KENNETH J. SCHMIER, SBN 62666
JEANNE M. FAHEY, SBN 179114
PATRICE M. BRYMNER, SBN 184275
Attorneys at Law
1475 Powell Street
Emeryville, California 94608
(510)652-6086

Appellant herein challenges California's non-publication/non-citation rules, California Rules of Court 976 through 979. 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.

Beyond the legal challenge, appellant 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?

Various justifications and rationalizations have been asserted over the years for this non-publication/non-citation system. However, each justification must fall when balanced against the rights of individuals and our collective interest in justice. Chief among these justifications is the declaration that a system mandating access to all appellate opinions would overwhelm the courts and create an untenable research burden for litigants and their counsel.

Any inconvenience cannot be of greater interest than equal protection and even-handed application of the law. Alexander Hamilton addressed this very issue in Federalist Paper Number 78 as follows:

It has been frequently remarked, with great propriety, that a voluminous code of law is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them. . . the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.

Respondent Chief Justice Ronald George has been quoted as saying on numerous occasions that Rules 976-979 are "a necessary evil." (San Francisco Daily Journal, March 9, 1999, p. 11.) Appellant concurs the rules are evil but cannot understand to what "necessity" the Chief Justice refers. This case gives the Chief Justice the opportunity to demonstrate to a fact-finder convincing evidence of both sufficient necessity, as well as lack of reasonable alternatives, that will warrant overriding constitutional principles, other basic principles of the Rule of Law, and the needs of the democracy to monitor how its laws are actually being applied.

In a common law system, as is ours, the publication and citation of opinions serves as a warranty that justice is applied with an even hand and in harmony with past decisions. Without the warranty provided by public access and knowledge, there is no warranty of fair and just results, as there is no means of assuring continuity and no means for public comment should continuity be disturbed.

Justices and the Bar have taken an oath to protect and defend our cherished constitution, not to be a burden upon our government, but as an act of love for the people whom the constitution, and the government created by it, are meant to serve. When one cherishes something, one creates a protected area around it in order to be certain that neither negligent nor intentional trespassers may damage it. If one loves the constitution, one seeks to enlarge upon its magnificent doctrines, not erode them, and to serve its ends, not to evade them.

Appellant recognizes publication of the collection of cases not published from the inception of Rules 976-979 to present would subject the public to "30 years of inconsistencies in the law" which Professor Gideon Kanner has compared to the outflow of the Augean Stables. (Winoker, The Law's Dirty Little Secret, San Francisco Examiner, December 29, 1998.) Doing so would bring chaos to the state of California law, bringing further harm, even to the people already hurt by non-publication. So as to avoid harm Appellant seeks only that all resolutions of cases be published and available for citation prospectively, along with any decision that would tend to be exculpatory of criminal charges, until the legislature has the ability to determine what, if any, precedent shall be accorded to the balance of these decisions.

On May 21, 1998, appellant Michael Schmier (hereinafter "appellant"), 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 Counsel (hereinafter collectively referred to as "respondents"), seeking injunctive and other relief. (CT 1-14.) Also on May 22, 1998, appellant filed an ex parte application for writ of mandate or prohibition in the alternative and an ex parte application for an Order to Show Cause regarding a preliminary injunction and/or a temporary restraining order. (CT 102-109.)

On May 22, 1998, the Honorable Raymond D. Williamson issued an Order to Show Cause regarding why defendants should not be enjoined from enforcing the Non-Publication/Non- Citation rules. (CT 127-128.) On June 30, 1998, the trial court denied appellant's petition for a temporary injunction. (CT 213-214.)

On June 12, 1998, defendants demurred to the complaint. On July 27, 1998, the Honorable David A. Garcia, heard argument and sustained the demurrer without leave to amend. (CT 245.) On September 4, 1998, the Order Sustaining Demurrer Without Leave to Amend and Dismissing Case was filed with the Superior Court. (CT 246-248.) Appellant timely filed a Notice of Appeal from the order sustaining the demurrer and dismissing the case. (CT 253-254.)

This appeal is taken from a final judgment and is authorized by Code of Civil Procedure § 904.1, subd. (a)(1). (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695; Diaz v. United California Bank (1977) 71 Cal.App.3d 161, 166.)

Appellant Michael Schmier sued respondents alleging that California Rules of Court, Rules 976-979 violate fundamental rights guaranteed to all persons in State of California. (CT 5.) These rights include the right to due process and to equal protection of the laws, the guarantee of free speech under the constitution, the right to petition government for the redress of grievances, and the separation of powers doctrine. Appellant also alleged that these rules violated statutory provisions mandating that the common law is the law of the State of California and the doctrine of stare decisis. (CT 5-6.)

A. Provisions of the Non-publication/Non-citation Rules

Rules 976-979 create a scheme whereby the appellate courts of this state can make "new law" or create conflicts with established law without having to make this new law available to future litigants or the public. (Rule 976(b).) Moreover, 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. (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 key language in 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.

When the rule was originally enacted in 1966, it made publication mandatory for opinions which involved a change in an established principle of law. (Rule 976, Historical Notes.) Subsequent amendments eliminated this protection, however. (Rule 976, Historical Notes.)

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. This rule precludes any party from bringing to a court's attention any unpublished opinion under any circumstance,^[2]  regardless of how on point that opinion may be, and regardless of whether that opinion established new rules of law about which the party wishes to apprise the court. 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 legally made to "vanish."

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 binding precedent on future courts.

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,^[3]  and a former Justice of the Supreme Court agrees,^[4]  that depublication is mainly used to make disagreeable precedent disappear.

B. Historical Overview of the Enactment of Non-Publication/Non-Citation Rules.

Non-publication/non-citation rules are of relatively recent origin. Many courts authorized publication of virtually every opinion well into the 1960s. (Shuldberg, Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeal (1997) 85 Calif. L. Rev. 541, 546.)

From nearly the beginning of California's history as a state, the California Constitution required all appellate opinions be in writing with reasons given for the result. (Id. at p. 39.)

In California, historically all appellate opinions were published in one form or another. (Seligson, The Use of Unreported Cases in California (1972) 24 Hastings L.J. 37, 44-45 (hereinafter The Use of Unreported Cases).) Between 1909 and 1963, all appellate opinions were published in the official reports, pursuant to statute. Prior to that, only select cases were published in full in the official reports. All other cases were privately published in a series called "California Unreported Cases." (Id. at pp. 44-45.)

All appellate cases, whether or not officially published, were considered binding precedent, with the non-officially reported cases on an equal par with the "published" cases. (Id. at p. 47; see e.g. MacDonald v. MacDonald (1909) 155 Cal. 665, 672; People v. Pantages (1931) 212 Cal. 237, 255-56; Estate of Little (1937) 23 Cal.App.2d 40, 43; Overton v. White (1937) 18 Cal.App.2d 567, 571, 574.)

In 1962, the State Bar Committee on Legal Publications and Decisions recommended a selective publication rule. Among the reasons advance by the committee for the rule were that:

(1) Given the increasing number of published appellate cases, the ordinary practitioner could not afford an adequate library;

(2) each year the public would spend millions of dollars for the maintenance of public law libraries;

(3) that the number of cases would cause courts and attorneys to expend countless hours researching case law; and

(4) that a large number of opinions would have no precedential value.

In response to these concerns, selective publication was initiated in California in 1963. (CT 16.)

