DANIEL E. LUNGREN,
Attorney General of the State of California
LINDA A. CABATIC,
Senior Assistant Attorney General
Supervising Deputy Attorney General
THOMAS A. BLAKE, (State Bar No. 51885)
Deputy Attorney General
50 Fremont Street, Suite 300
San Francisco, California 94105-2239
Telephone: (415) 356-6566
Attorneys for: Respondents SUPREME COURT OF CALIFORNIA, CALIFORNIA COURT OF APPEAL, and JUDICIAL COUNCIL OF CALIFORNIA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE CITY AND COUNTY OF SAN FRANCISCO
| MICHAEL SCHMIER, et al.,
SUPREME COURT OF CALIFORNIA,
CALIFORNIA COURTS OF APPEAL,
and CALIFORNIA JUDICIAL COUNCIL,
| CASE NO. 995232
POINTS AND AUTHORITIES IN
OPPOSITION TO TEMPORARY
INJUNCTION AGAINST THE
SUPREME COURT OF CALIFORNIA,
CALIFORNIA COURT OF APPEAL
AND CALIFORNIA JUDICIAL COUNCIL
Date: July 3, 1998
Time: 9:30 a.m.
Dept: 302 Hon. Raymond D. Williamson
Plaintiff asks this Court to enjoin the higher courts from all application of Rules 976(b) and (c), 977, 978, and 979, California Rules of Court. This request is in the abstract; there is no particular decision at issue, and plaintiff does not ask this Court make to any specific opinion citable.1 The injunction plaintiff seeks would strike down the entire selective publication system, requiring every Court of Appeal decision to be published in the Official Reports.
Plaintiff's application for injunctive relief fails for several reasons. First, Rules 976(b) and (c), 977, 978, and 979 (hereinafter "publication rules,"2) are grounded in the California Constitution, article VI, section 14, and supported by statutory law. Plaintiff fails to cite any authority that casts doubt upon the constitutionality of the publication rules.3 Second, plaintiff fails to show any actual harm that results from continued application of the publication rules. No actual case or controversy exists. As a result, plaintiff falls far short of the standard for the injunctive relief he seeks, and his application must be denied.
TEMPORARY INJUNCTION DOES NOT LIE UNLESS THE PLAINTIFF IS LIKELY TO PREVAIL ON THE MERITS AND THE POSSIBILITY OF INTERIM HARM TO PLAINTIFF OUTWEIGHS THE HARM THAT DEFENDANT IS APT TO SUFFER.
The Supreme Court set down the standard for granting preliminary injunctions in scrutinizing a San Francisco ordinance requiring escort service operators to obtain permits. In Cohen v Board of Supervisors (1985) 40 Cal.3d 277 at 286, the State high court held:
"This court has traditionally held that trial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to suffer if the preliminary injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued." (Emphasis added.)
Review is on the abuse of discretion standard. ( People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109.)
The instant application fails on both grounds: as discussed below, there is no likelihood that plaintiff will prevail on the merits, and there is no allegation that any person will suffer any identifiable harm, while issuance of the injunction would turn the appellate process into disarray.
THE PLAINTIFF IS UNLIKELY TO PREVAIL ON THE MERITS BECAUSE THE PUBLICATION RULES ARE VALID.
A. The Publication Rules Are Well Grounded in Constitution and Statute.
Article VI, § 14, California Constitution provides that, "The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person." (Emphasis added.)
In addition to this independent constitutional authority to make rules, there is a statutory basis for the publication rules. The Legislature codified the Supreme Court's authority to provide for the publication of decisions and, impliedly, to select which decisions are to be allowed to stand as decisional law in Government Code section 68902. That statue provides, in its entirety, as follows:
"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. (Stats.1967, c. 172, p. 1270, §2; emphasis added.)
The Judicial Council4 enacted the publication rules challenged here in order to implement the Supreme Court's constitutional and statutory mandate to govern publication of appellate opinions. The Supreme Court adopted the publication rules pursuant to its express power under the Constitution. See People v. Valenzuela, 86 Cal.App.3d 427, 440 fn. 3:
"Rule 977 was also adopted as a rule of court by the Judicial Council. Article VI, section 6, of the California Constitution, Penal Code section 1247k and Code of Civil Procedure section 901 authorize the Judicial Council to make rules of court. Under this authority the Council adopted rules 15 and 105 relating to the form and content of briefs on appeal. Since the citation of opinions is generally made in briefs, rule 977 necessarily relates to the content of briefs. Therefore, the Judicial Council joined with the Supreme Court in the adoption of rule 977.
