No. 00-
In The
SUPREME
COURT OF THE UNITED STATES
Michael Schmier; Petitioner
vs.
SUPREME COURT OF CALIFORNIA,
CALIFORNIA COURTS OF APPEAL,
AND CALIFORNIA JUDICAL COUNCIL; Respondents
On Petition For Writ Of Certiorari
To The Court Of Appeal Of The State Of California,
First Appellate District, Division Five
Petition For Writ of
Certiorari
Kenneth J. Schmier
Counsel of Record
1475 Powell Street, Suite 201
Emeryville, CA 94608
Telephone: (510) 652-6086
Attorney for Petitioner
Michael Schmier
1.
May
a statutory scheme allow a judiciary the unfettered discretion to make its
appellate decisions selectively prospective, vary rules of law on an ad hoc basis, and render the doctrine of
stare decisis nugatory?
2.
Does
a statutory scheme which forbids litigants, on pain of contempt, from
mentioning rules of law, applications of rules of law to facts, and legal
reasoning contained in pertinent previous decisions, which would relieve any of
these litigants of criminal or civil liabilities, violate the Constitutional
right of free speech or the right to petition government for a redress of
grievances?
Griffith v. Kentucky, 479 U.S. 314
(1987)
.
11
Alicia T. v. Los Angeles, 222 Cal.
App. 3d 869 (1990)
.16
U.S. Const. amend. XIV, §
1
...
1,10
CONSTITUTIONAL
AND STATUTORY PROVISIONS INVOLVED
A. Procedural History and Presentation
of Federal Question
B. Factual Background:
The Rules and Their Lack of Mandatory Standards
C. The Arbitrary Application of the
Nonpublication Rules
Desist v. United States, 394
U.S. 244 (1969)
.
12
Harper v. Virginia Dept. of
Taxation, 509 U.S. 86 (1993)
.
11
James B. Beam Distilling Co.
v. Georgia, 501 U.S. 529 (1991)
..8,11
Planned Parenthood v. Casey,
503 U.S. 833 (1992)
...10
Raines v. Byrd, 521 U.S. 811
(1997)
..
18
Southeastern Promotions,
Ltd. v. Conrad, 420 U.S. 546 (1975)
.
16
STATE
Blank v. Kirwin, 29 Cal 3d
311 (1985)
6
28 U.S.C. §
1275(a)
.
.1
Cal. Rules of Court 976,
977, 978, & 979 (West 1999)
..passim
Julia Hayward Biggs, Note, Censoring the Law in
California: Decertification
Revisited, 30 Hastings L. J. 1577
(1979)
..
6
California Judicial Council,
1999 Annual Court Statistics Report 31
..7
Robert S. Gerstein, Law by Elimination: Depublication in the California Supreme
Court,
67 Judicature, Dec.-Jan. 1984. 293
(1984)
.
..6
Gerald F. Uelman, Publication and Depublication
of California Court of Appeal Opinions:
Is the Eraser Mightier than the Pencil, 26 Loy. L.A. L. Rev. 1007
(1993)
.
6
The Fifth Division of the California
First District Court of Appeal issued its opinion on February 28, 2000. App. 1-13.
This Opinion was reported at 78 Cal. App. 4th 703. On March 22, 2000, the California Court of
Appeal denied petitioner's request for rehearing. App. 14. On May 24, 2000,
the California Supreme Court denied review.
App. 15.
The Fifth Division of the
California First District Court of Appeal issued its opinion on February 28,
2000. The Court of Appeal denied
petitioner's timely request for rehearing on March 22, 2000. The order of the California Supreme Court
denying review was filed on May 24, 2000.
This Court has
jurisdiction pursuant to 28 U.S. C. § 1257(a).
1. The
First Amendment to the United States Constitution provides in pertinent part
that, "Congress shall make no law . . . abridging the freedom of speech, .
. . and to petition the government for a redress of grievances."
2. Section
1 of the Fourteenth Amendment to the United States Constitution provides, in
pertinent part that "No State shall . . . deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws."