The non-citation rule was viewed as necessary in order to prevent institutional litigants, such as government agencies from unfairly taking advantage of their greater access to non-published opinions. (CT 31-34.) A Committee appointed by the Chief Justice in 1978 recognized that providing "[f]ull access [would] do a better job of dealing with unequal availability of unpublished opinions than the noncitation rule." (CT 28.) Given the lack of a system to provide such access, the committee recommended retaining the non-citation rule for the time being. (CT 31-34.) The committee did recommend, however, that if an inexpensive, convenient access system proves feasible, the non-citation rule should be re-considered. (CT 33.)

C. The Overuse of the Non-publication/Non-citation Rules by the Courts.

Since the enactment of the Non-publication/Non-citation rules, the number of appellate opinions certified for non-publication has risen dramatically. In 1964-65, 53% of all written opinions were not published. (The Use of Unreported Cases, supra, 24 Hastings L.J. at p. 37.) By 1970-71, the number had risen to 71%. (Id.)

By 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, p. 31.) The rate of publication is some districts was even lower. For instance, Division Three of the Second District publishes only 8% of their civil appeals, and just 2% of their criminal appeals. Similarly, the figure for Division Two of the Fourth District is 7% and 2%, respectively.

The Courts of Appeal have rejected numerous demands to change the implementation of the non-publication/non-citation rules. (CT 4.) These courts have also refused at the request of parties and others to permit publication of unpublished decisions. Similarly, the Supreme Court has refused to permit publication of Court of Appeal decisions. (CT 3-4.)

With the advent of on-line research methods and the internet, the concerns which motivated the enactment of the non-publication and non-citation rules have been to a large extent, eliminated. (See section I.G., infra.) The availability of the Internet at limited or no cost to the individual user has eliminated concerns about the expense to parties in obtaining published cases. Moreover, the various search technologies, including boolian search engines on the Internet and through private providers such as Lexis and Westlaw, have drastically reduced concerns about intellectual overload. (CT 7.) With access thus equalized, the original concerns which prompted the enactment of the non-citation rule are also no longer valid.

I.   THE NON-PUBLICATION/NON-CITATION RULES ARE UNCONSTITUTIONAL AND IN CONFLICT WITH STATUTORY LAW.

1. Standard of Review

An appellate court's task in reviewing a ruling on demurrer "is to determine whether the complaint states a cause of action." (Moore v. Regents of University of California (1990) 51 Cal.3d 120.)

"We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]." (Blank v. Kirwan (1985) 29 Cal.3d 311, 318.)

The appellate court must reverse the dismissal of the case if the complaint's allegations state a cause of action under any possible legal theory. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444.)

Constitutional issues are reviewed de novo. (State of Ohio v. Barron (1997) 52 Cal.App.4th 62, 67.) Similarly, the facial validity of legislation is subject to independent appellate review. (North Coast Coalition v. Woods (1980) 110 Cal.App.3d 800, 804-05.)

2. The Non-Publication/Non-Citation Rules Violate Due Process and Equal Protection by Creating a System of Selective Prospectivity.

The non-publication/non-citation rules produce a scheme in which courts fashion new rules of law applicable to single cases. This type of "selective prospectivity" is unconstitutional absent certain safeguards not found here. Selective prospectivity is tolerated only where considerations such as the finality of judgments outweigh concerns for the integrity of judicial review and the need for similarly situated litigants to be treated similarly.

1. "Selective prospectivity" violates the constitutional guarantees of equal protection and due process.

All Californians are entitled to due process and to equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const. Art. 1, § 7(a); Gay Students Assn. v. Pacific Tel. Co (1979) 24 Cal.3d 458, 468.) Among other things, equal protection means that "all laws of a general nature have uniform operation." (Cal. Const., Art. 4, § 16(a); Los Angeles v. Oliver (1929) 102 Cal.App. 299, 319.) Moreover, "[a] citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens." (Cal. Const., art. I, § 7.)

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 the Supreme 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 (1992) 505 U.S. 833, 854 [emphasis supplied].)

The non-publication/non-citation rules 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.^[5]  The Supreme Court has utterly rejected "selective prospectivity" as unconstitutional in both criminal and civil cases.

The Supreme Court first dispensed with selective prospectivity in the criminal arena in Griffith v. Kentucky (1987) 479 U.S. 314. 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 p. 322.)

The Court gave two reasons for its decision. First, the Court reasoned that to do otherwise would compromise the very "integrity of judicial review" and cause the courts to exceed their constitutional grant of power. (Id. at pp. 322-23.) As the Court explained:

"'In truth, the Court's assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.'" (Id. at p. 323, quoting Mackey v. United States (1971) 401 U.S. 667, 679 (conc. opn. of Harlan, J.).)

Second, the Court reasoned that "selective application of new rules violates the principle of treating similarly situated defendants the same." (Id. at p. 324.)

Four years later, the Court rejected "selective prospectivity" in the civil context. (James B. Beam Distilling Co. v. Georgia (1991) 501 U.S. 529; see also Harper v. Virginia Dept. of Taxation (1993) 509 U.S. 86.)^[6]  While the 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. (James B. Beam, supra, 501 U.S. at p. 535-536.)

[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 pp. 537-538, quoting Desist v. United States (1969) 394 U.S. 244, 258-59.)

The 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. (Id. at p. 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 p. 548.)

The non-publication/non-citation 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.

2. Where selective prospectivity is allowed, it must be accompanied by fair and certain standards which are lacking with the non-publication/non-citation rules.

Selective prospectivity is allowed only where procedural or other considerations mitigate against applying new rules retroactively. Examples include: concerns for finality of judgments (See James B. Beam, supra, 501 U.S. at p. 541-42; Chicot County Drainage District v. Baxter State Bank (1940) 308 U.S. 371, 374); considerations about the functions of collateral review and the function of habeas corpus (Teague v. Lane (1989) 489 U.S. 288, 306-310); and concerns for respecting the right of states' to define their own procedural requirements (See James B. Beam, supra, 501 U.S. at p. 544.)

In such cases, however, selective prospectivity is guided by fair and certain principles and is itself applied uniformly with an eye toward respecting the constitutional rights of the litigants before the court. (See Teague, supra, 489 U.S. at pp. 310-316.)

In contrast, 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.

3. Selective prospectivity is particularly troubling where it operates to deprive criminal defendants of basic constitutional rights.

Selective prospectivity is particularly troubling where a criminal defendant is arbitrarily deprived of the benefit of a rule of law which would gain his freedom, or where the court arbitrarily imposes a more stringent "new rule of law" upon him without also imposing it on similarly situated future litigants.^[7]  Such a situation "violates the basic norms of constitutional adjudication" and is blatantly unconstitutional under Griffith v. Kentucky. (479 U.S. 322-23.)

Moreover, this conflicts with the spirit, if not the letter, of the ruling in Brady v. Maryland (1963) 373 U.S. 83, 86. Under Brady, the government has an absolute duty to provide a criminal defendant with exculpatory evidence. However, under the non-publication/non-publication rules, the government not only can evade its duty to make exculpatory law available; it can affirmatively prevent that defendant from even mentioning this law to the court. This is simply incompatible with the basic rights afforded to criminal defendants by our Constitution.

One court expounded at length on the potential constitutional implications of non-publication/non-citation rules for criminal defendants. (Goodlet v. Commonwealth of Kentucky (1992) 825 S.W.2d 290, 292-93.) In Goodlet, the defendant argued that he was deprived of due process and equal protection by the rules. He was subject, by virtue of an unpublished opinion affirming his conviction, to a rule of criminal procedure which was soundly rejected in another unpublished opinion. (Id. at p. 292, fn. 8.) Yet, he was restrained by the no-citation rule from even bringing the other unpublished opinion to the court's attention . (Id. at p. 292, fn. 6.)