B. The Publication Rules Have Been Uniformly Upheld By California Appellate Courts.
In light of the clear constitutional and statutory authority upon which the publication rules are based, every appellate court, state and federal, that has considered the validity of Rules 976, 977, 978 and 979, California Rules of Court, has concluded that they are valid.
For example, in People v. Superior Court (Clark) (1994) 22 Cal.App.4th 1541, the Court of Appeal issued a writ of mandate to reinstate special circumstances allegations in a murder prosecution. Defendants alleged that the law of special circumstances had been rendered uncertain after simultaneous passage of Propositions 114 and 115, followed by a Court of Appeal opinion that was depublished after appearing in the advance sheets. Accepting the validity of the publication rules, the Clark court summarized operation5 of the rules:
"In short, while an appellate court may certify (i.e., approve) an opinion for publication, the ultimate decision as to whether the opinion shall be published rests with the Supreme Court. (People v. Superior Court (Clark) (1994) 22 Cal.App.4th 1541, 1547-48; emphasis added.)
In In re Williams (1977) 69 Cal.App.3d 840, 842, the Court of Appeal ordered the Adult Authority to consider narcotics trafficker Williams for parole without regard to a five-year minimum incarceration period that it found constitutionally disproportionate. The court recognized that the precedential value of an earlier opinion had "died aborning when the Supreme Court inexplicably ordered the [earlier] opinion not to be published," but the Williams court did not cast doubt on the validity of Rule 976.
In 1978, no less a scholar than Justice Bernard Jefferson extensively discussed the validity of Rule 977 in People v. Valenzuela, supra, 86 Cal.App.3d 427, 441-443. Plaintiff dismisses Justice Jefferson's opinion as a dissent (Points & Auth., p. 13), without noting that the Justice's eight-page discussion of the validity of Rule 977 was prompted by the majority's failure to discuss the publication rules at all. (Valenzuela, supra, at 433). Noting that the Los Angeles Appellate Department had declared Rule 977 to be invalid and then considered one of its own unpublished opinions (Valenzuela, supra, at 438), Justice Jefferson thought it important to address the validity of Rule 977:
"Contrary to the view of the majority, I consider the issue of the validity of rule 977 of the California Rules of Court of sufficient importance to make it appropriate for me to discuss the question."
"In my view, rule 977 is a valid rule. I consider the majority opinion of the appellate department to the contrary, to be erroneous and untenable. The appellate department opinion sets forth two reasons for its view of invalidity: (1) that rule 977 violates basic concepts of the doctrine of stare decisis; and (2) that rule 977 is contrary to the superior command of Civil Code section 22.2. Neither of these reasons is persuasive."
. . . .
"It is to be noted that neither section 14 of article VI of the California Constitution nor Government Code section 68902 contains any reference to the legal effect to be given to the opinions ordered published or nonpublished by the Supreme Court. The question presented is what is the authority for the Supreme Court to order the noncitability by court or party of nonpublished opinions?"
"It does not require extended discussion to reach the conclusion that rule 977 is required, or at least expedient, to make rule 976 effective. I need refer to only one of a number of reasons advanced to support the conclusion that the "noncite rule" (rule 977) is needed to make effective the selective publication rule (rule 976). Permitting the citation of unpublished opinions would create fundamental problems of unfairness between parties and their counsel who possess unlimited funds for research and those with very limited budgets. The "unfairness" argument is set forth in an opinion by a federal appellate court dealing with the status of its own unreported memorandum decisions. 'We prefer that they [unreported memorandum decisions] not be cited to us for an additional reason: since they are unpublished and generally unavailable to the bar, access to them is unequal and depends upon chance rather than research. . . . .' [Citation.]"
