Benjamin Elliot Kaplan (SBN 43456)
Douglas C. MacLellan (SBN 169933)
Opera Plaza, Suite 2090
601 Van Ness Avenue
San Francisco, California 94102
Telephone: (415) 447-8300

Kenneth J. Schmier (SBN 62666)
1475 Powell Street
Emeryville, California

Attorneys for Plaintiff/Petitioner




MICHAEL SCHMIER, individually, and for all persons similarly situated in the State of California, and as a Private Attorney General,






Action No. 995232


Date: May 22,1998
Time: 2:00 p.m.
Dept: 302 Writs and Receivers


California Rules of Court 976(b) and (c), (hereinafter referred to only as "Rule 976"), 977, 978, and 979 establish a system of selective publication of the opinions of the CALIFORNIA COURTS OF APPEAL (hereinafter referred to as "COURTS OF APPEAL") and the SUPREME COURT OF CALIFORNIA, (hereinafter referred to as "SUPREME COURT"). This system has no standard requiring publication of any opinion. Under this system, only a small percentage of appellate opinions are published in the California Official Reports. An opinion which is not so published may not be cited, or relied upon, as precedent by any court at any time in the future, even by the very court that rendered the opinion, except in matters relating to the same litigants.

No rational relationship or legitimate government purpose or policy is now served by following Rules 976, 977, 978, and 979. The introduction of personal computers, CD ROM, DVD, the Internet and other on-line services has obviated any objection that publication of all opinions will be too costly or create logistical problems. The people of California are entitled to consult all decisions of the SUPREME COURT and the COURTS OF APPEAL for guidance on how to pursue their own affairs.

In instances where a COURT OF APPEAL designates its opinion "Not To Be Published In The Official Reports" and the opinion is thus not published in the Official Reports, that opinion is increasingly review-proof by the SUPREME COURT, as there is little incentive to review the opinion. This classifies petitioner as a litigant whose further claims to the SUPREME COURT merit no further review. The unpublished decisions become "secret law" that result in decision making without the discipline and accountability that the preparation of published opinions requires.

Equal protection and due process problems are inherent when opinions are not able to be cited. In addition, First Amendment issues such as freedom of speech and the right of citizens to petition the government for redress of grievances are implicated. If the grievance on which relief is sought is a petitioner's claim that the law is not being uniformly applied in the courts, because there is a lack of even-handedness in the treatment of himself and other classes of litigants, he or she is deprived of an effective opportunity to do so.

Petitioner seeks a Writ of Mandate or Prohibition in the alternative, or other appropriate relief, on the grounds that this system of selective publication violates the following: (1) The Equal Protection and Due Process Clause of the Fourteenth Amendment, 1, to the United States Constitution and in both Article I, 7, and Article IV, 16, of the California Constitution; (2) the constitutional provisions of the Separation of Powers, California Constitution, Article III, 3; (3) the right to petition the government for redress of grievances of the First Amendment of the United States Constitution, and of Article I, 3 of the California Constitution; (4) the guarantee of freedom of speech of the First Amendment of the United States Constitution, and of Article I, 2 of the California Constitution; and (5) the doctrine of stare decisis, as embodied by the common law of as rule of decision, pursuant to California Civil Code 22.2.


Rule 976(b) of the California Rules of Court allows no opinions of a Court of Appeal or appellate department of the superior court to be published in the Official Reports unless the opinion establishes a new rule of law, applies an existing rule differently, or modifies, or criticizes with reasons given, an existing rule; (2) resolves or creates an apparent conflict in the law; (3) involves a legal issue of continuing public interest; or (4) makes a significant contribution of legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law."

Rule 976(c) of the California Rules of Court provides, in pertinent part, that "(1) An opinion of a court of Appeal or an appellate department of the superior court shall be published if a majority of the court rendering the opinion certifies, prior to the decision's finality in that court, that it meets one or more of the standards of subdivision (b); (2) An opinion certified for publication shall not be published, and an opinion not so certified shall be published, on an order of the Supreme Court to that effect."

Rule 977 of the California Rules of Court provides, in pertinent part that an opinion of a Court of Appeal or an appellate department of the superior court that is not certified for publication or ordered published shall not be cited or relied on by a court or a party in any other action or proceeding except when the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel or when the opinion is relevant to a criminal or disciplinary action or proceeding because it states reasons for a decision affecting the same defendant or respondent in another such action or proceeding.

