Friday, June 19, 1998


1475 Powell. Street, Suite 201
Emeryville., California 94608


601 Van Ness Avenue
San Francisco, California 94102

50 Fremont Street, #300
San Francisco, California 94105

6585 Commerce Boulevard, Suite E 210
Rohnert Park, California 94928

Reported by:

Leland Batara, CSR No. 3759

FRIDAY, JUNE 19, 1998


THE COURT: Line 8, Schmier versus Supreme Court.

Let me ask, I don't know who is appearing, but in deference to the reporter, I ask that counsel line up, and then don't move after we have the appearances.

Let me start over here. Go ahead, sir.

MR. SCHMIER: Ken Schmier for plaintiff.

MR. KAPLAN: Benjamin Kaplan of Kaplan & Sam for plaintiff and petitioner, Michael Schmier.

MR. BLAKE: Good morning, your Honor. Tom Blake, Deputy Attorney General, for the Supreme Court, Court of Appeal and Judicial Council. With me is Star Babcock of petitioner counsel.

MR. BABCOCK: I am just appearing with him.

THE COURT: No. There is someone behind you, and I am just trying to find out whether you are in or out.

MS. ELLIS: I am Catherine Ellis, and I am making a special appearance for Patricia Carpentier Morgan, who is a person similarly situated in this case.

MR. SCHMIER: Your Honor, I must ask for the Court's indulgence, in that I have recently reactivated my license after a 20-year hiatus. I have only argued one other case before a Court; and if I offend the Court in any way, I would appreciate being corrected.

This is a unique case. All of us here have

taken an oath to support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic. We have taken an oath that we will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California, and that we take the obligation freely, without any mental reservation or purpose of evasion, and that we will well and faithfully discharge the duties upon which we have entered. That applies to all of us.

This is a unique situation, because the Constitution and the rights of the people are clearly presented here. The question is: What does it mean to defend the Constitution?

I don't think it means that we need to line up and surround the document at the National Archives, or in Sacramento. Rather, I believe it means that we must build a fence around the Constitution. That means that we, in a similar way to anything else we love and cherish, we create a space around it, and we don't allow those who would, through rationalization or other devices, get close enough to it to injure the ideals that we hold sacred.

In this regard, I have to admit that I have some guilt. In the last case that I argued before the courts in 1977, 1 brought to the Court's attention the issue of whether or not mandatory retirement at age 67 was an unconstitutional depravation of equal protection of the law.

The Appellate Court, in that case, issued an opinion marked "Not to be published in the Official Reports." That opinion did not respond to any of the significant and diligently presented arguments made on behalf of the plaintiffs in that case.

I knew then, when I first learned about the system of nonpublication, no citation rules, that they created a scheme that allowed our justices to avoid the responsibility of deciding issues for the society, that they allowed our justices to avoid accountability, and that they created an abscess in which all kinds of conduct inappropriate for a free society to take place.

Coming to that point, I had been taught in history classes, in civics classes, in religious classes, through documentaries on TV, what happens when people don't immediately and firmly stand up to protect their rights, and particularly those who are intelligent enough and articulate enough and have the power to move to protect rights.

We were taught that the first thing that Hitler did to establish his power, long before people recognized him as entity of power, was to change the legal system so that when he had the power, he could use it in an arbitrary and totalitarian way.

THE COURT: I suggest this, sir. We are talking about a specific matter here. I would prefer we talk about it rather than generalities.

MR. SCHMIER: Okay. It is inconceivable to me

that the State of California can have a system of appellate law in which a criminal defendant may sit before a, perhaps, angry or irrational judge without any possibility -- any realistic possibility of ever having the law that is applied in his case surface as the law of the land. It seems to me that that is impossible in a country that cherishes equal protection of the law.

So the question that we are called upon to discuss here is stare decisis, and whether or not stare decisis is to continue to be, or to be restored as the law of this land.

