SF man finally gets a chance to speak his mind

Marin Independent Journal December 4, 1999

By Jane Futcher IJ Reporter

The man who was arrested before he could speak at Meet Your Judges night last year will have 30 minutes to on Dec. 14 to tell Marin's Board of Supervisors what's on his mind.

Kenneth J. Schmier of San Francisco dropped his $10 million complaint against the county for false arrest and imprisonment on the night of Oct. 28, 1998, in return for a public hearing on a judicial practice Schmier vehemently opposes.

The practice is called selective publication, which allows California appellate courts to withhold judicial opinions from publication and for citation in future lawsuits. It has become so commonplace that more then 90 percent of appellate court opinions are not published, according to the Judicial Council of California.

"What I'm really hoping is that a number of legislators will come to the meeting and understand the profound implications of these policies on constitutional rights," Schmier said. "I'm hoping they will actually come and learn about the matter, that their interest will encourage the judiciary to simply withdraw the rules."

California Rules of Court 976-979 allow appellate court judges to withhold from publication any decisions they think do not establish new rules of law. Schmier argues that the practice, which deprives litigants of the use of past decisions as precedent or justification for future legal arguments, is unconstitutional.

Invitation to the Dec. 14 hearing will be sent out by the county early nest week to more than 70 Claifornia legislators, including U.S. Sens. Dianne Feinstein and Barbara Boxer. At the forum, members of the public may speak up to three minutes.

"I assume we will get the invitations out on Monday," County Counsel Patrick Faulkner said yesterday. "We were waiting for the mailing labels."

The hearing will be held at 11 a.m. in the Marin County Board of Supervisors' Chambers, Room 330, 3501Civic Center Drive in San Rafael.