the Case for Case Citations…Without Much Luck
16, 2009 12:24 PM
Emeryville attorney who has long been on a crusade to change the rules governing
publication of opinions in California courts didn’t get very far in presenting
his case to a San Francisco federal judge Thursday.
In 1998, Kenneth J. Schmier filed the first of several lawsuits challenging
state rules that forbid attorneys from citing unpublished opinions. So far,
however, at least three of them has been tossed, most for lack of standing. In
his most recent federal case, Schmier, represented by Los Angeles attorney Aaron
D. Aftergood, claimed that his free speech was violated because he could not
cite opinions that would help him win a traffic case he is handling for a
In that case, Schmier’s client was caught running a red light at an
Orange County intersection where a new automated camera detection system had
been installed. Although the state legislature requires cities to issue warnings
instead of citations within the first 30-days of a camera’s installation,
Schmier’s client got a ticket. Three California Court of Appeal decisions have
said the warning requirement is a complete defense to the ticket, but none of
them are published, so Schmier can’t use them.
Schmier sued the justices of the California Supreme Court last month seeking an
injunction that would allow him to cite unpublished opinions, but at a brief
hearing Thursday morning, U.S. District Judge William Alsup ruled from the bench
that Schmier didn’t have a case.
“Maybe it would be a better rule to allow publication [of all cases] or to
cite depublished opinions, but that’s not the test,” Alsup told Aftergood.
“The test is whether the Constitution prohibits the state of California from
adopting this rule.” Alsup said the rule was constitutional. He also said he
was troubled by what looked like “forum shopping” on the part of Schmier,
who was not present in court Thursday. California Deputy Attorney General Tom
Blake had raised the issue in a brief filed in the case.
“[Schmier] has been unsuccessfully suing about these California Rules of Court
for more than a decade," Blake wrote. "The people of the state should
not be required to expend scarce public resources to defend the state’s chosen
method of shaping its decisional law value over and over.” Alsup said he would
look into whether Schmier should be required to get permission to file anything
further on the rules.