The doctrine of stare decisis goes back 3,850 years, the best that I could find. The legend is, and I think it's important to understanding how important this is to our society, that Eleazar, the servant of Abraham, went in to Sadam, and he there stopped a thief from robbing a fellow visitor. The thief threw a rock at Eleazar's head, who drew blood. And the thief then presented Eleazar with a bill for the medical service of bloodletting. When Eleazar refused to pay it, he took Eleazar in to court. And the Court awarded judgment against Eleazar, saying: Eleazar, you must pay the bill of the thief.

Eleazar, a common man, picked up a rock, threw it in the forehead of the judge, drawing blood, and said: If your Honor's ruling is correct, take what you owe me and pay your judgment to the thief.

He there established the basic principle that

is violated by Rules 976 and Rule 977; that is, that a judge should never make a rule knowing that he does not

intend to apply that rule in the future.

It is true that stare decisis is not a rigid doctrine. But the fundamental natural law understanding is that when the justice system makes a decision as to what the law is, it must presently intend that that law is to be the law of the land for everyone, and that it is to be known by everyone. It is that which is the fundamental natural law violation of Rules 976 and 977.

The Founders of our nation and the Framers of our Constitution were well versed in natural law. The documents they wrote, which are respected for their intrinsic sense of justice and their warranty of justice by people throughout the world, reflect the great care to protect those natural rights. That is why it is not surprising to realize that Rules 977, 976, 978 and 979, that are so disruptive of these rights, bump into constitutional principles like a car going the wrong way in a bumper car pavilion.

Before I get into the clear violation of constitutional principles, I feel that in decent respect for the people who staff our courts, and who endeavor to produce the justice system upon which our system of government and our whole society cannot possibly exist, that I should list for the court the evils of the nonpublication, no citation rule.

There are far too many for me to take up the

Court's time to do that. They are well documented in numerous scholarly law journals. And, in fact, I think there must be 30 or 40 that criticize the practice, and I am not aware of any that support it, but I will turn only to the report of the Chief Justice's California Advisory Committee for an Effective Publication Rule.

In that document, which was provided to the Court, the committee summarizes by saying: "The committee's initial conclusion is that a return to full publication and official" -

THE COURT: Excuse me, sir. If you are going to read something, the reporter still has to take it down, which means that you don't go full speed ahead.

MR. SCHMIER: Yes, sir.

THE COURT: And, again, I would have to urge that if material is in the papers, and I have gone over it, I don't need to hear it repeated. But go ahead.

MR. SCHMIER: Thank you.

Publication of appellate work opinion serves many purposes. It enables courts, lawyers and litigants to know the law so that they may make uniformed and predictable decisions. It also informs the public of the law, giving fair notice of rights and duties. Publication also exposes to public and scholarly scrutiny the philosophical views and analytical ability of the judges. In short, legal doctrine can best be understood, interpreted, acted upon, criticized, and changed through publication of opinion.

From this perspective, limiting publication of opinions is subject to numerous theoretical and practical criticisms. The former include the contentions that selective publication contributes to popular distrust of the courts, creates inequality of access to case law by making pertinent and unpublished opinions available largely only to institutional and specialized lawyers; limits the Supreme Court's ability to correct inconsistent appellate decisions where there is no petition for hearing; deprives trial judges, lawyers, litigants, and members of society of guidance, and decreases trial court compliance with the law, thus contributing to increased appellate litigation.

California's selective publication scheme is also subject to criticism on the practical grounds that the criteria for publication are applied unevenly. Cases that qualify for publication remain unpublished. The citation bend does not neutralize the advantages of privileged access, since it does not prevent the use of the language and the reasoning of unpublished opinions.

The procedure for requesting publication works unequally, since only the parties and institutional litigant's have practical access to unpublished opinions, and they frequently do not have an interest in seeking publication. The Supreme Court frequently decertifies published opinions which qualify under the standards.

And then the committee turns to the single and only reason upon which the scheme of no publication, no

citation may be justified. And I point out before reading it, that this is dated June 1, 1979, a time before technology had advanced to its present ability to manage massive amounts of communications.

Despite these problems, the volume of appellate, decisions precludes a return to full publication of all opinions in the current format of the Official Reports.

I note, just as an aside, that if the Official Reports of the appellate courts of California include only 7 percent of the work of the appellate courts, what does one call the complete body of appellate reports?

