his prior action in federal court challenging the Ninth Circuit's analogous no-citation rule did not result in a ruling on the merits," Alsup wrote.

The judge went on to hold that Schmier has now fully litigated the issue in the Northern District and that an order preventing him from filing further suits as requested by the attorney general's office "may well become appropriate if further similar actions are forthcoming."

Schmier and his brother Michael, also a lawyer in Emeryville, have been trying to overturn the no-citation rule for years. In an e-mail to The Recorder , Kenneth Schmier indicated he will seek review in the Ninth Circuit. He also said Alsup's ruling "seems to set up the question whether a no-citation rule can be justified on any basis whatsoever."

The order came in Schmier v. Justices of the California Supreme Court, 09-02740.