3. This
petition involves the constitutionality of California Rules of Court 976
through 979 (West 1999), which are summarized herein in the Statement of the
Case, and the full text of which are set out in full in the Appendix to this
petition. App. 16-21.
Petitioner
Michael Schmier (hereinafter "petitioner"), individually and for all
persons similarly situated in the State of California, brought an action
against defendants The Supreme Court of California, California Courts of Appeal
and the California Judicial Council (hereinafter collectively referred to as
"respondents"), seeking injunctive and other relief. CT 1-14.
Petitioner alleged in his complaint that Rules 976 through 979 of the
California Rules of Court ("the non-publication rules") were invalid
because, inter alia, they violate the
federal Constitutional rights to equal protection, due process, freedom of
speech and right to petition the government for redress of grievances. CT 5.
The trial court sustained respondents' demurrer to the complaint and
this ruling was upheld by the California Court of Appeal. App. 1-13.
California's
nonpublication rules, like those of many jurisdictions, limit which opinions
issued by the appellate courts will be given precedential effect. Absolutely nothing restrains the courts'
discretion to choose which opinions shall be applied in the future versus those
that will apply only to the parties before the court.
These rules create a
scheme whereby appellate courts can make "new law" or create
conflicts with established law without having to make this new law
available or applicable to future litigants or the public. Rule 976(b). The courts are not bound to apply this new law in future cases
but can disregard it, since under the Rules of Court, such "new law"
is not binding precedent. (Rule 977(a).
Indeed, the rules mandate that a court not rely on this "new
law" in future cases, and no future litigants may cite it as binding
precedent, or even persuasive authority.
Rule 977(a). By virtue of this
rule, such "new law" is not really "law" at all. It is not uniformly applicable to all, as
laws must be.
Under Rule 976(b),
no opinion of a Court of Appeal or an appellate department of a superior court
may be published unless it:
(1) establishes a new rule of law, applies an
existing rule to a set of facts significantly different from those stated in
published opinions, or modifies, or criticizes with reasons given, an existing
rule;
(2) resolves or creates an apparent conflict
in the law;
(3) involves a legal issue of continuing
public interest; or
(4) makes a significant contribution to
legal literature by reviewing either the development of a common law rule or
the legislative or judicial history of a provision of a constitution, statute,
or other written law.
The objectionable portion of this rule is contained in the
prefatory language: it clearly indicates that publication is never required,
even for opinions which meet one of the four listed criteria. Thus, the courts have been granted the
ability to make "new rules of law" without publishing those laws to
the public who will be subject to them.
Under Rule 977(a), any
opinion which is not ordered published may not be cited or relied on by any
court or party in any other proceeding.
Rule 976 precludes any party from
bringing to a court's attention any unpublished opinion under any
circumstance,[1] regardless
of how pertinent that opinion may be,
regardless of whether that opinion established new rules of law about which the
party wishes to apprise the court, and regardless of whether the rule of law
set forth in that opinion would relieve that party from criminal or civil
liability. Indeed, this rule
prevents a court from ever relying on such an opinion as authority. Rule 977(a) thus ensures that cases deemed
not published under Rule 976 are made nullities.
Rule 978 provides for a
procedure whereby any person may request publication of an opinion not
certified for publication. Rule
978(a). However, the ultimate decision
on whether to publish lies within the complete discretion of the Supreme
Court. Rule 978(b). Thus,
no matter how much a particular unpublished case may change the law, or fail to
follow the law, there is never any circumstance under which it must be
published and thereby become precedent for the courts to follow in future cases
and for the public to use to conform their behavior to the law.
Rule 979 provides for a
procedure whereby opinions that have been certified for publication can be
"depublished" and thus made not binding precedent. Through
depublication, the Supreme Court can make law "disappear" from the
books, although the original litigant in whose case was decided remains subject
to that law.
There are no standards
for when an opinion should be depublished. Most commentators suggest[2]
that depublication is mainly used to make disagreeable precedent disappear, without
having to distinguish or expressly overrule that precedent.
This
action was dismissed upon demurrer before petitioner had any chance to conduct
civil discovery. While the California
Court of Appeal failed to acknowledge the factual allegations of petitioner's
complaint (a basis upon which petitioner sought and was denied rehearing), the court recognized that upon demurrer
these allegations must be accepted as true.