The Unofficial Reports of the State of California? Does one refer to the 93 percent of the opinions that are not published as "the Seconds"'.,' As the casual opinions of the appellate courts, those opinions of the appellate court that we really don't think count? The opinions that allow the justices to deviate from the law without it showing up in the seamless web of the law? What would be the proper title to that book? I don't understand that.

We now have the benefit of the Internet, DVD-ROM storage disks, which will store not just the entire case log of the State of California, but are now capable of storing the entire case law of our entire nation on one plastic disk that can fit in a suit jacket, so that any inconvenience caused by the difficulty of publishing or storing is now obviated by technology. There is no purpose for these rules.

There are two other equals that I want to note that weren't there.

one is, call to attention the case cited by the Attorney General, In Re: Williams. There, Williams petitioned the Court for relief from a five-year sentence as cruel and unusual punishment. The Court there said that rule was established in In Re: Carter, but you can't cite it because it has been depublished. Never been overruled. Never been withdrawn from the body of precedential law, that the Court was required to respect under Auto Equity Sales. Just simply made to evaporate by a higher court without stating what the law is.

In short, rather than illuminating the community with justice, the higher court left us in the

position of telling us what the law is not, without telling us what the law is, except that in so doing, it maintains that it expresses no opinion on the law, so that a trial judge is left in the unique position of being bound to respect precedent, without being allowed to follow precedent, or even to be able to hear what the precedent is. This concept is beyond the understanding of mortal men.

The second evil that I want to add to what is in the book is that the depublication rules have been used by the Supreme Court-and by the appellate courts in order to silence criticism of their own rules by lower courts.

That happened when the Appellate Court removed the case of People versus Venezuela from the Los Angeles

Appellate Department of the Superior Court in order that it could vacate an opinion of that court that held Rule 977 unconstitutional. It disposed of that case on other grounds, thereby silencing that dissent against the established rule of the land.

In Williamson, the court did the same thing; the Supreme Court did the same thing.

These kinds of acts are inconsistent with the promise of justice in our community.

I want to focus for a moment on the purpose of the equal protection clause.

What is it that's so special about the equal protection clause? It is that it is a device that amplifies whatever it is that the government does to -- in respect to any one individual, to affect a broad enough class that what has -- that an injustice to one becomes a significant issue to the entire community.

So, for instance, if an appellate court makes a rule inconsistent with the contract law of California, that may not concern anyone in particular. After all, it only really affects the losing litigant. But when it is published, when that rule of law, inconsistent with the established contract law of California, is published, then it has the possibility of affecting the rights of people throughout California, and that -- that force, that possibility of propagation of bad law insensitizes law professors, law students, politicians, judges, journalists, clergy, academics, industry representatives

to lobby, to bring new test cases to stamp out the bad law.

My father, bless his memory, was a prosecuting attorney in Oakland County Mission. There was a time when an interesting case, which points out exactly the problem here, came to him. A surgery patient died because the anesthetic with which he was treated had been mixed with ether rather than distilled water. And when the patient was injected with it, the patient died.

The hospital pathologist, to protect the reputation of the hospital from criticism and the doctor, euphemistically termed the cause of death "therapeutic misadventure."

There is no great harm in doing that, your Honor. The problem is the tragedy came the next day when three more people died who would not have died had that mistake been public.

So it is with our legal system. We, the people of California, don't expect our judges to be perfect. They are, after all, human beings. The entire institution is a human institution. But we hope that by requiring the actions of the court to be public, we involve the entire community in keeping the judges and justice on track, and moving toward righteousness.

I want to move now to what I think are the legal reasons why Rules 976, 977, 978, 979 must be enjoined. They are constitutional arguments.

THE COURT: Again, keep in mind, if you are

supplementing the papers, I don't want it all read -

MR. SCHMIER: I do not view the constitutional

-- I feel that the constitutional arguments are clearly controlling, your Honor. I don't use them as the most significant. So I am going to touch on them very briefly.