The court agreed that Goodlet was "absolutely correct that the same issue under similar facts can be decided in entirely different ways with no one being the wiser." (Id. at p. 292.) The court blamed the no-citation rule in particular for this injustice and stated that "It would be chimerical to deny that the no-citation rule allows one to manipulate the appellate system so as to effect a particular result." (Id. at p. 292, fn. 8 and p. 293.) The court ultimately felt constrained not to decide the constitutional issue however, since the matter could be determined on non-constitutional grounds. (Id. at p. 292-93.)

The matter which the Kentucky court felt constrained not to decide is now squarely before this Court for resolution. Appellant submits that even under the complaint as it stands, he has stated a claim that the non-publication/non-citation rules violate the Constitution.

3. The Non-Publication/Non-Citation Rules Violate Individuals' Freedom of Speech and Deny Litigants Their Constitutional Right to Petition Government for the Redress of Grievances.

The non-publication/non-citation rules create an unjustified prior restraint on speech and obstruct access to the law and access to the courts. Litigants are forbidden from referring to the vast majority of decided cases, no matter how relevant to their action. In turn, trial courts are denied the much needed guidance of higher courts -- the very courts that are charged with reviewing trial court error. This system arguably results in blind litigation, which can only contribute to ever increasing trial and appellate dockets.

1. The non-citation rule is an unconstitutional prior restraint.

The most obviously unconstitutional of the Non-publication/non-citation rules is Rule 977, which forbids citing or relying on any non-published case as authority. This rule impermissibly infringes on freedom of speech by creating an unconstitutional prior restraint. (U.S. Const., 1st Amend., Cal. Const., art. I, § 2.)

The California Constitution commands that "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." (Cal. Const., art. I, § 2.) The right to speak freely is more broadly construed under the state Constitution than under the First Amendment. (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 908, affd. sub. nom. Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 100.)

Any system of prior restraint bears "a heavy presumption against its constitutional validity." (Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558.) 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. (See Alicia T. v. Los Angeles (1990) 222 Cal.App.3d 869, 884-86 [attorney sanctioned in part for relying on depublished opinion in opening and reply briefs].)

1. The stated reasons for the no-citation rule do not justify such a draconian prior restraint.

Given the constitutional requisites for restraints on speech, the question then becomes whether California's justification for Rule 977 can meet such a heavy burden. Speech may be restrained only in extraordinary circumstances. (Gilbert v. National Enquirer (1996) 43 Cal.App.4th 1135, 1144-45.) Even false and defamatory speech may not legally be restrained. (Id.)

What then, could possibly be the justification for enjoining litigants from informing the courts about the law which they are obliged to follow? Or for that matter, for precluding the courts from relying on or even referencing that law in their published decisions?

The reasons given by the Chief Justice's Advisory Committee For an Effective Publication Rule for the non-citation rule were that:

(1) permitting citation of unpublished decisions would give institutional litigants an unfair advantage by reason of their privileged access; and

(2) it would impose an impractical research burden on other litigants in view of the general inaccessibility of the opinions. (CT 31.)^[8] 

These reasons are simply not sufficient to justify the restraint on speech. Indeed, to a large extent these concerns do not even remain viable in light of the changes in information storage, distribution and processing technologies since these rules were enacted. (See section I.G., infra.)

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 thus have no rational relationship to any legitimate state purpose.

This restraint on speech creates a system of utter arbitrariness. Litigants can cite to almost anything as persuasive authority, including a law journal note of a brand-new law student published by a third-rate journal. Indeed, litigants can cite, and courts even use as authority, the words of fictional characters, such as Alice in Wonderland and Humpty Dumpty. (See American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 428 (dis. opn. of Brown, J.); Cooper v. Swoap (1974) 11 Cal.3d 856, 872.)

Yet litigants cannot even mention well-reasoned and supported appellate decisions made by a panel of experienced jurists who have carefully considered a similar issue and committed its resolution to writing. If there are facts that justify what appears to be an absurd rule, surely the public will benefit by having them presented to a fact finder.

2. The no-citation rule cannot be justified by the court's increased caseload and need for efficiency.

The suggestion that courts simply do not have the time to craft publication quality opinions for all cases before them cannot excuse abridging free speech regarding these opinions. The argument that the unpublished decisions are not sufficiently well-reasoned or well-supported to serve as binding precedent is antithetical to the rule of law. (See Re Rules of the United States Court of Appeals for the Tenth Circuit (1992) 995 F.2d 36, 38 [dissent to adoption of rule by Halloway, C.J., Barrett, J. and Baldock.).

This is the most untenable of the notions suggested for the no-citation rule. In light of our caseload, we are obviously driven to entering orders which are not the literary models that we would like to produce as opinions. Nevertheless, the basic purpose for stating reasons within an opinion should never be forgotten -- that the decision must be able to withstand the scrutiny of analysis, against the record evidence, as to its soundness under the Constitution and the statutory and decisional law we must follow, and as to its consistency with our precedents. Our orders and judgments, like our published opinions, should never be shielded from searching examination. (Id. at p. 38, emphasis added.)

California's population is one of the most productive populations on earth. When in the course of our activities, we require the decisions of the courts, we are entitled to fair, impartial and well-reasoned opinions. There should be no "second tier" of opinions which are deemed too poorly drafted to be worthy of citation. Otherwise this condemns the subjects of these unpublished opinions to an unconstitutional "second tier" system of justice.

2. The non-publication/non-citation rules violate the constitutional guarantees of access to the courts and the right to petition for redress of grievances.

The non-publication/non-citation rules infringe upon litigants' constitutionally protected right of access to the courts and to petition the government for redress of grievances. (Cal. Const. art. I, § 3; Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555 [recognizing that First Amendment provides for access to judicial proceedings and court records]; In re Marriage of Reese (1977) 73 Cal.App.3d 120 [all persons have constitutional right of access to the courts].)

1. Non-publication/non-citation rules obstruct access to the law.

The non-publication rules obstruct litigants' full access to the products of the appellate courts, to the body of laws which they have developed, or to the materials upon which the courts have relied in their decision-making process. Under the constitution, they are absolutely entitled to access to this material. (See Los Angeles Times v. County of Los Angeles (C.D. Cal. 1996) 956 F.Supp. 1530, 1539 [discussing contours of the right of access to court documents].)

Many valid grievances may go unredressed because there is no record of relief being granted in a similar circumstance. Conversely, others may be forced to complete expensive litigation to resolve that which could have been resolved by one citation. Such waste is contrary to the Rule of Law.

2. Non-publication/non-citation rules obstruct access to the courts

Combined with the non-citation rule, the non-publication rule also infringes individuals' right to petition for redress of grievances. This right is "of parallel importance to the right of free speech." (Bozek v. City of Long Beach (1982) 31 Cal.3d 527, 535.) The right to petition specifically "protects attempts to obtain redress through the institution of judicial proceedings." ( Id. at p. 533.) Yet, how can litigants truly exercise their right to petition for the redress of grievances if they cannot even inform the courts of the contents and contours of the very law that court is obliged to apply? Obviously, they cannot.

4. California's Non-Publication/Non-Citation Rules Are Invalid Because They Allow the Courts Unfettered Discretion

Court rules 976, 978 and 979 under which publication is never mandantory, vest appellate courts with unfettered discretion in publication Rule 977 nullifies the discipline of stare decisis for decisions who have not been published. As a result of these rules, courts enjoy unfettered discretion in decision making. This scheme completely defeats the salutory benefits of state and federal constitutional guarantees of equal protection and due process.