App. 3, citing Blank v. Kirwin, 29 Cal. 3d 311, 318 (1985).
Petitioner made the
following factual assertions in his complaint: that numerous demands have been
made on the Courts of Appeal and the Supreme Court to publish opinions, which
demands have been denied; that there is a lack of even-handedness in treatment
of similarly situated litigants; and that criminal defendants have been
deprived of the ability to cite cases which would otherwise be favorable or
controlling. CT 3-4, 6-7, 8-9,
237-38.
The record also indicates
that petitioner further alleged: that unpublished opinions have been issued
which contained new legal holdings, inconsistent with binding precedent, which
were applied only to the litigants involved in that case and not to future
litigants; that because of the rules, California courts have decided cases on
an ad hoc basis, without regard to
precedent; that courts have abused the discretion granted by the rules by
creating new liabilities or eliminating prior defenses, without announcing
these changes in published opinions; and that courts decide whether to publish
arbitrarily and without any rational grounds to do so. CT 115, 117, 122, 140, 230, 232-35.
Respondent California
Judicial Council's own statistics reports powerfully demonstrate the overuse of
the nonpublication rules. Far from
simply weeding out the trivial or unimportant cases, these rules operate to
prevent the citizens of California from accessing and citing the vast majority
of law as declared and interpreted by the appellate courts. In 1997-98, the percentage of unpublished
cases statewide was a remarkable 93%, with 87% of civil appeals not published
and 96% of criminal appeals not published.
California Judicial Council, 1999 Annual Court Statistics Report,
at 31. The rate of publication in some
districts was even lower, with only 2%
of the criminal appeals being published.
See id.
Petitioner herein
challenges Californias non-publication rules. As will be addressed below,
these rules work together to create a system not to be tolerated by sound
constitutional principals and basic doctrines of fairness and justice. Such rules eviscerate the system of stare decisis and the principle of equal
protection of the laws upon which our democracy is based.
California's rules are
particularly egregious in that they contain no restriction whatsoever on
the exercise of this judicial power.
Instead, courts remain free to apply the law in an arbitrary and ad hoc manner. Indeed, these rules forbid those who would seek to have the law
applied in an evenhanded manner from
even mentioning this unequal treatment, on pain of contempt. Such an
unbridled exercise of raw governmental power cannot stand.
The
non-publication/non-citation rules produce a scheme in which courts fashion new
rules of law applicable to single cases, creating classes of one. This type of "selective
prospectivity" is unconstitutional absent certain safeguards not found
here. See James B. Beam
Distilling Co. v. Georgia, 501 U.S. 529 (1991).
Here, nothing
guides or restrains the use of selective prospectivity. Courts are allowed to apply new rules of law
or refuse to apply settled ones on an arbitrary and ad hoc basis. Nothing
mandates that the courts publish these decisions or apply them to future
similarly situated litigants. Indeed,
similarly situated litigants are barred from even mentioning such prior
cases.
Beyond the legal challenge, petitioner seeks
clarification of several issues raised by the application of these rules:
(1) how can equal protection of law exist
where courts have no institutional memory of the manner in which the law is
applied in similar cases;
(2) how can the public be presumed to know
the law when the courts have no obligation to make the law public;
(3) how can the public be certain that its
judges correctly and honestly state the law when rulings and opinions are not
made public for review and criticism;
(4) how can the electorate ask its elected
legislators to correct the law if the law as applied is unknown; and
(5) to what effect is the doctrine of equal
protection of the law, if law can be applied to an individual without
immediately causing others that would be affected to complain on that
individuals behalf, when the rule is unconstitutional, illegal or unjust?
This
case presents questions of vital importance to the millions of individuals
affected by California's nonpublication rules, similar rules in seven of the
United States District Courts of Appeals, and approximately half of the state
judiciaries. The rules challenged in
this petition are powerfully corrosive of equal protection, freedom of speech,
the rule of law, and many other of the doctrines that form the very core of our
democratic form of government.
