April 26, 2004
BILL ON UNPUBLISHED OPINIONS DROPPED
The chief justice agrees to study how the rules are applied, but remains opposed to such cites.
By Linda Rapattoni

Daily Journal Staff Writer        

SACRAMENTO - A lawmaker has dropped a bill that would have allowed lawyers to cite unpublished cases in their court briefs, opting instead to ask the state's chief justice to study how judges decide which opinions to publish.

        The chief proponents of SB1655 by Sen. Sheila Kuehl, D-Santa Monica, said Friday they hope a movement in the federal courts to cite unpublished cases spurs California's judiciary to reverse its ban on citations.

        But Chief Justice Ronald George said Friday he remains opposed to citation of unpublished opinions and has agreed only to appoint a committee to study the criteria in the rule governing the practice.

        "There's no question about considering allowing unpublished opinions to be cited," George said. "The only matter I agreed to study was whether or not the criteria that guide the courts of appeal on whether or not to publish opinions need to be modified in some way and if the courts of appeal are properly applying the criteria."

        Rule 976 (b) states that an opinion may be published only if it establishes a new rule of law or applies an existing rule to a new set of facts, or criticizes an existing rule; resolves a conflict in the law; involves a legal issue of continuing public interest; or makes a significant contribution by reviewing the development of a common law rule or history of a law.

        Kenneth Schmier, founder, CEO and general counsel of Nextbus Information Systems Inc., and his brother, Michael Schmier, both lawyers in Emeryville, said they hope recent developments in federal court rules would spark changes in California.

        The Judicial Conference's Federal Advisory Committee on Appellate Rules voted April 14 in favor of citing unpublished opinions in federal courts. It is the first step in a long process for getting the proposal approved.

        "The last time this issue was before Kuehl in the Assembly Judiciary Committee in 2000, we were disappointed when she and all the other Democrats got up and left the hearing," said Kenneth Schmier. "But then we learned she had arranged a compromise so that all appellate rulings would be published online and that was a significant development."

        Kuehl was unavailable for comment Friday. But a staff person in her office confirmed the senator had decided to drop the bill after meeting April 12 with George. Kuehl said earlier that she had heard from many people who opposed her bill.

        The bill would have allowed lawyers to cite unpublished opinions for their persuasive value, and it would have provided a safe harbor for lawyers who failed to cite an unpublished opinion so they couldn't be sued for negligence.

        Alex Kozinski, a 9th U.S. Circuit Court of Appeal judge strongly opposed to citation of unpublished opinions, has pointed to letters written by an overwhelming majority of his colleagues stating their opposition as well.

        The Schmiers' critics said allowing citation of unpublished cases would pose significant research costs that could restrict access to appellate review and dilute the value of published opinions.

        Proponents said an informal survey of lawyers in states that allow citation indicated it did not require significant research time or add to costs. They said banning citation of cases that make up 85 percent of opinions leaves the system open to corruption, allowing judges to decide which of their opinions are significant.