Two days before oral argument the Hon. Roger Boren , Presiding Justice of California Court of Appeal District Two, Division Two , ordered Jennings v. Schmier off calendar with out any reset date and, in a maneuver itself totally unprecedented, kept the case off calendar for over 5 months before resetting the case for oral argument. He then wrote a decision resolving the matter according to numerous principles of contract law obviously conflicting with basic concepts of California contract law. The opinion cited no authority for these numerous and vast departures from existing law. The opinion was described by Richard Jacobs, former chief deputy of the office of the California Attorney General, and now private appellate counsel, as "unsupportable on any basis".
The appellant, attempting to object to this obviously unfair and illegal decision, petitioned the appellate court to either publish the case and make it citeable as law for everyone, or to rehear the case. That court refused to do either, saying, "It is the view of this court that the issues involved are not such that the opinion meets the criteria for publication specified in rule 976" (see infra). Appellant, understandably upset at being charged with a $700,000 judgment by rules of law the appellate court was unwilling to make generally applicable to, or even expose to, the public, asked the California Supreme Court to review the case or publish the opinion as law for the entire state. The California Supreme Court refused to make the rules of the case have general application and also refused to review the case.
The appellant then petitioned the United States Supreme Court grant a writ of certiorari to address the following question:
In instances where a Court of Appeal designates its opinion "Not To Be Published In The Official Reports" and such opinions may not, by California law, be used prospectively as law in any other case, and where that opinion both fails to follow established precedent and also uses novel rules of law to decide the case, does this system of selective publication violate the Equal Protection Clause of the United States Constitution?
The United States Supreme Court denied the writ as it does to most of the 7,000 applications it receives each year.Here is the record of the case for your independent determination of the assertions made herein.