"However, the fact that rule 977 serves as an effective aid to the usefulness of rule 976 does not tell us the legal basis for the Supreme Court's authority and power to promulgate rule 977. I find the Supreme Court's power and authority to create rule 977 in two sources. One is that of the constitutional and statutory provisions previously referred to as authorizing specifically the selective publication rule (rule 976): section 14 of article VI of the California Constitution and Government Code section 68902. . . . . It is obvious that the legislative intent undergirding the constitutional and statutory provisions referred to was to provide for the orderly development of the decisional law with due consideration to factors such as the expense, unfairness to many litigants, and chaos in precedent research, if all appellate opinions were required to be published, or, if those ordered to be nonpublished would have the same effect and precedent value as those which were published. . . . ."
. . . .
"Rule 977 is also a valid exercise of the authority and power of the Supreme Court by virtue of the principle that the Supreme Court possesses 'inherent supervisory powers over the courts of this state.' . . . . The noncite rule--rule 977--is clearly a rule fashioned 'in the interest of the sound administration of justice' as is the exclusionary evidentiary rule fashioned in Coleman." (People v. Valenzuela, supra, 86 Cal.App.3d 427, 439-442; emphasis added.)
Plaintiff contends that the Supreme Court's present publication rules violate Civil Code section 22.26 and the doctrine of stare decisis (Compl., 5-6.). Justice Jefferson lays this contention to rest, writing that Rule 977 does not contravene Civil Code section 22.2:
"The doctrine of stare decisis is not mandated by any constitutional principle but is a rule of decisional law founded upon public policy in the interests of justice. As a rule of decisional law that carries out a sound public policy in the interest of sound administration of justice, the Supreme Court may pick and choose as to what opinions shall be given precedential value under the stare decisis doctrine."
"As stated in Jones, supra, 465 F.2d 1091, 1094: "We concede, of course, that any decision is by definition a precedent, . . . But . . . we think it reasonable to refuse to treat them (unreported memorandum decisions) as precedent within the meaning of the rule of stare decisis." And in Helvering v. Hallock (1940) 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604, our nation's highest court explained the policy limits of the stare decisis principle by observing: 'We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.'" (People v. Valenzuela, supra, 86 Cal.App.3d 427, 442; emphasis added.)
Justice Jefferson also analyzed the interplay of Civil Code section 22.2 with the publication rules:
"'The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.' The thesis is advanced that unpublished opinions, along with published opinions, constitute evidence of what the common law is. '[J]udicial decisions do not themselves constitute the common law, but are merely evidence of the common law.' [Citation] Hence, it is suggested, the application of rule 977 to preclude reference to nonpublished opinions is violative of Civil Code section 22.2. This position is not well taken."
"The Supreme Court which is the ultimate creator of the decisional law of this state is free to change the decisional law as it sees fit in the absence of constitutional or statutory restraints. It thus was free, by the promulgation of rule 977, to limit the cases a party in court may cite as evidence of the common law to cases that are published in the official reports. The inability of a party to cite a nonpublished opinion as evidence of what constitutes the common law in no way contravenes the provisions of Civil Code section 22.2. (Valenzuela, supra, 86 Cal.App.3d 427, 443-444; emphasis added.)
C. The Federal Courts Also Have Upheld the Publication Rules.
In State Farm Mut. Auto. Ins. Co. v. Davis (9th Cir. 1991) 937 F.2d 1415, 1420, the Ninth Circuit Court of Appeals considered Rule 977. In a lengthy footnote, the Circuit Court applied California insurance law to determine whether a shooting from a moving automobile involved the "use" of a vehicle within the policy language. State Farm, arguing that a California precedent had relied heavily on a depublished decision, asked the Circuit Court to infer that the State Supreme Court would not have found coverage. The Federal court applied Rule 977:
"The California Constitution, article VI, sec. 14, authorizes the supreme court to order depublication of an opinion ordered published by the court of appeals. See also California Rules of Court 976(c)(2) (Supp.1990). . . . "
"California's depublication procedure does not send clear signals. As former Justice Joseph R. Grodin pointed out, "'[D]epublication' does not mean that the supreme court necessarily disapproves of the underpinnings of the decision. Nor does it mean that the court considers the outcome to be wrong, just as a straight denial of hearing does not necessarily carry with it the court's imprimatur. [¶] 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." Grodin, The Depublication Practice of the California Supreme Court, 72 Calif.L.Rev. 514, 522 (1984). Since we have no way of knowing which, if either, part of the court of appeal's decision the supreme court felt was defectively reasoned, we hold that the depublication of Munoz should not be considered in determining California law on the coverage issue. In so doing we treat a depublished decision the same way we would treat a decision that the court of appeal initially declined to publish. See Calif.Ct.R. 977(a) (Supp.1990) (non- published opinions "shall not be cited or relied on by a court or a party in any other action or proceeding ..."). (State Farm v. Davis, supra, 937 F.2d 1415, 1420, fn.4.)
