Benjamin Elliot Kaplan (SBN 43456)
Douglas C. MacLellan (SBN 169933)
LAW OFFICES OF KAPLAN & SAM
Opera Plaza, Suite 2090
601 Van Ness Avenue
San Francisco, California 94102
Telephone: (415) 447-8300

Kenneth J. Schmier (SBN 62666)
1475 Powell Street
Emeryville, California

Attorneys for Plaintiff/Petitioner
MICHAEL SCHMIER

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE CITY AND COUNTY OF SAN FRANCISCO

Plaintiff/Petitioner MICHAEL SCHMIER [Hereinafter, "Petitioners"] hereby submits his reply to DEFENDANTS' OPPOSITION TO TEMPORARY INJUNCTION AGAINST THE SUPREME COURT OF CALIFORNIA, CALIFORNIA COURT OF APPEAL, and CALIFORNIA JUDICIAL COUNSEL, (hereinafter referred to as "OPPOSITION").

Defendants/Respondents [hereinafter "Respondents"] fail to address issues of constitutional dimensions respecting equal protection, due process and the First Amendment which are raised by Rules 976(b) and (c), 977, 978, and 979 of the California Rules of Court (hereinafter "publication rules"). The principle that litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally, is nowhere addressed by Respondents.

Respondents claim that, merely because the Legislature and Judicial Council can regulate the right to appeals, it necessarily follows that the Judicial Council may limit the citation of authorities in appellate pleadings. While the right of a party to appeal is wholly statutory in origin, and may be limited, when an appeal is afforded it cannot be granted to some litigants and capriciously or arbitrarily denied to others without violating the Equal Protection Clause [of the United States Constitution]. [Lindsey v. Normet, (1972) 405 U.S. 56, 77.]. The present selective publication system has no standard requiring publication of any opinion. An Appellate Judge may essentially determine whether an opinion yet to be written will ultimately be published or not, regardless of the significance of the issues presented in the appeal. The lack of standards separates litigants into those whose causes have been carefully considered, and for whom an appeal may be sought to the Supreme Court, and those subjected to "secret law", which is increasingly review-proof by the Supreme Court.^[1] 

Respondents further argue that "[t]he 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." (OPPOSITION, page 8, lines 6-8). Usage, irrespective of how widespread, does not render the practice immune from attack. Indeed, it is precisely because of the courts' current use of the publication rules, which are unconstitutional, that Plaintiff/Petitioner now seeks injunctive relief.

Respondents cite the delegation of rule-making authority under Article VI, §6 of the California Constitution as sufficient justification for the publication rules. (OPPOSITION, page 3, lines 7-10). In fact, although the California Constitution authorizes the Judicial Council to "improve the administration of justice," (Cal. Const. Art. VI, § 6), it gives the Judicial Council no mandate to sacrifice justice on the altar of administrative efficiency. A case cited by Respondents, In re Williams, (1997) 69 Cal.App. 840, starkly illustrates the very risk of harm which the publication rules can create. The defendant in Williams was a twice-convicted drug offender, statutorily ineligible for parole until he had served five years. Defendant sought a writ of habeas corpus, claiming that the five year restriction on parole eligibility constituted cruel and unusual punishment. The Appeals Court had already decided a case, In re Carter (1975) (Cal.App), applying the precedent of In re Foss (1974) 10 Cal.3d 910, to find that the challenged statute, under identical circumstances, constituted cruel and unusual punishment. The Supreme Court, while denying a review of the Appellate Court's decision, ordered the opinion in Carter not to be published. Thus, "petitioner Carter was relieved of the burden of an unconstitutional sentence, but others, similarly situated, such as the instant petitioner, were not." Unable to rely on Carter as precedent, the Appeals Court had to "recreate" the decision of Carter, by again following the precedent of Foss. Thus, Williams not only demonstrates the judicial inefficiency of the current procedures, but more importantly, the risk of harm and injustice imposed by the publication rules.

Respondents' "argument" premises on the ground that there is no alleged case or controversy before this court, makes no sense in the face of Respondents' acknowledgment that "California state courts are not bound by the strict "case or controversy" requirement of Federal jurisprudence." (OPPOSITION, page 13, lines 14-19) In Environmental Protection Information Center v. Department of Forestry and Fire Protection (1996) 43 Cal.App.4th 1011, a case cited by the Respondents, the court held that "[w]hether this [position now asserted by Respondents herein] should be the law in California, it clearly is not...[the law]". [emphasis supplied] Id. at page 1020. Respondents' repeated use of dicta in dissenting opinions provides no authority for this court to rule otherwise.