This Court should grant
this Petition to examine the constitutionality of these rules and to explain to
the citizenry how such an arbitrary and unfettered exercise of judicial power
can be justified in light of the guiding principles of our democracy. Questions of alternatives, resource
availability, criminal appeals, or even the desire of the American people for a
system accountable to the Rule of Law over the more facil ad hoc arbitration of disputes cannot be measured until the issues
are brought to the forefront for public consideration.
All individuals are
entitled to due process and to equal protection of the laws. U.S. Const., amend XIV, § 2. Equal protection and due process rest on the
doctrines of precedent and stare decisis,
because all citizens before the court are guaranteed to be subject to the same
laws. As this Court declared:
"[N]o judicial
system could do society's work if it eyed each issue afresh in every case that
raised it. [Citation]. Indeed, the
very concept of the rule of law underlying our own Constitution requires such
continuity over time that a respect for precedent is, by definition,
indispensable." Planned
Parenthood v. Casey, 505 U.S. 833, 854 (1992) (emphasis added).
The non-publicationrules
run afoul of equal protection and due process by creating a system of
"selective prospectivity" wherein the courts create new rules of law
which will apply to one case and one case only. This Court has utterly rejected "selective
prospectivity" as unconstitutional in both criminal and civil cases.
This Court first
dispensed with selective prospectivity in the criminal arena in Griffith v.
Kentucky, 479 U.S. 314 (1987). In
that case, the court held that "failure to apply a newly declared
constitutional rule to criminal cases pending on direct review violates basic
norms of constitutional adjudication."
Id. at 322. This Court reasoned that "selective
application of new rules violates the principle of treating similarly situated
defendants the same." Id.
at 324.
Four years later, this
Court rejected "selective prospectivity" in the civil context. See James B. Beam,, 501 U.S. 529; see also Harper
v. Virginia Dept. of Taxation, 509 U.S. 86 (1993). While this Court
recognized that new rules of law may or may not be given retroactive effect,
once a Court has applied the law retroactively to one litigant, it must,
as a matter of due process and equal protection, apply that rule to all
litigants. See James B. Beam,
501 U.S. at 535-36.
"[S]elective
prospectivity also breaches the principle that litigants in similar situations
should be treated the same, a fundamental component of stare decisis and the
rule of law generally. [Citation]. 'We depart from this basic judicial
tradition when we simply pick and choose from among similarly situated
defendants those who alone will receive the benefit of a 'new' rule of
constitutional law.'" Id.
at. 537-38, quoting Desist v. United States, 394 U.S. 244, 258-59
(1969).
This Court also stressed
that such a system of "selective prospectivity" undermines the system
of stare decisis which is the
hallmark of our system of justice. See
id. at 540. This concern was elaborated upon by Justice
Blackmun in his concurrence:
"The doctrine of stare decisis profoundly serves
important purposes in our legal system.
Nearly half a century ago, Justice Roberts cautioned: 'Respect for
tribunals must fall when the bar and the public come to understand that nothing
that has been said in prior adjudication has force in a current controversy.'
[Citation]. . . . By announcing new rules prospectively or by applying them
selectively, a court may dodge the stare
decisis bullet by avoiding the disruption of settled expectations that
otherwise prevents us from disturbing our settled precedents. Because
it forces us to consider the disruption that our new decisional rules
cause, retroactivity combines with stare decisis to prevent us from altering
the law each time the opportunity presents itself." Id. at 548.
The
non-publication rules allow appellate courts to dodge the stare decisis bullet. The
scheme created by the rules permit courts to apply or refuse application of any
law or rule without restraint.
As
set forth above, petitioner alleged that the lack of mandatory standards for
publication allow the courts to apply new rules of law on an arbitrary and ad hoc basis, thus setting up an
unconstitutional scheme of selective prospectivity. Petitioner specifically alleged that criminal defendants have
been, and can be, deprived of the ability to cite cases which would otherwise
be favorable or controlling. CT 6,
237-38. Because of Rule 977, petitioner
was precluded from citing specific examples of this arbitrary exercise of
judicial power. Indeed, the Court of
Appeal even denied petitioner's request to cite such examples during oral argument.[3] The Court thereby protected itself from
having to hear about the harm it is causing.