Nowhere in its analysis did the Ninth Circuit find constitutional infirmity in the California publication rules.
D. Every Federal Circuit Court of Appeals in the Nation Is Also Selective In Publication of Opinions.
The selective publication of appellate opinions, far from being a deviation from the norm and a denial of equal protection and due process, is a modern necessity that is used by every Federal circuit court as well as the California Supreme Court. Since 1976, every United States Court of Appeals has implemented rules for selective publication.7 For instance, the Ninth Circuit's scheme for selective publication ("opinions" are published; "memoranda" are not) is found in Circuit Rules 36-1 et seq. Like California's Rule 977, the Ninth Circuit's Rule 36-3 provides that dispositions other than opinions and orders designated for non-publication are not precedential and may not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
E. The Right To Appeal Is Not Unlimited and Can Be Regulated and Curtailed.
The right to appeal is not unlimited and can be regulated by statute. The Legislature describes and circumscribes the appellate process. Witkin notes that:
"There is no constitutional right to an appeal or other review of a judicial decision; thus, the Legislature has power to change the procedure, limit the right. . . . " (Witkin, California Procedure (4th Edition, 1997), Vol 9, p. 60; original emphasis.)
Professor Witkin further noted that:
"The California Supreme Court and the Courts of Appeal derive their appellate jurisdiction from the California Constitution (Art. VI, section 11). The right of a party to appeal, however, is wholly statutory and no judgment or order is appealable unless expressly made so by statute. [Citation]." (Witkin, California Procedure, Appeal, Vol 9, p. 62; emphasis added.)
It follows that, as appeals are not unlimited and can be regulated, the Legislature and the Judicial Council can limit the citation of authorities in appellate pleadings.
F. Validity Should Be Presumed.
In assessing a Constitutional challenge, the court starts from the presumption that the measure is constitutional; all doubts are resolved in its favor, and the asserted constitutional defect must be "clear and unquestionable." (Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 260 [Statute imposed fees for school transportation.].) The challenged provision is to be construed "in a manner that avoids any doubt about its validity." (Kees v. Board of Medical Quality Assurance (1992) 7 Cal.App.4th 1801, 1813; emphasis in original. [Statute required Medical Board licensees to undergo mental examination].) Because the Rules of Court are adopted by the judicial branch under a grant of authority similar to, and equal to, the grant of authority of the Legislature, the rules should be lightly invalidated. See California Constitution, article VI, section 6 [Judicial Council "shall adopt rules for adopt rules for court administration, practice and procedure, not inconsistent with statute.], at footnote 4, supra.
THERE IS NO SHOWING OF A POSSIBILITY OF HARM TO PLAINTIFF IN THE INTERIM THAT OUTWEIGHS THE MISCHIEF THAT WOULD BE DONE IN THE APPELLATE COURTS.
A. There Is No Showing of Threatened Harm to Plaintiff Sufficient to Justify Enjoining Higher Courts.
Plaintiff's papers do not, and cannot, allege that he or any other person will suffer any serious harm if this Court does not attempt to enjoin the Courts above it. Vague and conclusory allegations that plaintiff "is interested as a citizen in having the laws executed" (Compl., 2: 3-5) and that plaintiff is a "Private Attorney General" (Compl., 9: 25-26) do not compensate for the fact that no specific precedent is at issue. Indeed, plaintiff does not specify even a particular rule of court that he would like this court to invalidate; instead, he invites the court to overturn no less than four rules of court, nearly all of an entire Division of the California Rules of Court. Petitioner points to no harm that will befall him by continued operation of the publication rules, and there is no person before the court who alleges injury through inability to cite any particular opinion. The moving papers are nothing more than an invitation to legislate.