1. Publication is never mandatory under any circumstance.

California's Non-Publication/Non-Citation rules must fall, first and foremost, because there is absolutely no restriction upon the Courts' discretion to publish or not publish any appellate opinion. Even if rules limiting publication and citation could be constitutional under some circumstances, California's rules must be found unconstitutional because they lack any mandatory criteria for publication.

Rule 976(b) does not compel that any opinion of the California Courts of Appeal ever be published, even when that opinion establishes a new rule of law or changes an existing rule or law.^[9]  By failing to impose even the most minimal restrictions on the Courts' discretion, the rules run afoul of several constitutional provisions.

2. The rules violate due process because they enable the creation of laws that would otherwise be found void-for-vagueness.

First, rules 976-979 violate due process because they are unconstitutionally vague. "It is a basic principle of constitutional due process that an ordinance or statute will be declared unconstitutionally vague if its prohibitions are not clearly defined." (Martinez v. County of Tulare (1987) 190 Cal.App.3d 1430, 1435.)

The void-for-vagueness doctrine is usually applied to statutes which directly create criminal or civil liabilities. (See e.g., Papachristou v. City of Jacksonville (1972) 405 U.S. 156 [vagrancy ordinance found unconstitutionally vague]; Ewing v. City of Carmel-by-the Sea (1991) 234 Cal.App.3d 1579 [zoning ordinance held not vague].) However, the principles underlying this doctrine apply with even greater force where, as here, the statute is one which enables the creation of vague criminal and civil laws.

Under the non-publication/non-citation rules, the courts may modify existing law and create entirely new bases for criminal or civil liability as they see fit, without providing notice as Due Process requires.^[10]  Moreover, because unpublished decisions, even those which change the law ,have no precedential value and cannot even be cited, all laws are rendered vague and uncertain.

Litigants before the court in future cases cannot be certain which "law" the court will apply in their case -- the official "published" law or the unofficial "unpublished" law. Faced with conflicting published and non-published decisions, even intelligent and experienced attorneys must necessarily guess at the meaning and application of the law. Laws so vague that a person of ordinary intelligence must necessarily guess at their meaning and differ as to their application, "'violate[ ] the first essential of due process.'" (Ewing, supra, 234 Cal.App.3d at p. 1594, quoting Connally v. General Const. Co. (1926) 269 U.S. 385, 391.)

Appellant means no disrespect in suggesting that the Courts of Appeal cannot be trusted to use their broad grant of discretion in a judicious and non-arbitrary manner. However, the void-for-vagueness doctrine is based upon the premise that no government official should be granted unbridled discretion because the potential for abuse of that discretion is too great. As Supreme Court Justice Marshall explained:

"A principle underlying many of our prior decisions in various doctrinal settings is that government officials may not be accorded unfettered discretion in making decisions that impinge upon fundamental rights. Two concerns underlie this principle: excessive discretion fosters inequality in the distribution of entitlements and harms, inequality which is especially troublesome when those benefits and burdens are great; and discretion can mask the use by officials of illegitimate criteria in allocating important goods and rights.

"So, in striking down on vagueness grounds, a vagrancy ordinance, we emphasized the 'unfettered discretion it places in the hands of the . . . police.' [Citation]. Such flexibility was deemed constitutionally offensive because it 'permits and encourages an arbitrary and discriminatory enforcement of the law.' [Citation]. Partly for similar reasons, we have consistently held violative of the First Amendment ordinances which make the ability to engage in constitutionally protected speech 'contingent upon the uncontrolled will of an official -- as by requiring a permit or license which may be granted or withheld in the discretion of such official.' [Citation]. Analogous considerations inform our understanding of the dictates of the Due Process Clause." (Schall v. Abrams (1984) 467 U.S. 253, 306-07 [dis. opn. of Marshall, J.].)

This concern for unconstrained decisionmaking is not limited to officials in the executive branch, but applies with equal force to members of the judiciary. (See Zablocki v. Redhail (1978) 434 U.S. 374, 402 n. 4 [conc. opn. Powell, J.]

3. The rules violate the separation of powers doctrine.

In addition to violating procedural due process, this grant of unfettered discretion implicates the Separation of Powers doctrine explicitly set forth in the State Constitution and implicit in the federal Constitution. (See Cal. Const. art. 3, § 3, art. 4, § 1, art. 6, § 1.; Springer v. Philippine Islands (1928) 277 U.S. 189, 201.) Vague laws by their very nature usurp the role of the legislature by "delegat[ing] the legislative job of defining what is prohibited to policemen, judges, and juries, creating a danger of arbitrary and discriminatory application." (Ewing, supra, 234 Cal.App.3d at p. 1594.)

At the heart of the doctrine of separation of powers is the notion that no branch of government can be trusted to police itself. Yet, this is the very power which the non-publication/non-citation rules grant the judiciary. The non-publication/non-citation rules have thus wiped out a key component of our system of checks and balances by effectively eliminating the accountability of the judiciary to the legislature and ultimately, to the public itself.

The non-publication/non-citation rules allow the courts to define what is prohibited by the laws on an arbitrary, ad hoc basis. Courts can change laws and eliminate or create liability without having to announce their rulings to the legislature and the public; without even having to abide by those decisions in the future. There is nothing to prevent courts from bending, or even outright disregarding, the law as declared by the Legislature, in order to obtain a result that "seems fair" in a particular case.

It is inherent in our system of checks and balances that the legislative branch retains the power to "legislatively overrule" non-constitutionally based decisions of the courts. (See Rivers v. Roadway Express, Inc. (1994) 511 U.S. 298, 304.) Rules 976-979 essentially deprive the legislature of this power by allowing the judiciary to "hide" its opinions, even those opinions that change the law or which interpret the law contrary to the legislature's intent.

5. The Non-Publication/Non-Citation Rules Create a Secret Body of Law and Circumvent the Rule of Stare Decisis.

The non-publication/non-citation rules effectively establish a body of "secret law" which undermines the doctrine of stare decisis, suppresses important precedent and allows for the disregard of binding authority. In turn, the level of actual conflict between cases is obscured. And as a secondary, and even more troubling result, a "second tier" of inferior opinions is created. Taken together, an appearance of, if not the reality of, unfairness arises, striking a sharp blow to the public's confidence in the judiciary.

1. The non-publication/non-citation rules eviserate the doctrine of stare decisis resulting in a fundamental denial of the rule of law.

Appellate courts in our common-law system serve two primary functions. One is the resolution of disputes. The other, more important function "is to establish the law itself, to determine what the content of the law shall be. That is the function of common law precedent and of the rule of stare decisis." (The Use of Unreported Cases, supra, at p. 50; see also Kelso, A Report on the California Appellate System (1994) 45 Hastings L.J. 433, 440 (hereinafter A Report on the California Appellate System).)

Stare decisis is a fundamental part of the rule of law. (James B. Beam, supra, 501 U.S. at pp. 537-38). The non-publication/non-citation rules undermine this second function by creating a body of "secret law" which need not be (and often is not) reconciled with the published authority. This system of "secret law" is destructive to the integrity of our judicial system in several ways.

2. Litigants and attorneys are subject to laws which they have no way of being aware.

As mentioned previously, such a system of secret and unreconciled laws deprives litigants of their constitutional right to due process and equal protection by subjecting them to a set of hidden rules.

Courts create unpublished opinions, but are never held truly accountable for them because they are not readily available to the public and will not be binding in future cases. Litigants are often not aware of these decisions and are prohibited from citing these opinions even if they do become aware of them. The courts require the parties to treat these opinions as if they do not exist.