When a request for publication is made to the court that rendered the opinion, pursuant to Rule 978(a) of the California Rules of Court, if the court does not grant the request, it must transmit the request, a copy of its opinion, its recommendation for disposition and a brief statement of its reasons to the SUPREME COURT. When a request for publication is received by the SUPREME COURT, the SUPREME COURT shall either order the opinion published or deny the request, pursuant to Rule 978(b).

When a request for depublication is received by the Supreme Court pursuant to Rule 979 of the California Rules of Court, the court shall either order the opinion published or deny the request. Nothing in Rule 979 limits the court's power, on its own opinion, to order an opinion republished.


California Rules of Court, Rules 976, 977, 978 and 979 Violate Equal Protection and Due Process

By marking its opinion in a case "Not To Be Published In The Official Reports", the COURTS OF APPEAL are ruling that any changes it makes to California law do not apply in all similar instances, but instead apply only to those specific parties. The courts' lack of publication, coupled with the no citation provisions of Rule 977, mandates that any new precedent is not to be applied to anyone else. Publication of an opinion, pursuant to Rule 978 of the California Rules of Court, enables the COURT OF APPEAL and the SUPREME COURT to decide an appeal by the same standards those courts would have had to use were the opinion published originally. In that way, the COURTS OF APPEAL are held accountable for considering and justifying their holdings under penalty of public criticism and responsibility for upholding California laws.

Rule 976 was not adopted without objection. See page 2 of the September 1974 issue of the State Bar of California Reports:

"'We think it is dangerous to a democratic society to have more than 93% of all the criminal cases considered by the appellate courts stamped for non- publication,' Santa Clara attorney Rose Bird told delegates in arguing for a resolution in favor of publication of all appeal opinions in criminal matters. Delegates voted to send a resolution to a conference committee for study."

The lack of publication unconstitutionally deprives parties of any meaningful chance of review by the SUPREME COURT. The SUPREME COURT's focus is not on correction of error by a COURT OF APPEAL or protection of the rights of the parties of any specific case. People v. Davis (1905) 147 Cal. 346. Accordingly, as one important California treatise has explained,

"If the court of appeal decision is unpublished, it has no precedential value by definition, and therefore the supreme court will usually deny the petition for review. . . . [I]t is nearly review-proof because it has no precedential value." (2 CALIFORNIA CONTINUING EDUCATION OF THE BAR, CALIFORNIA CIVIL APPELLATE PRACTICE (3d 1997) 22.6, at 960)

An unpublished appellate opinion which states new rules cannot be recognized as creating new rules, nor can it be cited to other courts as precedent. These new laws or legal holdings apply as to those parties in the case before the COURT OF APPEAL, and to no other person or entity in California. That is so because Rule 977 of the California Rules of Court prevents reliance on and citation of the opinion, except in very limited circumstances. Thus, the COURT OF APPEAL's opinion could result in new legal holdings, inconsistent with binding precedent, that apply only to a petitioner. This result violates the fundamental equal protection principle that litigants in similar situations must be treated the same.

California Supreme Court Justice Ronald M. George defends nonpublication as a "necessary evil to chill the development of the law." In sharp contrast to Justice George's view, Supreme Court Reporter William Cranch, in his preface to his first volume of the United States Reports, identified the special importance of publication of opinions that announce new rules of law, so that litigants can structure their affairs and seek to predict the outcome of possible litigation:

"In a government of laws, the least possible range ought to be left for the discretion of the judge. Whatever tends to render the laws certain, equally tends to limit that discretion; and perhaps nothing conduces more to that object than the publication of reports. Every case decided is a check upon the judge. He cannot decide a similar case differently, without strong reasons, which, of his own justification, he will wish to make public. The avenues to corruption are thus obstructed, and the sources of litigation closed." (Preface, 5 U.S. [1 Cranch] (1801))

In County of Los Angeles v. Kling (1985) 474 U.S. 936, 937, Justice Stevens noted:

"'In our law the opinion has in addition a central forward-looking function which reaches far beyond the cause in hand: the opinion has as one if not its major office to show how like cases are properly to be decided in the future. This also frequently casts its shadow before, and affects the deciding of the cause in hand. (If I cannot give a reason I should be willing to stand to, I must shrink from the very result which otherwise seems good.) Thus the opinion serves as a steadying factor which aides reckonability.'" (Id. at 937 n.6 (Stevens, J., dissenting) (quoting K. LLEWELLYN, THE COMMON LAW TRADITION 26 (1960), as quoted in W. Reynolds & W. Richman, The Non-Precedential Precedent--Limited Publication and No-Citation Rules in the United States Courts of Appeals (1978)

788 COLUM. L. REV. 1167, 1204))

Other respected writers have made similar points:

"When a []court completely denies public access to judicial opinions, it removes an important check on judicial activity from the legal system. Public availability of judicial opinions helps to hold judges accountable to society for the decisions they reach. Public scrutiny helps to maintain the integrity of the judicial system and assure that individual cases are fairly decided.
"Forcing judicial decision making into the light of day helps not only to assure fairness in fact, but, perhaps as importantly, to promote the appearance of fairness. When a judge's reasoning in a particular case is open to public scrutiny, litigants may be less likely to believe that the decision was arbitrary or unfair. Therefore the public availability of []opinions promotes judicial accountability, which may also enhance public confidence in the legal system." (K. Shuldberg, Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals (1997) 85 Cal. L. Rev. 541, 567 (footnote omitted).)

Precedent, along with the doctrine of stare decisis, is the hallmark of our adjudicatory system: If justice is to be dispensed even-handedly, then, of course, similar cases must be decided similarly. Precedent and publication, as William Cranch declared, thus "tends to render the laws certain."

Rules 976 through 979 of the California Rules of Court mandate that the rules applied by the COURT OF APPEAL to determine one case apply to that case alone and also mandate, as a requirement of California law, that they never be brought to the Court of Appeals or any other court's attention again, even if the fact situation is exactly the same.

And, equally importantly, the non-publication of the opinion necessarily means that the COURT OF APPEAL itself is not even bound by the decision in the future. Because its own non-published decision cannot be cited back to it as precedent in the future, it can proceed as if this decision never existed and, indeed, reach precisely the contrary result the next day on the same set of facts in yet another unpublished decision, without realistic fear of review by any other court.

For all practical purposes, the California court system has developed a unique model of "selective prospectivity" that not only develops new rules of law, but then says that these new rules will apply only in this case and not to any other in the future. Doing so violates the Constitution's guarantee of equal protection:

"[S]elective prospectivity also breaches the principle that litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally. . . 'We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a "new" rule of constitutional law." . . . selective prospectivity appears never to have been endorsed in the civil context." (James B. Beam Distilling Co. v. Georgia (1991) 501 U.S. 529, 537-38 (emphasis added).)

In his concurrence in Beam, with which Justices Marshall and Scalia joined, Justice Blackmun expressed concern about the constitutional violations promulgated by the Rules.

"I agree that failure to apply a newly declared constitutional rule to cases pending on direct review violates basic norms of constitutional adjudication. I seems to me that our decision in Griffith v. Kentucky, makes clear that this Court's function in articulating new rules of decision must comport with its duty to decide only "Cases" and "Controversies." Unlike a legislature, we do not promulgate new rules to "be applied prospectively only," as the dissent, and perhaps Justice Souter, would have it. The nature of judicial review constrains us to consider the case that is actually before us, and, if it requires us to announce a new rule, to do so in the context of the case and apply it to the parties who brought us the case to decide. To do otherwise is to warp the role that we, as judges, play in a Government of limited powers.
I do not read Justice SCALIA's comments on the division of federal powers to reject the idea expressed so well by the last Justice Harlan that selective application of new rules violates the principle of treating similarly situated defendants the same. This rule, which we have characterized as a question of equity, is not the remedial equity that the dissent seems to believe can trump the role of adjudication in our constitutional scheme. It derives from the integrity of judicial review, which does not justify applying principles determined to be wrong to litigants who are in or may still come to court. We fulfill our judicial responsibility by requiring retroactive application of each new rule we announce.
Application of new decisional rules does not thwart the principles of stare decisis, as the dissent suggests. The doctrine of stare decisis profoundly serves important purposes in our legal system. Nearly a half century ago, Justice Roberts cautioned: "Respect for tribunals must fall when the bar and the public come to understand that nothing that has been said in prior adjudication has force in a current controversy." The present dissent's view of stare decisis would rob the doctrine of its validity through eliminating the tension between the current controversy. . . By announcing new rules prospectively or by applying them selectively, a court may dodge the stare decisis bullet by avoiding the disruption of settled expectations that otherwise prevents us from disturbing our settled precedents. Because it forces us to consider the disruption that our new decisional rules cause, retroactivity combines with stare decisis to prevent us from altering the law each time the opportunity presents itself." Beam, Id., 501 U.S. 529, 547-548.

