22, 2007 | JUDGES AND JUDICIARY
Justice Derails Bill on Changing State's Citation Rules
Daily Journal Staff Writer
SACRAMENTO - Score another
point this week for Chief Justice Ronald M. George, who
has consistently knocked down every legislative effort to
allow lawyers to cite unpublished opinions in briefs filed
in California courts.
Assemblyman Mervyn Dymally,
D-Los Angeles, met with George Tuesday and decided not to
introduce a bill that a couple of Emeryville lawyers were
pushing to change California court rules on citation.
"He met with the chief
justice, and there's not going to be any legislation we're
going to introduce," said Warren Quann, Dymally's
legislative director. "That's not something we want
to get into. It's not our purview. Mr. Dymally is not a
Quann said the court has
taken the position that it should write a seminal opinion
for each area of law, such as auto accidents, and use it
as a guideline for similar cases instead of having to
write an opinion on every auto accident.
Stephen Barnett, emeritus
professor at Boalt Hall, predicted the issue would not go
away, no matter how much George wants it to.
"The chief justice
certainly is trying to keep it under the covers, but given
the fact that the Werdeger committee itself calls for a
new committee, it doesn't seem likely the issue will stay
buried," Barnett said.
In 2004, George appointed
Justice Kathryn Mickle Werdegar to head a committee to
study the criteria justices use to decide which opinions
to publish. The committee found that most lawyers favor
changing the rule on citation, and most appellate justices
The committee recommended
the court consider appointing a committee to evaluate the
feasibility of partial publication or de-publication, of
expanding the circumstances in which parties can draw
appellate court attention to unpublished opinions and
review other matters concerning publication of opinions
that the committee did not address.
Based on the committee's
findings, the court announced new guidelines beginning in
April that favor publication if it establishes a new rule
of law, applies an existing rule to significantly
different facts or advances a new interpretation of a law
or court rule.
"They made some
changes that I think are significant," George said.
"I think publications will go up a bit. There are
some marginal opinions I think should be published and
He said that, after his
meeting with Dymally, the assemblyman understood
publishing every opinion on every fender bender case
wouldn't make sense, because it would require lawyers to
read them all "to find the needle in the
"It would be pointless
to have 12 times as many published opinions," George
said. "Now, the California Courts of Appeal are
publishing 8 percent. If we went to 100 percent, every
lawyer, law clerk and judge would have 12 times as many
cases in sets of volumes or on line to sift through."
Ken and Michael Schmier,
brothers and lawyers who practice in Emeryville, have been
on a long campaign to change the rules on citing
unpublished opinions. They thought they had a good chance
this year to pressure George to change his mind on the
issue after the federal judiciary changed its citation
rules late last year.
But George's persuasive
powers prevailed, as they had in 2004 when he urged Sen.
Sheila Kuehl, D-Santa Monica, to drop a bill she carried
in favor of a study that came to fruition under Werdegar's
continues his many years of lobbying members of the
Assembly and Senate Judiciary committees, not only
supporting this rule but also telling legislators that the
constitutional doctrine of 'separation of powers' requires
legislators to stay out of judicial branch affairs such as
rule making," Michael Schmier said.
In support of George's
efforts, Justice Vaino Spencer of the 2nd District Court
of Appeal in Los Angeles, wrote to Dymally in late May
telling him of Judicial Council hearings in 1980, which
she chaired on the subject of unpublished opinions. The
committee recommended retaining the policy existing at
"After more than 26
years of experience as an appellate justice, I continue to
strongly support the current system, which limits citation
of opinions," she wrote.
Barnett said it was time
for a new study.
"I thought that letter
was rather absurd in its reliance on a decision reached 25
years ago, given the federal courts' reversal and the
whole technological revolution," he said.
Spender said she was not
relying strictly on the study she was involved in. She
said that at least three other studies, and recent ones,
came to the same conclusions her committee made.
Proponents of citation of
unpublished opinions overlook the fact that each opinion,
even unpublished ones, makes references to published
cases, Spencer said.
"Every opinion that is
filed contains and is based upon published opinions, so
why don't those people merely cite those cases?" she
asked. "And the chief justice has really looked into
George cited two key
differences between California's courts and federal
"We have a much larger
system," he said. "We're twice the size of the
Article III judiciary. We have 1,650 judges and 450
commissioners. The entire federal judiciary is 800 to 900
judges. We also have a requirement in our constitution
that all opinions be in writing with reasons stated. So we
can't have a short per curium one or two paragraphs as
they do in federal court."
The chief justice said he
has vastly improved the Supreme Court's de-publication
rate, which hovered above the rate of cases it accepted
for review in 1991 and now is 20 a year.
"It doesn't make sense
for us to reinvent the wheel if the law is
well-established and someone writes an aberrant
opinion," George said.
The Schmiers said someone
who is the target of a bad appellate opinion has no
recourse. The Supreme Court selects the cases it wishes to
review, but many are rejected.
Ken and Michael Schmier
said they intend to bring a federal civil rights suit over
the citation issue, contending they have been deprived of
their civil rights by people acting under color of state
"It's a violation of
free speech, and that's what [U.S. Supreme Court Justice
Samuel] Alito said in the committee report that everyone
voted on," Ken Schmier said.
He has brought two prior
suits in California courts over the citation rule, but the
courts dismissed them.
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