They are only this. They are clearly a violation of free speech. It is inconceivable that any person subject to the jurisdiction of the Court could be barred by a law of this land from bringing to the Court's attention that which the Court did in a similar case. It is simply inconceivable.

But that is what Rule 977 says. It says that we may not cite to a Court a decision marked "not to be published in the Official Report," despite the fact that that decision has been decided by three justices familiar with the facts of the situation,, whose integrity and intelligence has been reviewed by the Governor and the Legislature, and who have committed that study of the case on paper.

It's different because we are allowed to cite the note of a first year law student to a law journal article as authority to the Court, but we cannot use the considered opinion of our appellate judges. In 93 percent of the cases, your Honor, we are prohibited from bringing that jurisprudential wealth of knowledge to the attention of our courts. It is inconceivable.

Number two, it's a violation of separation

of powers. It is my understanding that the Attorney General -when the Attorney General recommends to the Supreme Court that criminal decisions be published, that they are routinely published. That allows the Attorney General's office to be a kind of a second legislature. And if not the Attorney General's office, the Supreme Court itself, when it decides which of the case law it will allow to be the law of the land, it acts as a legislature, and not as a court deciding cases.

There is a clear restriction of the right to petition government for redress of grievances. How can it possibly be that citizens of the State of California are prevented from coming before a court and demonstrating that they are subject to the unequal protection of the law by -when they are prevented by not being allowed to cite numerous cases that might hold otherwise the law being actually used by the Court.

But the clearest statement of unconstitutionality of these provisions comes from the scheme of selective prospectivity that it creates.

When the Court knows that the rules it makes in any decision cannot be used prospectively, because they can't be cited and they cannot be relied on in any court in the future, then the decision, which in our state, under the current laws, rests with the appellate judge writing the decision, or with the supreme court, gets to decide whether or not its decision, and the rules contained therein, will have prospectivity or not by

deciding whether or not to mark that decision "Not to be published in the Official Reports."

The United States Supreme Court, in Griffith versus Kentucky, held that selective prospectivity is unconstitutional in the criminal context.

The United States Supreme Court, in James Beam Distilling Company versus Georgia, held unequivocally that selective prospectivity is unconstitutional in the civil context.

Your Honor, that pretty much covers the waterfront. Unless there is some other form of judicial actions in California that I don't know of, this scheme of selective prospectivity has been ruled by the United States Supreme Court unconstitutional in both civil and criminal, and therefore all California law. It simply may not be.

But there's one principle of law that I think is far more important than the constitutional principles as a reason for striking down these rules.

We Americans are a forward-thinking people. We dream of a day and age when our people and our world can live in perfect harmony. That is the forward promise of everything we do, is the forward promise of our pledge of allegiance, with liberty and justice for all.

How is it that we can have liberty and justice for all? Are they not mutually exclusive? They are not mutually exclusive. The reason that we contend that we will have liberty and justice for all is that we have a

system of government that teaches our people the magnificence of law, the magnificence that when all people learn a just law and abide by a just law, then no person is tempted to do an injustice to others through the exercise of their liberty.

How do we get there? We have to teach people.

In this regard, it's important to know as people have already done in this courtroom, the magnificence of the ideas espoused by King Soloman. When King Soloman built his great temple, his ministers advised him that the windows were being built wrong be cause they restricted -- they were built in reverse. They restricted light from entering the temple from the outside. And he said: It's not built wrong. The purpose of this temple is that the light from its court should illuminate the community, because we know that by teaching people respect for law, we bring the possibility of the Promised Land.

Now, it is easy for all of us to skeptically say there will be no time of the Promised Land.

Well, I bring to the Court's attention what it was that Theodore Harrelson said when he alone proposed the dream of a state of Israel a half century ago when he said: If you will it, it is not a dream.

That's been true throughout all of human activities. we will cure for diseases, and we found those cures for those diseases. We willed the building of magnificent bridges, and we built those bridges. We willed an independent nation under law, under rule of the

people, and we got that. We willed going to the moon, and we achieved that. And we will will perfection, and we will eventually get a time of perfection.