How can a citizen petition this branch of government for redress of
grievance if it may choose not to hear of its misconduct?
The Court of Appeal
recognized the perils of selective prospectivity. App. 1-14. However, in coming to the conclusion that the rules
posed no such danger, the court simply ignored the fact that the nonpublication
rules lack any mandatory
standards for publication. Instead the court simply assumed, without
reference to any supporting evidence, that courts are properly selecting cases
for publication according to the criteria set forth in Rule 976(b). Without examining the nature and content of
the 93% of cases which go unpublished, the Court of Appeal simply assumed that
these opinions contributed nothing to the body of stare decisis. The court
instead relied on the fact that it viewed
some unknown percentage of
cases as unworthy of precedential value, such as Wende opinions, appeals on undisputed points of law brought by
nonlawyers in propia persona, and appeals simply urging the court to reweigh
evidence. App. 1-14.
The Court of Appeal
failed to grapple with petitioner's allegations that in numerous other cases, the courts have refused to
publish cases which do declare important and new rules of law, and have
refused, or may refuse, to apply these
new rules of law in future cases because of the provisions of Rule 977. The Court of Appeal further failed to
correct this omission upon petitioner's request for rehearing. App. 14.
The danger posed by these
rules is that they impose no restrictions whatsoever on the courts' discretion to make the rules of law set forth
in those cases applicable to all. The
ultimate decision whether to make law generally applicable lies in the complete
and unfettered discretion of the Supreme Court to order publication or
depublication of a particular case.
Rule 976(c)(2). There are no
restrictions whatsoever on this decision.
The very point of our
constitutional system of checks and balances, and of the guarantees of equal
protection and due process, is that no branch of government may be trusted to
police itself. Because the
nonpublication rules allow selective application of law to those similarly
situated these rules cannot be allowed to stand. Moreover, because these rules allow the judiciary to make a
specially chosen subset of its rules generally applicable to the public, and to
remove others from general applicability, outside of the determination of a
case or controversy, the judiciary has granted to itself an authority
duplicative of that granted by the constitution to the legislature and thereby
offend the very principles of separation of powers and the Rule of Law upon
which our society is based.
Rule
977 is the essential evil in the selective publication scheme. It is this rule which makes precedent
"disappear." Without Rule
977, arguably the other rules simply implement the court's right to determine
which cases are published in a book entitled the "Official Reports"
pursuant to contract. Absent any
restriction on the citation of other opinions as precedent, such rules
might be constitutional. What offends
the constitution is the mandate that cases which are not published in the
"Official Reports" are to be treated as if they don't exist, and the command
that parties and attorneys not bring the law of these cases to the attention of
any court, on pain of contempt.
This rule impermissibly
infringes on freedom of speech by creating an unconstitutional prior
restraint. U.S. Const., 1st Amend.,
Cal. Const., art. I, § 2. Any system of
prior restraint bears "a heavy presumption against its constitutional
validity." Southeastern
Promotions, Ltd. v. Conrad, 420
U.S. 546, 558 (1975). Here, Rule 977 is
absolutely a prior restraint -- it commands litigants and attorneys not to
speak a word about any unpublished case, no matter how relevant that case may
be to the matter at hand and no matter how necessary to the administration of
even-handed justice. Indeed, any attorney who even mentions such
unpublished authority risks being sanctioned by the California courts. See Alicia T. v. Los Angeles,
222 Cal. App. 3d 869, 884-86 (1990)
(attorney sanctioned in part for relying on depublished opinion in opening and
reply briefs).
Despite the fact that
petitioner raised the free speech argument in his briefing and in the trial
courts (CT 5), the Court of Appeal offered no justification for this prior
restraint either in its opinion on petitioner's request for rehearing. App. 1-14.
Instead, the Court of Appeal sidestepped the issue, stating that ban on
citation to unpublished opinions means "nothing more than that they cannot
be cited as precedent by other litigants who are not parties
thereto." App. 11-12.