One of the most bizarre consequence of California's "No Publication-No Citation" rule is that the California appellate courts will allow citation of a first year law student's note in a law review as authority, while prohibiting lawyers who dare cite as precedent an actual case or controversy involving an identical or comparable situation.

This non-publication process of the California Rules of Court has destroyed the equal protection rights the stare decisis system guarantees to litigants in American courts. Rule 976(b) of the California Rules of Court does not compel that any opinion of the California COURTS OF APPEAL ever be published under any circumstance, even when the content may be of great novelty or importance: publication or non-publication is wholly up to the COURT OF APPEAL, subject to possible SUPREME COURT contrary decision. Bernard Witkin hit the mark squarely when he charged that in reality the SUPREME COURT's practice of decertification has become a "distinct form of [substantive] review." Witkin (1977) Manual on Appellate Court Opinions 22, p. 35.

Worse yet, it portends corruption and tyranny. When Rules 976 through 979 were first adopted twenty-four years ago, very few California decisions were marked "Not To Be Published In The Official Reports." Now the practice of the COURTS OF APPEAL is close to uniform non-publication. This transition has been so gradual that very few lawyers, let alone members of the general public, have any idea this destruction of the appellate system of law has taken place. Despite uniform and voluminous criticism in scholarly legal periodicals since the adoption of Rule 977 in 1974, the public press has never taken any note of this desecration of our most important legal right.

For example, the Court of Appeal, Second Appellate District, Division Two, has consistently had a rate of publication among the lowest of California's eighteen Divisions or Districts of California's intermediate appellate courts. In 1994-95 (the most recent statistics available), the Division published only 7% of its civil appeals--the second lowest of any appellate court in California--and only 4% of its criminal appeals. CALIFORNIA JUDICIAL COUNCIL, 1996 ANNUAL REPORT 94. In 1993-94, the civil figure for the same Division was 6%, the lowest in the State, while in 1992-93, the figure was 10%, the second lowest. CALIFORNIA JUDICIAL COUNCIL, 1995 ANNUAL REPORT 69, and CALIFORNIA JUDICIAL COUNCIL, 1994 ANNUAL REPORT 101. Yet, as already noted, for a civil appellant in the California judicial system, receipt of such an unpublished opinion virtually ensures immunity for that opinion, however badly written or error ridden, from review by the SUPREME COURT. The Court of Appeal, Second Appellate District, Division Two, uses non-publication in 930 out of every 1000 civil appeals, which it may use to shield itself from further review by another court. This type of practice perpetuates the opportunity for errors and corruption. If a court is not willing to "stand to" a decision as valid precedent for all, that decision should not be made or should not be enforceable.

Along with the destruction of stare decisis has gone any systemic capability for society to correct bad court policy because that bad policy is buried in decisions not available to the public. There remains no incentive for any law professor, law student, academic, industry representative, legislator, governor, journalist or other citizen to take interest in the vast majority of matters adjudicated by the Court of Appeal because these matters are marked "Not To Be Published In The Official Reports" and cannot possibly be used as authority to affect the community-at-large.

"The questionable practice of the Supreme Court in ordering Court of Appeal opinions unpublished without explanation has been criticized. The instant case is an illustration of one of the mischiefs that flow from the depublication practice. Once a Court of Appeal opinion has been certified for publication by the panel deciding the case, it is printed in the Official Advance Sheets and also finds its way into the bound volumes of the unofficial California Reporter even if ordered unpublished by the Supreme Court. It may well not be the best of practice when lawyers and judges fail to discover that what appears to be a published opinion is in fact an unpublished opinion. However, such an oversight by busy trial lawyers and trial judges is understandable. The depublication practice is a trap for the harried trial judge.
"In the words of Omar Khayyam in the Rubaiyat: 'The moving finger writes; and having writ, moves on, nor all thy Piety or wit shall lure back to cancel half a line, nor all thy tears wash out a word of it.' Once a Court of Appeal opinion is certified for publication, the Supreme Court's attempt to "CANCEL" ALL ITS LINES AND "WASH OUT" ALL ITs words by ordering it depublished can never be wholly successful." (In re John D. (1981) 17 Cal.Rptr. 278, 280.)