However, these hidden opinions do exist. These decisions are locked away in the institutional memories of the courts that produce them, where they often wield a silent but powerful influence over future decisions. (See Barnett, Depublication Deflating: The California Supreme Court's Wonderful Law-Making Machine Begins to Self-Destruct (1994) 45 Hastings L.J. 519 [demonstrating how courts use unpublished an depublished decisions as authority].)

These opinions certainly play a role in the courts' future decisionmaking, but the role is covert. The unwitting litigant is subject to this "secret body of law" just as much as he or she is to the published statutory and decisional law.

3. The rules undermine stare decisis because they prevent courts from following the mandates of Auto Equity Sales.

Perhaps an even more harmful aspect of this system of "secret law" is that it undermines the very system of stare decisis upon which our legal system is based:

"Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Under Auto Equity, a trial court acts in excess of its jurisdiction when it does not follow the decisions of the appellate courts. (Id.)

At the time Auto Equity was decided, all cases whether officially published or not, were considered binding precedent. Parties could inform the appellate court of unpublished decisions which were on point and the court was consequently obligated to follow this authority. (The Use of Unreported Cases, supra, at p. 47.)^[11] 

Since the adoption of Rule 977, however, trial courts are in the untenable position of being bound by law which they may not even know exists (because it is not made readily available) and which cannot be cited to them. Moreover, should a trial court fail to follow this precedent as Auto Equity commands, a litigant cannot point it out to the appellate court reviewing the matter. Nor can that appellate court cite or rely on the "secret law" to remedy the trial court's error. Rule 977 commands that the parties, and the courts, remain silent about the very violation of the commands of Auto Equity.

As one judge commented, this situation leaves courts "in the Orwellian situation where the Court of Appeal opinion binds us, under Auto Equity Sales . . . but we cannot tell anyone about it." (County of Los Angeles v. Wilshire Ins. Co. (1979) 103 Cal.App.3d Supp. 1, 5 (conc. opn. of Cole, P.J.).)

"Such a rule of law is intolerable in a society whose governmental decisions are supposed to be free and open and whose legal system is founded on principles of the common law (Civ. Code, § 22.2) with its elementary reliance on the doctrine of stare decisis." (Id.)

4. The rules result in the suppression of important precedent

Some defenders of the non-publication rules argue that only unimportant opinions which rehash well settled principles of law are selected for non-publication. However, this claim has been flatly rebutted by scholars who have researched the content of non-published opinions. (Comment, Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals (1997) 85 Calif. L. Rev. 541, 551-555 (hereinafter Digital Influence); Kanner, The Unpublished Opinion: Friend or Foe? (1973) 48 Cal. St. B.J. 386 (hereinafter The Unpublished Opinion); Reynolds & Richman, The Non-Precedential Precedent -- Limited Publication and no-Citation Rules in the United States Courts of Appeals (1978) 78 Colum. L. Rev. 1167, 1192-94 (hereinafter The Non-Precedential Precedent) [cataloging blatantly inconsistent unpublished decisions issued in 1974 and 1975]; Comment, A Snake in the Path of the Law: The Seventh Circuit's Non-Publication Rule (1977) 39 U. Pitt. L. Rev. 309 [concluding after review of 150 unreported decisions that 15% were decisions that went beyond Seventh Circuit precedent and created new law].)

Indeed, after reviewing published and unpublished cases in California shortly after the enactment of rules 976-979, one scholar concluded:

"The fond hope that non-publication under Rule 976(b) would remove from the reports only the cut-and-dried, old-hat reiterations of familiar rules, unworthy of researching or even occupying lawyers' library shelf space, has in application proved to be unjustified. Imbedded in the bulk of unpublished opinions is a not-inconsiderable body of law dealing with novel points and giving rise to conflicts among decisions." (The Unpublished Opinion, supra, at p. 443.)

Twenty five years later, there is no indication that this situation has changed. Indeed, it could only have grown worse since the rate of publication has drastically declined. Fewer than 10% of all appeals statewide are published with only 4% of all criminal appeals certified for publication (California Judicial Council, 1999 Annual Court Statistics Report, p. 31.)

5. The rules permit courts to disregard binding authority and obscure the level of conflict between cases.

Rules 976-979 undermine the accountability of the judiciary by permitting the courts to render decisions which flatly contradict published authority and then shield these opinions from scrutiny by simply stamping them "Not To Be Published in Official Reports." These rules allow courts to pick and choose which law to apply to a particular case, knowing that they will not be bound by that precedent in future cases.

This is more than just paranoid speculation. Scholars have documented that unpublished opinions frequently are directly in conflict with other published and non-published opinions. (The Unpublished Opinion, supra, at p. 442; The Non-Precedential Precedent, supra, at pp. 1193-94; Gardner, Ninth Circuit's Unpublished Opinions: Denial of Equal Justice? (1975) 61 A.B.A. J. 1224.)

While inconsistencies necessarily arise among cases, the evil of the non-publication/non-citation rule is that they shield these inconsistencies from public view and prevent their ultimate resolution. Conflict between decisions is ultimately beneficial for the development of a cohesive and flexible body of law, as it foments discussion and debate. The non-publication/non-citation rules prevent this debate from even occurring and thus perpetuate unjust and inconsistent application of the law.

6. The rules allow for the production of opinions which are of inferior quality.

A related consequence of the non-publication/non-citation rules is the production of opinions which are of inferior quality.^[12]  Justice Stevens echoed this concern in condemning non-publication/non-citation rules as "spawning a body of secret law" that result in "decisionmaking without the discipline and accountability that the preparation of [published] opinions requires." (County of Los Angeles v. Kling (1985) 474 U.S. 936, 938, 940.) As he noted:

"'In our law the opinion has in addition a central forward-looking function which reaches far beyond the cause in hand: the opinion has as one if not its major office to show how like cases are properly to be decided in the future. This also frequently casts its shadow before, and affects the deciding of the cause in hand. (If I cannot give a reason I should be willing to stand to, I must shrink from the very result which otherwise seems good.) Thus the opinion serves as a steadying factor which aids reckonability.'" (Id. at p. 940, fn. 6, quoting Llewellyn, The Common Law Tradition (1960) p. 26.)

The Constitution requires appellate opinions to "be in writing with reasons stated" to ensure that reviewing courts give careful thought and consideration to cases and to ensure that appellants' contentions are thoroughly and conscientiously reviewed. (People v. Rojas (1981) 118 Cal.App.3d 278, 288.) The non-publication/non-citation rules undermine this goal by allowing for the creation of opinions which will not be subject to public scrutiny, and which will not have to be reconciled with other authority in the future. The result, too often, are opinions which fail to meet the exacting standards mandated by the Constitution.

Compelling evidence that unpublished opinions not subject to such scrutiny inevitably result in a lower quality of legal analysis is found in the case of Jones v. Superintendent, Virginia State Farm (1972) 465 F.2d 1091. In that case, the Fourth Circuit granted rehearing to address the issue of the precedential value of an unpublished decision which was flatly contradictory to the court's later published decision. The court was embarrassingly forced to concede that the unpublished opinion, "was not a carefully reasoned or fully expostulated one." The court had to admit that while it had attempted to follow the Supreme Court case on point it "did not track it closely" and thus gave erroneous instructions to the district court in the unpublished decision. (Id. at p. 1093.) When presented with the opportunity to draft a published opinion, the court stated that it "did a better job." (Id.)