Your Honor, when Lincoln delivered the Gettysburg Address, he lamented our inability to properly consecrate the ground in honor of the war dead. They, after all, had made a sacrifice far more -- far greater than any of us who have been called upon to do.

The question is: How do we consecrate the

memory of our war dead, of those people who sacrificed their lives or their limbs, those people who sacrificed

their sons or their daughters or their spouses, how do we -- how do we consecrate that? How do we properly

-memorialize it?

By building a structure? No. We properly consecrate their sacrifice when we stand up to make certain that the values of this government, this system of government that we love and we respect, do not vanish from this earth.

We have been told what's required to produce a time of perfection in society. It's not beyond the doing of any of us. We must hate evil and love good. We must, as was said by the Prophet Amus, establish justice in our courts.

THE COURT: Let's get down to the basics of this case, counsel.

MR. SCHMIER: One more paragraph, your Honor.

The words echoed by Dr. Martin Luther King,

whose blessed memory serves as a great guiding light of that which other centered men can accomplish: Let justice well up as waters and righteousness as a mighty stream.

So, your Honor, there is no better respository for a welling up of justice than in the Official Reports. And there is no better way to establish righteousness as a mighty stream than to release the tourniquet on the publication of appellate opinions, and allow them to come forward and illuminate our community.

I ask the Court to enjoin Rules 976, 977, 978, 979. 1 ask the Court to enjoin the Superior and Appellate Courts from enforcing those rules.

Thank you.

THE COURT: Thank you, counsel.

Actually, in deference to the reporter, I am going to take 10 minutes. We will come on back and we can proceed.


THE COURT: Counsel.

MR. BLAKE: Good morning, your Honor. Tom Blake. I will try not to repeat what is in our papers. I would like to bring a few matters to the Court's attention.

In counsel's reply, at page 1, on about line 24, 1 believe, they allude to -- they make an allegation that there are no standards provided for the publication of opinions.

That is simply incorrect. Rule 976 provides, in essence, that the Court of Appeal panel that decides the matter will make a determination on listed criteria in the rule. And, of course, as the case we cite, People versus Cork, sets out fairly clearly, page 4, the Supreme Court ultimately decides whether that is correct or not.

Also, at page 6 of counsel's reply, they allege that the decision to depublish or publish is an administrative and nondecisional capacity of the Supreme Court.

Again, simply incorrect. Nothing is more inherently judicial than determining what is precedent, and what is the decisional law of the state.

Also counsel, in his argument, leaves the impression that there is a First Amendment violation on the grounds that criticism of the courts is silent.

And that is simply, again, not true. There is nothing in the rule that makes the decision of the court secret, or censors any person from alluding to it in the press, in public, or in the political process. It simply makes the rule not citable as far as a decisional law of the state.

I would submit that the Supreme Court has considered the report that counsel's alluded to. Concerning the practicalities of the matter, the Supreme Court has made a decision in the matter, has set down a system for communication of cases in deciding what is precedent.

The Court of Appeal has decided in the case of People versus Clark, which we cite properly in our papers, that that is the law of the state, and therefore it is simply inappropriate to accept an invitation to relegislate that matter.

Thank you.

THE COURT: Thank you, counsel.

Did you wish to address the Court?

MR. BABCOCK: I do not.

MR. KAPLAN: May I have a short reply, your Honor? Very short.

THE COURT: Of course.

MR. KAPLAN: I am just going to address the points raised by Counsel Blake in his argument.

Firstly, with respect to the standards of publication. while I think counsel is right, in terms of there do exist standards, I think it's been clearly established by the moving papers that those standards vary, that they are not uniformly applied, and that it is well known throughout the legal community that there are severe problems as to the application of those standards in applying to rules of publication.

So the lack of uniformity, the lack of consistent application are basically the thrust of the point that we wish to make in our reply paper in that regard.

Then, counsel stated that rather than being a nondecisional authority, in terms of depublication, and it

not being an administrative decision, I think counsel is missing the point.

As we pointed out, in citing Bernard Witkin, the decision by the Supreme Court to decertify an opinion is, in essence, a substantive decision. And by doing that, the Court avoids actually addressing the issues and the merits of the case, and could ignore cases that are incorrectly decided by simply having them depublished.

