APRIL 13, 2000  

Daily Journal

"Schmier Campaign"
By Stephen R. Barnett
        If ever a couple of legal crackpots - disgruntled litigants - were tilting at windmills only they could see, those brother lawyers from Emeryville, Kenneth and Michael Schmier, might be the ones. Since they lost a real estate case in a 1997 unpublished opinion of the Court of Appeal, the Schmiers have been crusading against unpublished opinions, their efforts so dogged as to verge on the comical.
        Michael ran for state attorney general in 1998 on the single issue of unpublished opinions, but he was late in submitting his statement for the voter handbook so no one knew what his issue was. Undeterred, Michael ran last month against Dianne Feinstein for the Democratic nomination for U.S. Senate, collecting 5 percent of the vote.
        At a 1998 "Meet Your Judges Night" in Marin County, Ken submitted written questions about nonpublication, none of which went to the judges. When the moderator declared the meeting over, Ken stood and asked his question - or tried to, as he was dragged off to jail by sheriff's deputies.
        Handed this beautiful lawsuit for false arrest and denial of free speech, Ken wouldn't bring it: "I don't want my neighbors' money," he said. He settled for a half-hour hearing on nonpublication before the Marin Board of Supervisors.
        Michael and Ken have sued the California Supreme Court, challenging nonpublication. They lost before Judge David A. Garcia in San Francisco Superior Court. They lost again, Feb. 28 , in an opinion issued - and published - by the 1st District Court of Appeal in Schmier v. Supreme Court, 2000 D.A.R. 2137.
        And yet, crazy as their campaign may seem, the Schmiers are making progress. The recent Court of Appeal opinion stands out both for the major point it concedes and for the weakness of its defense of nonpublication. Meanwhile Assemblyman Lou Papan, D-Millbrae, has written AB2404, which would require that all appellate opinions be available to the public and be citable as legal precedents. A hearing will take place April 25 before the Assembly Judiciary Committee. What's more, the Schmiers are right.
        Nonpublication of appellate opinions began in the 1970s as a response to the enormous growth in judicial caseloads and the resulting demands on paper, shelf space, lawyers' and judges' time and money. Today, 93 percent of California Court of Appeal opinions are unpublished.
        The system rests both on Court Rule 976, stating that no court of appeal opinion "may be published in the Official Reports" unless it meets one of four stated criteria (or unless the Supreme Court orders it published), and on Court Rule 977, stating that an unpublished opinion "shall not be cited" by a court or party in any other case.
        When these rules first issued, nonpublication and noncitation were nearly synonymous. If a case didn't appear in the official reports, it pretty much wasn't available, so of course no one could cite it. Today, the term "unpublished" is largely a misnomer, with unpublished cases often freely available online and elsewhere.
        So the issue now isn't nonpublication under Rule 976; courts could make all their opinions available and still publish in the official reports only those they considered important. The issue is the citation ban of Rule 977. If attorneys think an unpublished opinion will help their client, should the law bar them from telling the court about it?
        At least six arguments would say no.
        The noncitation rule lends itself to unequal application of law. A court's unpublished decision need not apply to a subsequent case presenting the same facts. Indeed, the court in the second case can't even hear about the first decision.
        The public is likely to suspect that worse things are going on. Even if publicly available, court opinions not citable to other courts are in some sense secret and therefore suspect. They rob the judicial system of visibility, accountability, legitimacy and respect.
        The claim that California courts publish all their "important" opinions passes belief. Publication rates vary widely among courts of appeal - from 7 percent to 27 percent in civil cases - and many unpublished opinions prove important enough for state Supreme Court review.
        Unpublished opinions comprise what one judge has called "a vast underground body of law." That law is more accessible now than it used to be, thanks to computers, but it still gives an unfair advantage to institutional litigants who have the resources to collect and use the unpublished opinions, request publication or nonpublication in selected cases and otherwise shape the subterranean law to their own benefit.
        Most fundamentally, the noncitation rule flouts the Anglo-American principle that the law is what the courts have decided. Judicial power derives its legitimacy from deciding cases. When judges say they alone can determine the lawmaking effect of their decisions, they're claiming a power more legislative than judicial. Barring an attorney from telling the court about a prior court decision may deny due process.
        It also may infringe free speech. As Judge Richard S. Arnold of the 8th U.S. Circuit Court of Appeals has observed, "If we decided a case directly on point yesterday, lawyers may not even remind us of this fact. The bar is gagged."
        Against these arguments, the Schmier court produced mostly a parade of straw men. The court claimed that in the Schmiers' view, the court of appeal in criminal cases "would be required to publish all Wende opinions," which typically state only that the court's independent review has revealed no arguable issue. In fact, no such requirement would exist: Courts could still decide which opinions to publish under Rule 976, and the typical Wende opinion, stating no facts, would encumber no one's search for precedent.
        After a litany of other cases that don't deserve publication, the Schmier court conceded that all opinions are publicly available, anyway, so that nonpublication in the official reports "means nothing more than that they cannot be cited as precedent."
        Why shouldn't unpublished cases be citable? The best argument is that the additional research would overburden attorneys and judges, making it harder and costlier, in the words of Chief Justice Ronald George, "to separate the wheat from the chaff." One answer is that at least six, and apparently eight, of the 13 federal circuits - up from just two in 1994 - now allow citation of unpublished opinions.
        Some say it's "disfavored," some say the opinions may be cited not for "precedent" but only for "persuasive" value. However, six to eight circuits allow the citations, with notice and a copy of the opinion to the opposing party. The 9th Circuit, not one of the six, is thinking about joining them.
        The Schmier court argued further that nonpublication is necessary to support, of all things, the California Supreme Court's practice of depublishing court of appeal opinions it doesn't like. But the high court still could pursue that dubious (and diminishing) practice. Depublished opinions would be citable, but so would the depublication order to discredit them.
        The biggest news in Schmier is what the Schmiers won. They relied on James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), where the U.S. Supreme Court barred prospective overruling. The high court held that, when a court has applied a rule of law to the litigants in one case, it must apply that rule to all others not barred by res judicata or procedural requirements. No problem, the Schmier court said.
        California complies with this principle because the publication criteria of Rule 976(b) "establish comprehensive standards for determining publication of Court of Appeal cases, particularly specifying that an opinion announcing a new rule of law or modifying an existing rule be published."
        The pertinent portion of Rule 976(b) reads, "No opinion of a Court of Appeal ... may be published in the Official Reports unless the opinion ... 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."
        This language on its face does not require the publication of opinions establishing a new rule of law. It says only that opinions may not be published unless they meet one of the rule's criteria . The Schmier court, by its description of the rule as "specifying" that certain opinions "be" published, has converted a condition into a requirement. The court apparently requires (in a published opinion!) the publication of an opinion establishing a new rule of law or modifying an existing rule. Further, since the rule's relevant language is the same, this conclusion presumably stands as well for an opinion that applies an existing rule to a different set of facts, and the same for opinions invoking one of the other criteria of Rule 976(b).
        The court now apparently must grant requests for publication made to the court of appeal or the supreme court if one of the Rule 976(b) criteria is met. Under compulsion of James B. Beam, law has replaced discretion.
        The fact remains that, even if Schmier has changed the law regarding which opinions the court of appeal will publish, courts should not have the sole prerogative to determine which of their opinions may be cited. They should not be able to decree, as they now have, that more than 90 percent of California Court of Appeal decisions are not law. To lift this cloud from our judicial system, AB2404 deserves support, as do the Schmiers in their not-so-crazy campaign.
        Stephen R. Barnett is a professor of law at University of California School of Law, Boalt Hall.