The court frankly acknowledged that the situation was caused in part by the crisis of volume faced by the courts of appeal. (Id. at pp. 1093-94.) While it defended the use of unreported decisions as a way to deal with the problem, it did admit this system's "imperfection." (Id. at p. 1094.) The court noted that it was absolutely dependent upon the attorneys to provide "the source of the raw material with which we work: facts, inferences, ideas, insights, and prior decisions, the effect of which is now so forcibly called to our attention." (Id. at p. 1093.) For these reasons, the court conceded that it could not deny litigants and the bar the right to urge upon us what we have previously done." (Id. at p. 1094.) Ironically, through Rule 977, California eliminated this final safeguard.

Very few courts have addressed this problem with such candor. One can only ask, how many other opinions are there which are, because of their unpublished status, not required to be "carefully reasoned or fully expostulated?" Appellant alleges that there are many -- too many.

If indeed, the resources of the appellate courts are simply insufficient to meet the volume of cases which it now faces, this fact must be made known to the public. It should not remain the "dirty little secret" available only to appellate court insiders and regular appellate practitioners.

All decisions, whether poorly reasoned or not, must be brought forth into the light of day. If there is indeed a diminution of quality in the unpublished opinions, the public deserves to know. Only they can petition the government to remedy the problem, either through a grant of greater resources to the judiciary or through a restructuring of the appellate system. Justice and consistency is too precious to our system of law to sacrifice for the purposes of cost-cutting and expediency.

7. The rules undermine faith in the judiciary by creating the appearance of unfairness and secrecy.

Non-publication/non-citation rules undermine the public's confidence in the fairness of the judiciary by creating the appearance of unfairness and secrecy to the public. As Justice Cardozo stated, "[A]dherence to precedent must be the rule rather than the exception if litigants are to have faith in even-handed administration of justice in the courts." (Cardozo, Nature of the Judicial Process (1921) p. 34.)

The secret body of law which the non-publication/non-citation rules creates can only serve to foster suspicion that the courts have something to hide. (Carpenter, The No-Citation Rule for Unpublished Opinions: Do the Ends of Expediency for Overloaded Appellate Courts Justify the Means of Secrecy? (1998) 50 S.C. L. Rev. 235, 254-56.) As one commentator reasoned:

"What is the purpose of a secret? Nations keep secrets for reasons of national security. A nation needs to hide its points of vulnerability and withhold knowledge of power to prevent others from seeking parity or superiority. In a free society, the people skeptically tolerate such secrecy only for purposes of national security, and even then only when a number of their elected officials, independent from those who make the secrets, have access to the concealed information and the responsibility of oversight. People are intolerant of government secrets because they know their own motives for keeping secrets: secrets are usually based on fear, shame, or embarrassment. . . .

"What, then is the chief goal of the no-citation rule for unpublished appellate opinions? Is it really to save penmanship efforts or library and research costs, or does the defensiveness of the defenders suggest something more? With the development of the no-citation rule, a blackout curtain has descended across the appellate bench." (Id. at p. 236.)

Regardless of whether this "blackout curtain" is intended to or actually does hide the court's "shameful secrets," it is bound to be perceived that way by the public.

6. Non-Publication/Non-Citation Rules Conflict with Existing Statutory Provisions, Including Civil Code Section 22.5, Article VI, § 14 of the California Constitution and Government Code § 6250, and exceed the scope of the power granted to the Judicial Council.

Rules adopted by the Judicial Council are only valid insofar as they are not inconsistent with statutes. (Cal. Const., Art. VI, § 6; California Court Reporters Assn. v. Judicial Council of California (1995) 39 Cal.App.4th 15, 18.) The Judicial Council is inferior to the legislature and cannot act in excess of the power granted them by the Legislature. (People v. Hall (1994) 8 Cal.4th 950, 960; California Court Reporters, supra, 39 Cal.App.4th at p. 22.) The non-publication/non-citation rules are invalid because they both exceed the limited grant of authority given by the legislature and because they conflict with other statutes and constitutional provisions.

1. The Judicial Council and Supreme Court exceeded their legislative grant of authority.

The Supreme Court and Judicial Council's authority to enact rules regarding publication of opinions is derived from several sources. Article VI, § 6 of the California Constitution permits the Judicial Council to adopt rules for court administration, practice and procedure. Article VI, § 14 provides in pertinent part that: "The Legislature shall provide for the prompt publication of such opinions . . . as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person." Government Code § 68902 further provides:

"Such opinions of the Supreme Court, of the courts of appeal, and of the appellate departments of the superior courts as the Supreme Court may deem expedient shall be published in the official reports. The reports shall be published under the general supervision of the Supreme Court."

The sections following § 68902 provide further specifics as to how any contract for publication of the official reports is to be entered. (Govt. C. §§ 68903-68905.) The sections immediately preceding deal with the mechanics of the appointment of the reporter of decisions and his or her salary. (Govt. C §§ 68900-68901.)

Read in context, these statutory and constitutional provisions relate only to the ability to determine which cases will be published pursuant to a contractual relationship between the State and a publisher, rather than through private party action. This is clear from the plain language of Article VI, § 14: the first reference to "publication" in that provision relates to publication of the official reports via a contract with a publisher. The second reference to 'publication' clearly indicates that the Supreme Court has no ability to restrict publication of these cases in general.

Under the plain meaning of these statutes, all that the Judicial Council and Supreme Court are authorized to do is to determine which of the many opinions issued by the Courts of Appeals should be published in the book known as the Official Reporter.

As previously discussed, California had a long history of selecting only certain cases for the official reports. All other cases were privately published. Until the enactment of Rule 977, all cases had precedential value. (The Use of Unreported Cases, supra, 24 Hastings L.J. at pp. 44-45, 47.) This long-standing practice changed for the first half of this century, however. During the years between 1909 and 1963, all cases were published in the official reports. (Id.) In enacting Government Code § 68902, it was apparent that all the Legislature was trying to accomplish was to limit the content of the official reports and to return to the previous practice of permitting all other cases to be published privately.

None of these statutes authorize the Judicial Council to enact all of the provisions of the non-publication/non-ciation rules. Arguably, Rules 976, 976.1 and 979^[13]  are within the grant of authority, since they provide standards for publication in the official reports and do not purport to restrict publication of other cases by private parties. However, Rule 977 clearly exceeds the scope of the authority granted. Nothing in any of the enabling statutes authorized the Judicial Council to make precedent "disappear" or to command parties to not utter a word about such precedent. In promulgating Rule 977, the Supreme Court and the Judicial Council radically alter the contours of our common-law system of justice without the necessary legislative authorization.

2. The non-publication/non-citation rules conflict with other statutory and constitutional provisions.

The non-publication/non-citation rules are also invalid because they conflict with the scheme underlying several other statutory and constitutional provisions. In judging whether a rule of court is "not inconsistent with statute," the court must look to the intent behind a particular statutory scheme and whether the rule is consistent with that intent. (California Court Reporters, supra, 39 Cal.App.4th at pp. 24, 26.) The rule does not have to expressly contradict the statute or statutes at issue to be found inconsistent with them. (Id. )

Here, there are several statutes which conflict with the non-publication/non-citation rules. First and foremost, these rules conflict with all of the constitutional provisions previously discussed. None of the legislative grants of authority permitted the Judicial Council to impose a prior restraint on the speech of litigants and attorneys, in violation of the constitutional guarantees of freedom of speech.

The rules also conflict with Civil Code § 22.5, which provides that the "common law of England shall be the rule of decision in all the courts of this state." The non-publication/non-citation rules are antithetical to the history and purpose behind the common law system which it is founded upon. Conformance with precedent and stare decisis are the hallmarks of the common law system.

"'Stare decisis is at least the everyday working rule of our law. Every judgment has a generative power. It begets in its own image. Every precedent, in the words of Redlich, has a "directive force for future cases of the same or similar nature."' (Footnotes omitted.) B Cardozo, The Nature of the Judicial Process 20, 21-22 (1963).

