No. 00-




In The





Michael Schmier;    Petitioner










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?








table of authorities. 5



Griffith v. Kentucky, 479 U.S. 314 (1987)…………………………………….………………11. 5

Alicia T. v. Los Angeles, 222 Cal. App. 3d 869 (1990)……………………………………….16. 5


U.S. Const. amend. I…………………………………………………………………………1,16. 5

U.S. Const. amend. XIV, § 1………………………………………………...………………1,10. 5







A.       Procedural History and Presentation of Federal Question. 7

B.       Factual Background: The Rules and Their Lack of Mandatory Standards. 8

1.    Rule 976. 8

2.    Rule 977. 9

3.    Rule 978. 9

4.    Rule 979. 9

C.       The Arbitrary Application of the Nonpublication Rules. 10



A.       "Selective Prospectivity" Violates the Constitutional Guarantees of Equal Protection and Due Process. 12

B.       The Non-Publication Rules Set Up a System of Unconstitutional "Selective Prospectivity" by Permitting Courts to Apply Rules of Law on an Arbitrary and Ad hoc Basis, Without any Check on Their Exercise of Power. 13






table of authorities






Desist v. United States, 394 U.S. 244 (1969)……………………………………….…………12

Griffith v. Kentucky, 479 U.S. 314 (1987)…………………………………….………………11

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




Alicia T. v. Los Angeles, 222 Cal. App. 3d 869 (1990)……………………………………….16

Blank v. Kirwin, 29 Cal 3d 311 (1985)…………………………………………………………6




U.S. Const. amend. I…………………………………………………………………………1,16

U.S. Const. amend. XIV, § 1………………………………………………...………………1,10




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.




A.        Procedural History and Presentation of Federal Question


            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.



B.         Factual Background: The Rules and Their Lack of Mandatory Standards          


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. 


            1.         Rule 976


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. 


            2.         Rule 977


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.


            3.         Rule 978


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.


4.         Rule 979


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.


C.        The Arbitrary Application of the Nonpublication Rules


            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 California’s 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 individual’s 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.




A.        "Selective Prospectivity" Violates the Constitutional Guarantees of Equal Protection and Due Process.


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.


B.        The Non-Publication Rules Set Up a System of Unconstitutional "Selective Prospectivity" by Permitting Courts to Apply Rules of Law on an Arbitrary and Ad hoc Basis, Without any Check on Their Exercise of Power.


            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.