The non-publication order also classifies any petitioner to the SUPREME COURT as a "second-class" litigant, whose further claims to the SUPREME COURT merit no further review. By non-publication, the SUPREME COURT has assured the community that it will never be affected by the rules that nonetheless govern petitioner's affairs.

Rules 976, 977, 978, and 979 Violate the Doctrine of Stare Decisis

The departure from the centuries old doctrine of stare decisis implicit in the non-publication rules can easily result in second-rate decisions and erroneous writing and thinking. It has permitted California's appellate courts, without realistic fear of SUPREME COURT review, to decide cases on an ad hoc basis without regard to precedent.

"[A] fair reading of rule 977 of the California Rules of Court surely allows citation to the unpublished opinion. To hold otherwise leaves us in the Orwellian situation where the Court of Appeal opinion binds us, under Auto Equity Sales v. Superior Court, supra, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937, but we cannot tell anyone about it. Such a rule of law is intolerable in a society whose governmental decisions are supposed to be free and open and whose legal system is founded on principles of the common law (Civ.Code, s 22.2) with its elementary reliance on the doctrine of stare decisis." (Presiding Judge Cole' concurrence, County of Los Angeles v. Wilshire Insurance Co. (1978) 103 Cal.App.3d Supp.1, 3, 163 Cal.Rptr. 123, 124.)

This situation has rarely been addressed. When the Appellate Department of the Superior Court of Los Angeles attempted to find the Rules invalid and mark its opinion for publication, the Court of Appeal vacated that Appellate Department's decision in People v. Valenzuela (1978) 86 Cal.App.3d 427, 150 Cal.Rptr. 314. The Court of Appeal failed to address the issue of the Rules at all in its decision. It was only in the dissent that the issue was addressed on limited grounds at all.


By summarily cutting off any possibility of propagation of the holdings made in a COURT OF APPEAL's decision through the device of non-publication, the SUPREME COURT has cut-off all public interest and debate regarding these rules. Such a judicial system violates the Constitution's guarantee of equal protection, due process, separation of powers, freedom of speech and the doctrine of stare decisis.

That no court has yet carefully considered the impact of the combined unpublished opinion and no citation policies on equal protection, due process, separation of powers, freedom of speech and stare decisis in this singularly important context should serve to heighten the need for review to a virtual necessity. This Petition for Writ of Mandate or Prohibition or Other Appropriate Relief offers this Court the opportunity to restore the discipline of stare decisis, without concerns about recognizing decades of unpublished opinions. By recognizing that it is only present litigants who are damaged by "No Publication-No Citation" rules, and who thereby are the only persons or entities with standing to raise the issue, the Court can limit its conclusions only to enjoining the enforcement of cases where res judicata has not yet attached to the final judgment. The Court thus can correct this problem without unleashing a torrent of past unpublished opinions as precedent.

The citation ban decreases the amount of appellate law available to guide litigants, attorneys and judges. From the perspective of public administration, there is reason to fear that this decrease impairs the appellate courts' ability to enforce compliance with the law by lower courts and thus contributes to the law explosion. Courts may be viewed as a specialized form of hierarchical organization, in which appellate courts are supervisors and trial courts are subordinates. The literature of administrative hierarchies stresses the difficulty administrative superiors have in enforcing their orders among subordinates. Appellate judges are in an even more difficult supervisory position. Unlike bureaucratic bosses, appellate judges cannot initiate corrective action; they must wait for litigants to request review. And unlike bureaucratic subordinates, lower court judges cannot go to their superiors for advice on how to interpret a given ruling.

Petitioner respectfully requests that this Court grant his MOTION FOR ISSUANCE OF A WRIT OF MANDATE OR PROHIBITION IN THE ALTERNATIVE, and issue an alternative writ of mandate or prohibition, or whatever appropriate relief is necessary, to compel the publication of all SUPREME COURT and COURTS OF APPEAL's opinions. In this way, America's most valuable asset, the expectation of justice, would be preserved and protected.

Dated: May 26, 1998
Respectfully submitted,




Attorney for Petitioner