B. The Defendants Would Suffer Irreparable Harm If the Higher Courts Were Enjoined.
The Rules of Court challenged by plaintiff are on an equal plane with statutory enactments in the operation of the appellate courts. See Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 884 (rules adopted by the Judicial Council "have the force of positive law" (citation omitted)). Further, Government Code section 68902, which grants the Supreme Court supervision over publication, is implicated in the challenge. Any time a State is enjoined from effectuating statutes, it suffers a form of irreparable injury. Statutes are presumptively constitutional, and absent compelling equities on the other side, should remain in effect pending a final decision on the merits.
THIS COURT SHOULD NOT ENJOIN THE SUPREME COURT AND THE JUDICIAL COUNCIL FROM FOLLOWING THE PUBLICATION RULES.
A. This Court Should Defer To Higher Judicial Authority.
It is the Supreme Court that possesses "inherent supervisory powers over the courts of this state." People v. Coleman, supra, 13 Cal.3d 867 [Declaring judicial rule of evidence as to probation violation hearing testimony where criminal charges pending.] Government Code section 68902, supra, provides that appellate opinions "shall be published under the general supervision of the Supreme Court." (Emphasis added.) It is respectfully submitted that this Court should not attempt to substitute its own supervision of the publication/depublication policy for that of the Supreme Court, especially in the absence of a particular and specific fact situation. In the cases set out above, the Court of Appeal has declined to do so even where there were actual cases and controversies.
Justice Jefferson noted in People v. Valenzuela, supra, 86 Cal.App.3d 427, 442:
"'(u)nder 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. . . . Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court." (Citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; emphasis added.)
Two California statutes pertain. First, Code of Civil Procedure Code section 526, subsection (b)(6) provides that injunction will not lie, "[t]o prevent the exercise of a public or private office, in a lawful manner, by the person in possession." The defendants are clearly in possession of public offices, and the Rules of Court here challenged are lawful.
Second, Civil Code section 526, subdivision 2, requires a showing of "waste, great or irreparable injury." Here, the requested injunction concerns appellate procedure and no showing of great or irreparable injury is made.
Injunction is available to attack unconstitutional statutes. See, Conover v. Hall (1974) 11 C.3d 842, 850 [Injunction lies re: welfare benefit limitation.]. However, Conover and its progeny involved statutes found invalid in the context of specific persons seeking specific relief. In the instant case, the publication rules are constitutionally valid and there is no particular factual situation requiring relief. The Code of Civil Procedure therefore precludes issuance of an injunction.
B. It Would Be Impractical and Unfair to Some Litigants to Publish Every Decision.
Balanced against the desire to have every piece of law available is the fact that, even with modern information technology,8 it is not feasible to include every appellate disposition in the official reports. The small benefit of access to marginally useful case law is to be weighed against the costs of both publishing and perusing the vastly greater volume of material. This balancing should be performed by the Supreme Court and the Judicial Council, as authorized by Constitution, article VI, section 14, rather than by a trial court.
All decisions of all of the Appellate Courts of California cannot readily be published or read. In fiscal 1994-1995, only 8% of the opinions of the Court of Appeal were published. (Judicial Council of California, Report to the Governor and the Legislature, 1996, p. 94.) In 1996-1997, 7% of majority opinions written by the Court of Appeal were published. (Judicial Council of California, Court Statistics Report, Annual Report, Volume 1, 1998, p. 29.) If every opinion turned out by the Court of Appeal were published, noteworthy or not, as plaintiff apparently urges, the decisional law of the State would expand every set of official reports by a factor of 14. Imagine a law library with fourteen times the present volumes, or a law library that can only be used by means of a sophisticated computer. The increase in quality would be far, far smaller because the appellate courts already certify for publication, under standards published in Rule 976, all the worthwhile opinions: those that establish a new rule of law, those that apply existing law to significantly different facts, those that modify or criticize exiting rules of law, those that resolve or create apparent conflicts in the law, and those that make significant contribution to the legal literature. (Rule 976, subd. (a); Rule 976.1, subd. (a); Rule 978, subd. (a).)
In the Report of The Chief Justice's California Advisory Committee for an Effective Publication Rule, of which plaintiff has requested judicial notice, the difficulties in publishing all opinions is recognized:
"The committee's initial conclusion is that a return to full publication in official format is impractical because of the great volume of court of appeal opinions." (Report, supra, June 1, 1979, p. 2.)