And as we pointed out in the third point, People versus Clark is not authority for the position offered by the Attorney General. No court has ruled on - - other than the appellate department of the Superior Court in a case which was removed by People versus Valenzuela, no court, to my knowledge, in the State of California, has ever ruled on the issue of whether the rules of court, which are being challenged by this petition and complaint, were ever constitutional.

And therefore, we would ask, your Honor, that you confront four-square the issue, which is that selective prospectivity is a violation of the equal protection clause of the Constitution of the United States, and of the Constitution of the State of California.

And thank you very much, your Honor.

And I will simply note, for the record, that although no opposition was filed to our notice of motion for writ, that I indicated to the Attorney General's office that we would consider his opposition to the

injunction to be the opposition to the writ, because we wanted all the issues to be met, and we felt that the issues were identical in that regard, your Honor.

THE COURT: Thank you.

MR. SCHMIER: Your Honor, I have four very brief responses.

First, I want to make certain that the court understands that Rule 976 creates no standards whatsoever to require any decision to be published, no matter how important the law it creates, or whether or not the law differs from the existing law of the State of California. It only says that decisions of the Appellate Court are not to be published unless they have certain standards. It does not require any publication, under any circumstance.

Number two, it is a part of our argument of the violation of separation of powers, that the Court may change the law simply by decertifying a case for publication. That is a power reserved to the Legislature. The Legislature, for instance, use that power to vacate Ellis versus the City of Berkeley.

And to allow the Court to determine law simply by vacating opinions creates a tremendous opportunity for tyranny. Consider the position of a defendant accused of a crime, who would be exonerated by a case, and that the Court could then depublish the case before the matter goes to final judgment, so that he was deprived of a defense? That creates a circumstance of overbreadth, and itself creates a situation of unconstitutionality.

The Attorney General suggests that these opinions are public.

Well, I went down to our Appellate Court the other day. They do take these opinions. They place them in an in-basket in the corner of the clerk's office. They will not copy them for you. They provide no electrical outlet for your own copying, and they will not allow those opinions to be removed from the office.

In my view, your Honor, that effectively keeps them from the public in a manner that was used by Coliguala. What Coliguala did, they accused him of convicting people of crimes, of violating laws that weren't published. So he would write the law in a place where it was impossible to copy.

This cannot be the rule in America.

And what's more, even if they were made public, even if they were posted on the web, that the moniker "Not' to be published in the Official Reports" appears on that decision, says to the Supreme Court, this is not to affect anybody else, and therefore there is no reason whatsoever for the Supreme Court to review a case that would otherwise be error.

It completely destroys the purpose of equal protection clause of the Constitution, which purpose was to bring to the Supreme Court's attention a violation of the rights of one small individual. It is for that reason that these rules must be enjoined.

Finally, the question is put before -- or the

suggestion is put by the Attorney General that we should not relegislate, that these are not the actions of our Legislature. These policies have never been reviewed by the people. They have never been reviewed by the Legislature. They have never been signed off by the Governor.

As a matter of fact, not all of-the rules have even been approved by the Judicial Council. They simply do not enjoy or deserve the presumption of constitutional validity. Their enforcement must be enjoined.

THE COURT: Thank you, counsel.


MR. BLAKE: Submitted.

MR. BABCOCK: Submitted.

MR. KAPLAN: Submitted, your Honor.

THE COURT: Counsel, I have gone over all of the paperwork. The petition will be denied.

I'd ask you to prepare a proposed order.

MR. BLAKE: I will, your Honor.

MR. KAPLAN: Thank you, your Honor.

THE COURT: Thank you all.

(The proceedings were concluded.)







1, Leland Batara, Pro Tem Reporter of the Superior Court of the City and County of San Francisco, State of California., do hereby certify:

That the foregoing is a full, true and correct statement of the testimony and proceedings had in the above-entitled matter and that the same is a full, true and correct transcript of the stenotype notes taken by me

in said matter.

DATED: at San Francisco,



Leland Batara, CSR No. 3759