Respondents argue that under Code of Civil Procedure § 526(b)(6), an injunction in this case will not lie because Respondents are clearly in possession of public offices and the Rules of Court challenged are lawful. (OPPOSITION, page 11, lines 5-8.) In Conover v. Hall (1974) 11 Cal.3d 842, the California Supreme Court examined CCP §526(b)(4), which states that an injunction will not lie in cases "[t]o prevent the execution of a public statute by officers of the law for the public benefit." The Court held that "[a] host of cases interpreting these sections have made it clear, however, that their provisions do not apply to an unconstitutional or invalid statute or ordinance and that courts have full authority to enjoin the execution of such enactments." Id. at page 850. (See Bueneman v. City of Santa Barbara (1937) 88 Cal.2d 405, 407, 65 P.2d 884; and McKay Jewelers, Inc. v. Bowron (1942) 19 Cal.2d 595, 599, 122 P.2d 543.)

Throughout the OPPOSITION, Respondents allege that Petitioner'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 Defendants/Respondents". (OPPOSITION, page 9, lines 20-21, page 13, lines 3-5.) Although this statement is inaccurate as Petitioner's papers have alleged serious harm, Respondents have cited no authority holding that an explicit finding of irreparable harm is required to sustain a preliminary injunction. In Conover, the California Supreme Court held that there is no requirement of an explicit finding of irreparable harm to sustain the issuance of a preliminary injunction. Id. at page 850. Moreover, if a matter is of general public interest and is likely to recur in the future, as it will in this case, a resolution of the issue is appropriate. Kagan v. Kearney (1978) 85 Cal.App.3d 1010, 1014, 149 Cal.Rptr. 867, wherein the court held that an action for injunctive relief is an appropriate method of challenging the constitutionality of a statute.

Respondents improperly cite Arcadia Unified School Dist. v. State Dept. of Education, (1992) 2 Cal.4th 251, in claiming a presumption of constitutionality for Rules of Court. The presumption of Arcadia, clearly refers to legislative acts only. [Id.]

Respondents then cite Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 884, for the principle that "[t]he Rules of Court challenged by plaintiff are on an equal plane with statutory enactments in the operation of the appellate courts." (OPPOSITION, page 10, lines 7-8.) This is a misstatement of the holding of Alicia T., which actually states that "[t]he Rules of Court promulgated by the Judicial Council have the force of positive law and must be complied with provided they do not conflict with any act of the Legislature." Id. at 884, [emphasis added], quoting Villa v. Superior Court (1981) 124 Cal.App.3d 1063, 1065, and In re Steve W. (1990) 217 Cal.App.3d 10, 27. Therefore, the Rules of Court are inferior to statutes, not on an equal plane, and do not enjoy the same presumption of constitutionality, as Respondents allege in an attempt to create a higher standard of review that is provided by law.

Respondents also assert that any time the State is enjoined from enforcing its Rules, it suffers a form of irreparable injury. (OPPOSITION, page 10, lines 11-12.) The enjoining of the enforcement unconstitutional Rules cannot to deemed to constitute harm to the State, and no harm has been articulated by the respondents. The Respondents would have this court view the rights which are of Constitutional dimensions as burdens which should not be lightly imposed on the State, rather as an mandated protections established to benefit the citizens of the State.

Defendants/Respondents state that "this Court should defer to higher judicial authority" and "should not attempt to substitute its own supervision of the publication/depublication policy for that of the Supreme Court." (OPPOSITION, page 10, lines 17-24.) Petitioner does not seek to have this court "supervise" any aspect of the Supreme Courts procedures. Moreover, by failing to publish all of the Courts of Appeal opinions, Respondents were and are acting in their administrative and non-decisional capacities, and not as superior tribunals, and, with the Judicial Council, are without or in excess of their respective jurisdiction. Therefore, this Court has authority to enjoin Respondents, in their administrative and non-decisional capacities, from following the unconstitutional publication rules. The idea that the Supreme Court or the Courts of Appeal are somehow immune from attacks on their unconstitutional acts, is inherently repugnant to the entire system of separation of powers and the Rule of Law. That a part of the judiciary as a named defendant can be subjected to the jurisdiction of the Superior Court, and have matters pertaining to its alleged unconstitutional acts adjudicated therein, is not a novel concept, see Mosk v. Superior Court (1979) 25 Cal. 3d 474, 499, in which the Rule making authority of the Judicial Council was subjected to a successful attack on its rule making function when it was contrary to the Constitution.

Respondents argue that ". . . 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." Quoting from Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, emphasis added. However, this doctrine is inapplicable in this case because superior courts have not previously adjudicated the validity of the publication rules.