"Despite these problems, the volume of appellate decisions precludes a return to full publication of all opinions in the current format of the official reports. It is estimated that publication of the entire output of the California Courts of Appeal would increase the number of volumes of official reports issued each year from about 12 to more than 60. [Citation.] The costs of such a flood of books, in terms of purchasing the books themselves, finding library space to house them, and taking the time to research and read cases, would be prohibitive. Full publication in the present official format is simply impractical." (Report, supra, June 1, 1979, p. 3; emphasis added.)
C. There Is No Actual Case or Controversy.
What decision, not presently citable, would plaintiff have this court make into the law? What litigant would be harmed, and how, by the refusal to do so? Plaintiff does not allege that any particular person or entity will suffer any identifiable harm as a result of the depublication of any particular case. There is, therefore, no actual case or controversy before this court. In essence, the complaint asks this Court to reweigh the merits of California's depublication rules and legislate changes that the Supreme Court and the Judicial Council have declined to make. While there would perhaps be a justiciable controversy here if plaintiff were seeking to cite a favorable but unpublished opinion in a matter actually pending before some tribunal, plaintiff does not point to any such real-life controversy. In contrast, all litigants benefit from the existence of a stable, manageable body of decisional law that in which all citable authority is equally available to all.
Although the Federal and State Constitutions are structurally similar in important ways and both provide a tripartite separation of powers, California state courts are not bound by the strict "case or controversy" requirement of Federal jurisprudence (See, Justice Baxter's concurrence inStop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 589-90; Environmental Protection Information Center v. Department of Forestry and Fire Protection (1996) 43 Cal.App.4th 1011, 1020.) But, as Justice Sills wrote in his pithy concurring and dissenting opinion in In re Andrew B. (1995) 40 Cal.App.4th 825, 866:
"The Court of Appeal exists to examine real cases and controversies, not comb through trial transcripts as if its judges were a group of law professors looking for exam questions or class hypotheticals. Perhaps because of the experience of law students in their first weeks of law school, where some Kingsfieldian type peered over half-glasses and demanded that students cough up the issue, lawyers have acquired the wrongheaded notion that courts exist to pontificate on "issues of law." Not so. Courts exist to decide cases. [fn4]
"The proper role of the courts was delineated in Neary v. Regents of University of California (1992) 3 Cal.4th 273, 281-282 [10 Cal.Rptr.2d 859, 834 P.2d 119]. "The primary purpose of the public judiciary is 'to afford a forum for the settlement of litigable matters between disputing parties.' ... We do not resolve abstract legal issues, even when requested to do so. We resolve real disputes between real people." (In re Andrew B., supra, at 866.)
Justice Sills sums up the situation concisely in his footnote 4 at page 866:
"Which is the whole point of the doctrines of mootness and justiciable controversy, as well as the disinclination of courts to render advisory opinions. Unless an issue actually makes a difference, courts should not decide it. They have better things to do than conjure legal questions and then debate them." (In re Andrew B. v. Herbert B., supra, 40 Cal.App.4th at 866.)
This court should not be drawn into rewriting the Rules of Court that have been set down by the Judicial Council and the Supreme Court on speculative, abstract, and hypothetical pleadings.
Because the publication rules are valid, because there is no specific factual controversy now before the Court, and because plaintiff cannot show any imminent danger of harm that outweighs the chaos of invalidating the publication rules would bring, the petition for preliminary injunction should be denied with prejudice.
Dated: June 6, 1998
DANIEL E. LUNGREN, Attorney General
of the State of California
LINDA A. CABATIC,
Senior Assistant Attorney General
EILEEN GRAY, Supervising
Deputy Attorney General
THOMAS A. BLAKE,
Deputy Attorney General
Attorneys for Respondents SUPREME COURT OF CALIFORNIA, CALIFORNIA COURT OF APPEAL, and JUDICIAL COUNCIL OF CALIFORNIA
"To improve the administration of justice the council shall survey judicial business and make recommendations annually to the Governor and the Legislature, adopt rules for court administration, practice and procedure, not inconsistent with statute, and perform other functions prescribed by statute." (Emphasis added.)Return to text
"The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State." (Added by Stats.1951, c. 655, p. 1833, § 1.)Return to text