"As ours is a common-law system based on the 'directive force' of precedents, its effective and efficient functioning demands wide dissemination of judicial opinions. That segment of the public engaged in the practice of law necessarily must remain abreast of decisions which subtly shape the contours and the body of the evolving law." (Lowenschuss v. West Publishing Co. (3rd Cir. 1976) 542 F.2d 180, 185.)

The non-publication/non-citation rules also conflict with the legislative purpose behind the California Public Records Act. (Govt. Code § 6250 et seq.) The Legislature in enacting that Act, found and declared "that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (Govt. Code § 6250.) Courts construing this Act have emphasized that its purpose was to safeguard the accountability of government to the public. (Wilson v. Superior Court (1996) 51 Cal.App.4th 1136; City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1141.) The non-publication/non-citation rules are inconsistent with this legislative scheme because they serve to hide the business of the appellate courts behind a shroud of secrecy and undermine the accountability of the judiciary to both the legislature and to the people.

Finally, the non-publication/non-citation rules are inconsistent with the purpose of the writing requirement contained in Article VI, § 14. As previously stated, the purpose of the writing requirement was to ensure that reviewing courts give careful thought and consideration to cases. The non-publication/non-citation rules conflict with this goal. (See section I.C.6., infra.)

7. The Concerns Which Motivated the Enactment of the Non-Publication/Non-Citation Rules Have Either Subsided with the Changing Technology or Can be Addressed Through Other Means Which do not Require the Sacrifice of Constitutional Rights.

Admittedly, there are some legitimate concerns with allowing full publication and citation of all appellate court opinions. The original concerns which motivated the enactment of the non-publication/non-citation rules included: (1) that the costs to store the printed volumes of case law would become unduly prohibitive for courts, libraries and small practitioners; (2) that it would cost too much in time and intellectual effort for attorneys to locate relevant authority; (3) that the additional research attorneys must engage in would cause additional expense for litigants; and (4) that in the absence of a non-citation provision, institutional litigants, such as the government, would be able to take advantage of their increased access to non-published opinions. (See Digital Influence, supra, 85 Calif. L. Rev. at pp. 545-64.) Additionally, some claim that requiring well-reasoned written opinions for every case would push the resources of the appellate courts to the breaking point. (See A Report on the California Appellate System, supra, 45 Hastings L.J. at pp. 491-92.)

Many of these concerns have greatly reduced due to rapidly changing technology which makes storage and retrieval of case law much more feasible than when the rules were implemented. At that time, the legal community operated almost exclusively in a print-based media. Litigants or attorneys who wanted access to this law needed to purchase expensive volumes of case reporters as well as secondary sources which indexed this material by subject matter.

Now, retrieval of relevant case law is made exponentially faster and less expensive through the use of computer-assisted research services. "Free language," "boolian" and keynote searches on systems such as Lexis and Westlaw now allow attorneys to access relevant authority faster than ever before.

Some may claim that these services are prohibitively expensive and inaccessible to the average litigant or small practitioner. However, this concern has been all but eliminated. Many (if not most) law libraries offer free access to case law databases which use a boolian based search system.

Moreover, the internet can resolve any concern about the economics of conducting such research. This very District maintains a website on which all published opinions are maintained for a period of time. (www.courtinfo.ca.gov/courts/courtsofappeal/1stDistrict). Other courts maintain more complex types of websites, which if set up in California would all but eliminate any concern about the expense or difficulty of finding unpublished opinions.

For instance, Minnesota maintains a website which contains all published and non-published opinions. (www.courts.state.mn.us/library/archive/index.html). Complex boolian searches can be conducted of all opinions on this website by using the search engine "Infoseek."

The Eighth Circuit Court of Appeals maintains a similar website. (http://is.wustl.edu/8th.cir./opinions.html). Unpublished opinions can also be retrieved using "Infoseek." Search engines such as this allow practitioners and litigants to quickly and easily obtain all the opinions of a jurisdiction on a particular issue, or involving a particular concept.

Concerns about unequal access between institutional and non-institutional litigants would be better served in the absence of the non-citation rule than they are now. If this rule did not exist, a greater market than already exists would develop for the indexing of relevant non-published authority. Non-institutional litigants could subscribe to these services to gain equal footing with their institutional counterparts or use the technologies previously described to locate relevant non-published authority.

The elimination of the non-publication rule would not necessarily mean that our bookshelves would collapse under the weight of the published report. California could continue with the system it had prior to 1909 with certain cases which met mandatory criteria being published in a book entitled the "Official Reporter" pursuant to the state's contractual obligation. The remainder of the cases could (and certainly would) be made available through private publishing.

To the extent that courts fear the elimination of the non-publication/non-citation rules because of the overwhelming burden of producing publication quality opinions for all cases, there are ample alternatives short of an unconstitutional restrictions currently in place. The legislature can allocate more money to appoint more justices. The courts could be divided into more specialized units, e.g., divided between civil and criminal appeals, so that each justice would not be required to know all of the vast universe of law on every subject. Rules could be enacted such that each appellate district need only follow the precedent of its own district and not the others. The Supreme Court could, as it does now, resolve conflicts between the district when it becomes necessary.

Even if none of these alternatives are entirely satisfactory, the status quo cannot be maintained. The public is entitled to know the quality of justice it is receiving. They should not sacrifice their constitutional rights so that the judiciary can maintain the pretense that sufficient resources exist to fulfil their constitutional duties.

The point is that creative thought is necessary to address the real concerns which motivated the non-publication/non-citation rules. The time is over for relying on a system of "hidden justice" which is unfair, does not work, and only serves to undermine the integrity of the judiciary in the eyes of the public.

II.   THE SUPERIOR COURT HAS SUBJECT MATTER JURISDICTION.

Respondents demurred to the complaint on the grounds that the superior court had no jurisdiction over the subject matter of this action. (CT 171-72, citing Code Civ. Proc. § 430.10(a).) This contention is without merit.

The California Constitution provides that superior courts have original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition. (Cal. Const., art. VI, § 10.) In fact, attempts to bypass the superior court and seek a writ of mandate in the appellate court are disfavored. (Los Angeles County v. Nesvig (1965) 231 Cal.App.2d 603, 608.) Superior courts have exclusive original jurisdiction "in all other causes except those given by statute to other trial courts." (Cal. Const., art. VI, § 10.) Respondents failed to identify any statutes removing jurisdiction over this matter from the trial courts and vesting it in the Supreme Court.

The jurisdiction of the superior court over proceedings for writ of mandate includes the power to determine whether rules promulgated by the Judicial Council are unconstitutional. (See California Court Reporters, supra, 39 Cal.App.4th 15 [trial court heard merits of petition challenging validity of rule 33(e), 891, 892, and 980.3.)

Respondents' reliance on Government Code § 68902, providing that appellate opinions "shall be published under the general supervision of the Supreme Court" is misplaced. (CT 188-89.) That statute does not purport to remove from the superior court jurisdiction to adjudicate disputes over the constitutionality of the non-publication/non-citation rules. Civil Code section 526, cited by respondents below, also does not apply here. (CT 188.) That statute relates to restrictions on the granting of an injunction, does not relate to the jurisdiction to adjudicate the matter. Case law is clear that with regard to unconstitutional statutes, trial courts have "full authority to enjoin the execution of such enactments." (Conover v. Hall (1974) 11 Cal.3d 842, 850.) Indeed, the Supreme Court, who respondent asserted has jurisdiction over the matter, has no jurisdiction over injunction matters. (Cal. Const., art. VI, § 10; Signal Oil & Gas v. Ashland Oil & Refining Co. (1958) 49 Cal.2d 764, 774, fn. 4.)

