The law's dirty little secret

Scott Winokur
San Francisco Examiner
Dec. 29, 1998

YOU AND I are neighbors, but the county line divides our properties. You live in Hang 'Em High. I live in Let 'Em Walk. Otherwise, we're Tweedledum and Tweedledee.

In fact, we're so similar, we commit identical crimes on the same day. You're no criminal, you say? OK, make that conduct injurious to others - "tortious" conduct resulting in liability claims.

Either way, we're both nailed - busted by the cops or hit with personal-injury lawsuits. Now fast forward. Six months later, I'm a happy guy. No jail for me, nor any adverse court judgment. But you're doing a year in county lockup; moreover, you're bankrupt.

If you think it would be impossible for such disparate legal outcomes to occur in America, think again. Legal experts say most judges nationwide are effectively ignoring constitutional equal-protection guarantees because of a technicality permitting them to disregard rulings in other cases.

We did the same thing, but you came to grief and I skipped out. Shouldn't there have been one precedent binding on judges in both counties and resulting in the same outcomes? Maybe so, but the judges in our cases were under no obligation to search exhaustively for it.

Since the 1960s, when a national uproar over mounting paperwork sparked a rollback in the production of official documents, appellate courts have been designating more and more decisions for "nonpublication."

In California, the operative law is Rule of the Court 977, which prohibits the citation of unpublished opinions by parties in court. I'm no lawyer, but this strikes me as the equivalent of saying no one could cite The Ten Commandments if Moses and the Big Guy hadn't published them in stone.

State Supreme Court Chief Justice Ronald George calls the no-publish, no-cite rule a "necessary evil to chill the development of the law," meaning it has to be put up with or we'll all drown in legalese.

The consequences, however, are profound. Last year, 93 percent of the opinions handed down by California appellate justices were unpublished. That meant most of the highest-level thought on legal matters in this state could have no bearing on later disputes of the same type in lower courts.

People have problems with this, as they should. Indeed, Emeryville lawyer Michael Schmier ran for attorney general on the no-publish, no-cite issue. He's also party to a lawsuit challenging the rule.

"If a court decides to deviate from past law, the function of publication is to tell the world from now on the rule is different. That's called precedent," Schmier said.

"But if the court doesn't publish the deviation, then it's out of control, because it neither followed the past rule nor created a new rule to follow. In one court, the decision says white is white, but in the next county, with the same facts, the decision is white is black. It's bizarre. This renders the law a charade. There's no accountability."

Schmier said Justice George and judges nationwide have been captivated by the "mantra" of efficiency. "They want to turn out 2,000 cars a day," he said.

I joked that it was likely he'd have to take his case to the World Court, because no U.S. court would go against the no-publish, no-cite rule. Schmier didn't laugh. That was a possibility, he said.

Is Schmier exaggerating? Not likely. It's just as bad as he contends, according to Los Angeles lawyer Gideon Kanner, past president of the California Academy of Appellate Lawyers.

"These guys are being inundated by a river of paper," Kanner said. "Their solution is saying we're not going to look at it."

Computers could easily solve the problem, Kanner said, but judges fear them: "If they put it all on-line, they'll be looking at the accumulation of 30 years of inconsistencies in the law. It's an intellectual Augean stables."

Said Stephen Barnett of UC-Berkeley's Boalt Hall: "Tell the average person there are cases the courts have decided but the law says lawyers can't tell other courts about, and the average person would think that's another reason to kill all the lawyers."

Barnett disagreed, however, on the level of crisis: "I haven't seen any flagrantly unequal decisions. But it's certainly a potential."

Maybe it will take a legal bomb thrower like Schmier to shed light on the situation. Right now, Rule 977 is the courts' dirty little secret.

2000 San Francisco Examiner Page A 17