Respondents incorrectly claim that "the publication rules have been uniformly upheld by California Appellate Courts (OPPOSITION, page 4, line 10 - page 7, line 9). While each of these cases makes some reference to the publication rules, the rules are merely peripheral to the holding. People v. Superior Court (Clark) (1994) 22 1541, merely considered the effect that an Appellate Court opinion, initially certified for publication, which held a certain criminal statute invalid, would have on the criminal liability of a defendant who had violated such statute. The underlying validity or constitutionality of the publication rules was neither put at issue nor discussed. In In re Williams (1977) 69 Cal.App. 840, the Appellate Court, though critical of the publication rules which foreclosed the use of Carter as precedent, was able to side-step the effect of publication rules by essentially replicating the Carter decision. Justice Jefferson's dissent in People v. Valenzuela (1978) 86 Cal.App.3d 427, is mere dicta, and discusses issues not even raised by the majority in its opinion which studiously avoided the issue.

Respondents' reference to Federal Court approval of the publication rules is similarly inapt. (OPPOSITION, page 7, line 10 - page 8, line 4). In State Farm Mutual Automobile Ins. Co. v. Davis (9th Cir. 1991) 937 F.2d 1415, the Ninth Circuit addressed only the narrow issue of whether an order to depublish an appellate court opinion may be used as evidence that the depublished opinion was incorrectly decided. In summary, Respondents have provided no evidence that either the California Appellate courts or the Federal Courts have ever addressed the validity of the publication rules. Respondents themselves, in their OPPOSITION, admit that "the Court of Appeal had declined [to substitute its judgment for that of the Supreme Court in regard to the publication/depublication policy] even where there were actual cases and controversies.

Respondents' statement that Conover v. Hall (1974) 11 Cal.3d 842, and its progeny "involved statutes found invalid in the context of specific persons seeking specific relief" skirts the issue. As earlier established, there is no "case or controversy" requirement. Additionally, Petitioner is acting as a "private attorney general" and no case or controversy need be found under California law.

Respondents urge that this Court allow the continuance of unconstitutional Rules because "[i]t is the Supreme Court that possesses 'inherent supervisory powers over the courts of this state'." (OPPOSITION, page 10, lines 18-19, quoting from People v. Coleman, 13 Cal.3d 867.) No court in the State of California, particularly one that possesses inherent supervisory powers over other courts, should ever be allowed to compel other courts to follow Rules that are unconstitutional.

Respondents argue that publication of all opinions would be impractical and unfair to some litigants because "the costs of both publishing and perusing the vastly greater volume of material" would outweigh the benefits gained by publication. Respondents have not alleged or shown that there is any expense to the State of California for the actual publication of decisions which decisions are published by private publishing houses. The OPPOSITION asks us to imagine a law library that can only be used by means of a sophisticated computer. One wonders when Respondents may have last visited a public library, not to mention both County and law school law libraries which all have computerized systems for the location of materials, and the librarians to aid those who require assistance in utilizing the systems. Contrary to the view espoused by the Respondents that such published material would be available to the very few who are possessed of the financial resources to access it, modern technology has placed information well within the reach of the general public, all at little or no expense to the general public. Administrative inconvenience is not a recognized justification for the continuance of a practice which is inherent unconstitutional. Rinaldi v. Yeager (1966) 384 U.S.305, 309, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577. The most telling criticism of the Rules is that it permits the Supreme Court to shield itself from the view and scruiny of the general public. No where can this be more aptly demonstrated in respect to In Re John D. (1981) 178 Cal. Rptr. 278. The Court of Appeal severely took to task "The questionable practice of the Supreme Court in ordering Court of Appeal opinons unpublished without explanation [has been criticized.]" at 280. The Supreme Court ordered that John D. not be published, and thereby avoided public scrutiny of an opinion criticizing the Supreme Court. It is the beginning of tyranny, when an institution of government can censor its own critics.

"The assumption that respect for the judiciary can be won by shielding judges from public criticism wrongly appraises the character of American public opinion.... And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect. " Bridges v. California, 314 U.S. 252, 270-271 (1942)

"The validity and moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness." Joint Anti-Fascist Refugee Com. v. McGrath, 341 U.S. 123, 171 (1950) (Frankfurter, J. concurring)

It is respectfully requested that this court issue a preliminary injunction restraining the enforcement of the offending Rules of Court.

Dated: June 17, 1998
Respectfully submitted,

LAW OFFICES OF KAPLAN & SAM
BENJAMIN ELLIOT KAPLAN
Attorney for Plaintiff/Petitioner
MICHAEL SCHMIER

^[1]  Respondent cites Judge Grodin's article in 87 Mich L. Rev. 940. Justice Grodin has observed in a recent communication to other litigation counsel that the likelihood of the Supreme Court accepting a petition for review in an unpublished opinion, even if the decision was erroneous, was nil.