It is clear that the superior court has subject matter jurisdiction over this matter, and the case should be remanded to the superior court for further proceedings.

III.   APPELLANT HAS STANDING TO BRING THIS CASE.

Respondent claimed below that appellant had no standing to sue because he brought no actual "case or controversy" to the court. (CT 190.) This is erroneous. California's principles for standing are considerably more liberal than those under the federal constitution. (Environmental Protection Information Center v. Dept. of Forestry & Fire Protection (1996) 43 Cal.App.4th 1001, 1020.) The rules of standing are "greatly relaxed where the question is of public interest." (Tenants Ass'n. of Park Santa Anita v. Southers (1990) 222 Cal.App.3d 1293, 1299-1300.)

To challenge a statute on due process or equal protection grounds, the party must show that the statute either caused or threatens to cause an injury to his interests. (City of Irvine v. Irvine citizens Against Overdevelopment (1994) 25 Cal.App.4th 868, 874.) Appellant need not show that he was actually deprived of some tangible benefit as a result of the statute, such as being unable to cite a particular unpublished opinion. Rather, it is sufficient that appellant show that he is a member of a class of persons who are or could be subject to the unconstitutional effects of the particular statute. (Cornelius v. Los Angeles Co. Metropolitan Transp. Authority (1996) 49 Cal.App.4th 1761, 1768.)

As a citizen and an attorney, appellant is entitled to know and apprise himself of the laws of this state. Because the publication rules allow the courts to make "secret law" which may imminently subject appellant to criminal or civil liability, or conversely, to suppress precedents which would protect his interests, he has standing to initiate this suit. As a voter, who must decide every twelve years whether to vote to retain appellate justices, appellant has a vital interest in all opinions and the legal reasoning contained therein.

Appellant additionally has standing because these rules constitute a prior restraint on his free speech rights. Where a statute imposes a prior restraint, a plaintiff is not required to show a concrete injury. (Lakewood v. Plain Dealer Publishing Co. (1988) 486 U.S. 750, 756-67; Burton v. Municipal Court (1968) 68 Cal.2d 684, 688.) Because appellant 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.

We Americans have a magnificent inheritance. That inheritance is a system of government that insists upon open demonstration of intellectually honest, rational, logical relation to law in every instance of government relationship to each individual in our society. The reported opinion, made important to all by stare decisis and equal protection of law, is the mechanism by which the law is perfected, and the perfected law is taught by it as enlightenment to our community.

If there is a dream shared by all of humankind, it is the forward promise of our Pledge of Allegiance, "With liberty and justice for all", when all of us will be so adept at recognizing the difference between right and wrong that none will use liberty to infringe upon that which is just for another. An element of achieving that worthy goal is stated by the biblical prophet Amos, reiterated by Dr. Martin Luther King, Jr., of blessed memory. "Let justice well up as the waters, and rightousness go forth as a mighty stream."

Justice is the foundation of all ethical qualities in man and government. If justice is not to well up in the official reports of our courts, where shall it?

Wherefore, for the foregoing reasons, appellant respectfully requests that this Court reverse the trial court's order sustaining the demurrer without leave to amend and dismissing the case, and remand to the trial court for further proceedings.

DATED:

Respectfully submitted,

      Kenneth J. Schmier

      Jeanne M. Fahey

      Patrice M. Brymner

ATTORNEYS FOR APPELLANT

^[1]  Because of the nature of this case and the procedural posture on appeal, there are very few "facts" relevant to the issues which are contained in the appellate record. Appellant feels it is vital to the understanding of the issues in this case to provide a full historical and legal context prior to any argument Therefore, appellant will depart somewhat from a tradition "Statement of Facts," which ordinarily cites only to evidence contained in the appellate record. Return to Text

^[2]  The rule contains limited exceptions which do not affect the analysis. (Rule 977(b).) Return to Text

^[3]  (See Uelman, Publication and Depublication of California Court of Appeal Opinions: Is the Eraser Mightier than the Pencil (1993) 26 Loyola L.A. L. Rev. 1007; Gerstein, "Law by elimination:" depublication in the California Supreme Court (1984) Judicature, Vol 67, No. 6 at pp. 293-298; Biggs, Censoring the Law in California: Decertification Revisited (1979) 30 Hastings L.J. 1577.) Return to Text

^[4]  (Grodin, The Depublication Practice of the California Supreme Court (1984) 72 Calif. L. Rev. 514, 522 [stating that "Depublication is most frequently used when the court considers the result to be correct, but regards a portion of the reasoning to be wrong and misleading."]) Return to Text

^[5]  To the extent deemed necessary, appellant was willing and able to amend his complaint to allege specific instances where this has occurred. Return to Text

^[6]  The California Supreme Court, following Jim Beam and Hunter, have similarly rejected "selective prospectivity." (Waller v. Truck Ins. Exchange (1995) 11 Cal.4th 1, 24-25.) Return to Text

^[7]  Appellant can and will amend his complaint to allege the existence of such cases. Return to Text

^[8]  These concerns are essentially identical to those motivating other jurisdictions. (See The Non-Precedential Precedent, supra, 78 Colum. L. Rev. at pp. 1185-86; Digital Influence, supra, 85 Calif. L. Rev. at pp. 549-51.) Return to Text

^[9]  To pass constitutional muster, any scheme of selective publication must, at the very minimum, provide for the publications of opinions which create new rules of law or which change or modify the existing law. Many of the federal circuits recognize this fact and mandate publication for opinions which, among other things, create new rules of law or change or modify existing rules of law. (See e.g., D.C. Cir. R. 36(a)(2); 1st Cir. R. 36.2; 5th Cir. R. 47.5.1; 7th Cir. R. 53(c)(1).) Return to Text

^[10]  In opposition to demurrer, appellant sought leave to amend the complaint to allege examples of substantive changes to the law contained in unpublished opinions. (CT 233-34.) Appellant noted that under the plain language of rule 977(a), he was prevented from even citing such cases to the court. (CT 233.) Return to Text

^[11]  Neither the amendment of Article 6, § 14 in 1966, nor the enactment of Govt. Code § 68902 in 1967 affected Auto Equity Sales' command that trial courts follow the "decisions" of courts of superior jurisdiction. These provisions related only to the authority of the Supreme Court to provide for publication of opinions in the official reports. They did not purport to repeal Auto Equity Sales' holding, nor did they purport to restrict the precedential value of those decisions not published in the official reports. As previously discussed, California had a long history of a "two tier" publication track -- with some opinions published in the Official Reports and others published privately. (The Use of Unreported Cases, supra, 24 Hastings L.J. at p. 47.) All opinions, regardless of where they were published, were binding precedent. (Id.) Return to Text

^[12]  Appellant can and will amend his complaint if necessary to include specific factual allegations supporting this claim. Return to Text

^[13]  Properly construed, Rule 979 would only authorize the Supreme Court to remove the decision from the official reports. It would not authorize the Court to "make precedent disappear" which is how this rule is currently (and improperly) used. (See Uelman, Publication and Depublication of California Court of Appeal Opinions: Is the Eraser Mightier than the Pencil (1993) 26 Loyola L.A. L. Rev. 1007; Gerstein, "Law by elimination:" depublication in the California Supreme Court (1984) Judicature, Vol 67, No. 6 at pp. 293-298; Biggs, Censoring the Law in California: Decertification Revisited (1979) 30 Hastings L.J. 1577.) 1 54