What is this, if not a
restriction on speech? The court's reasoning defeats all the elegant
protections of the doctrine of stare
decisis. A rule prohibiting any
litigant from apprising a court when it is failing to follow its own precedent
is antithetical to the rule of law. Such rules sacrifice our cherished
constitutional freedoms for the convenience of attorneys and courts and cannot
withstand constitutional muster.
Finally, petitioner has
standing to challenge these rules. In
coming to the conclusion that petitioner did not allege a real and concrete
injury, the court ignored the facts alleged by petitioner, and did not correct
this fact upon rehearing. App. 4-5, 14.
Petitioner alleged that
he had standing to challenge the rules, in that he had suffered concrete and
particularized harm as both a citizen and an attorney. CT 241-42.
Petitioner alleged that as a citizen, he is entitled to know and apprise
himself of the laws of this state. The
publication rules allow the courts to make "secret law" which may
imminently subject petitioner to criminal or civil liability, and petitioner
has no access to this secret law. CT
241. Moreover, Rule 977 concretely
impacts petitioner's free speech rights, in that he cannot cite unpublished
cases which would relieve him from civil or criminal liability, or otherwise
support his contentions. CT 241.
Because petitioner is a practicing
attorney, this rule directly interferes in his ability to practice his
profession, to determine what the law is and to accurately advise his
clients. CT 242. Finally, Rule 977 deprives petitioner of any
realistic method to invoke the Rule of Law to control the obstinate rule of
men.
Petitioner's allegations
show that he has a personal stake in this dispute, that the injury he has
suffered as a result of these rules, both as a citizen and as an attorney, is
both concrete and particularized, and this injury is capable of resolution
through the judicial process. See
Raines v. Byrd, 521 U.S. 811, 818-19 (1997). Petitioner has standing to contest these rules on his behalf and
on behalf of all persons similarly situated.
For the foregoing reasons,
petitioner requests this Court grant the petition for a writ of certiorari.
DATED: August 22, 2000 Respectfully submitted,
Kenneth
J. Schmier
Counsel
of Record
1475
Powell Street, Suite 201
Emeryville,
CA 94608
Telephone:
(510) 652-6086
Attorney
for Petitioner
Michael
Schmier
[1] The rule contains limited
exceptions which do not affect the analysis.
Rule 977(b).
[2]
See, e.g., Gerald F. Uelman,
Publication and Depublication of California Court of Appeal Opinions: Is the
Eraser Mightier than the Pencil, 26 Loy. L.A. L. Rev. 1007 (1993); Robert
S. Gerstein, "Law by elimination:" depublication in the California
Supreme Court, 67 Judicature, Dec-Jan. 1984, at 293-298 (1984); Julie Hayward Biggs, Note, , Censoring the Law
in California: Decertification Revisited, 30 Hastings L.J. 1577 (1979).
[3] Petitioner's case was
dismissed on demurrer, before he had the chance to conduct discovery. However, petitioner was prepared to cite
cases in which courts set forth new rules of law, or construed statutes to
relieve parties of civil or criminal liability, which by virtue of their
unpublished status would not be applied in future cases. For example, in one case, the Fourth District
construed a statute barring the infliction of unjustifiable mental suffering on
a child to not apply to situations where parents leave
"latch-key" children home alone.
App. ____. "To so
hold" the court noted, "would be to brand thousands of employed couples
and single parents as common criminals. It is
justifiable to leave these children alone on occasion because, as we shall
explain, there is often no other way."
App. ___. The Court noted that
there was not a single California case on point. App. ___.
Yet, this groundbreaking decision was marked "Not to be
Published" thus precluding those "thousands" of parents from
locating this authority to determine how to conform their behavior to the law
or from citing this case to courts should they be prosecuted in the
future. Indeed, prosecuting authorities
in California remain free to prosecute parents under this statute in the future
for the identical conduct in which Ms. Kamiyama engaged, and no person
may cite this case to relieve themselves form criminal liability. Thousands of parents remain under the cloud
of criminal liability for conduct which one appellate court found could not be
deemed criminal. By not publishing this
groundbreaking case, which clearly met the standards for publication in Rule
976, the Court of Appeal made its ruling as to Ms. Kamiyama "selectively
prospective" since no future litigant could take advantage of it.