Ken Schmier
1475 Powell Street
Emeryville, CA 94608

August 10, 1997

Ms. Victoria Henley
Commission on Judicial Performance
By Fax to 415.904.3666


Enclosed is the opinion of the Appellate Court, Division Two, David D. Jennings v. Jeanne B. Schmier. This unpublished opinion is unusual for several reasons, many of which are apparent from the opinion itself. The circumstances under which it has been written are unusual. I readily admit that if the opinion is ultimately upheld, persons close to myself and I will lose a great deal of money. However, my purpose in writing this letter is not to influence the ultimate resolution of the case, although we dearly hope the case will be reversed. We believe there is a problem at the Court.

We believe the opinion is not that of the three judges whose signatures are attached to it on a separate page. There are a very large number of irregularities in the opinion itself and in procedural aspects of this case that provoke this suspicion. Our attorneys, who we respect as outstanding scholars, and a former Justice of the California Supreme Court, tell us that while such a contention is admittedly farfetched, it is nonetheless "technically possible". In so telling us, they do concur that if an attempt to substitute a forged opinion for a real opinion in an unpublished case was made, the controls established by the Courtís procedures would leave such corruption unlikely to be noticed by the Court itself, impossible to detect by those outside the Court system, and unlikely to be set right by any remaining process of the Supreme Courts of California or the United States.

It is for this reason that we are calling this matter to your attention before the case is completed. If, in your experienced, independent and unemotional judgment, there is a reasonable basis for our suspicion then your ability to find the culprit will be greatly enhanced by having this matter reported to you now. If we are wrong, we do not see how asking three judges if they actually concurred in an opinion could prejudice anyone but ourselves.

While there is more information than can be presented here, these are the major reasons we are suspicious.

Referring to the attached opinion. Please note that the last sentence on page 8 before the heading "Schmierís Appeal" indicates "This appeal will resolve which of respondentís two lots will provide parking for appellant." That question is never again addressed in this opinion. At that same point the style of writing obviously changes. In the preceding three and a half pages there were seven cites of authority, correctly resting each point of law on appropriate precedent. However, after the heading "Schmierís Appeal," and throughout the balance of the opinion, there is only one cite of case law and one cite to Witkin with neither relating to the legal issues articulately raised by Appellantís briefs. The appeal essentially presents only questions of law. Despite the competent presentation of controlling Supreme Court precedents and Civil Code Statutes the opinion completely fails to follow, distinguish, or even recognize that authority, manufactures law completely contrary to that of the State of California, and follows that "unique" law without any discussion. The opinion makes three full measures of award for one measure of damage. The opinion expressly applies a rule of law to one party, and then applies its 180 degree opposite to the other. It does this not once, but twice. We think it is unlikely that the Presiding Judge, or for that matter any judge, of any court, at any level, would issue an opinion so obviously and unfairly violating the equal protection clauses of the United States and California Constitutions, even in the unlikely event a court was motivated to do so. The person actually writing that language would have to be of insufficient legal skill or even basic human sensitivity to fail to experience the repugnance that the unequal application of law meets in the hearts and minds of all who love justice.

The opinion indicates a kind of malicious bias, a bias completely unfounded from the record. While the appellant does not claim to be in anyway perfect, we are aware of no basis in the record, or even outside the record, that warrants this kind of judicial animosity.

For a further examination of the opinion please see the Petition for Rehearing attached to this letter.

There is more. In addition to the irregularities in the opinion, there are irregularities in the Court processes. This matter was originally placed on the calendar for oral argument Jan 31, 1997. On 1/29/97, two days before that hearing, the matter was ordered off calendar without explanation. Despite the Court being current with all of its workload, the matter was not placed on calendar until 6/27/97 -- five months later.

There has been no explanation for this delay. Perhaps the decision drafted by a law clerk was unacceptable at the conference. Perhaps the Presiding Judge decided to write a scholarly opinion. However this opinion is marked not to be published. We reluctantly ask, was the delay to allow a law clerk who had read the record and drafted the opinion complete a clerkship before this opinion was released for circulation to the other judges? Or to the litigants?


There is still more. The respondent made it expressly clear that he had no desire to have the appeal go forward. The transcript of the case was "lost" for over one and a half years. Respondents rejected an irrevocable letter of credit as an appeal bond. When Ken and Eric Schmier filed in the court of Judge Judith Chirlin as sureties, they were rejected as sureties by Judge Chirlin notwithstanding their impeccable and appropriate financial qualifications, credit and reputation because they were inactive attorneys, and when those two names were replaced with Moses Libitzky and Beverly Schmier , non attorneys and also of appropriate financial qualification and impeccable reputation and credit, Judge Chirlin ruled, without inquiry of any kind, that these eminently qualified sureties were only put forward for the purposes of fraud and delay Ė but without any support for such an accusation. However we posted a cash bond.

Finally, now that the matter is decided in the Appellate Court but subject to further review, the respondents press heavily to get other related court actions discussed in the Appellate Courtís opinion but assigned to other departments of the Superior Court moved to Judge Chirlinís department. Respondentís have attempted to entice us to do so by making concessions to us, and failing at that, have indicated they will press in the Court for such an order. We wonder why? Respondentís argue that Judge Chirlin is fully familiar with this matter. We wonder how Judge Chirlin has become fully familiar with this matter. Judge Chirlin assigned the case to Judge Richard Montes, who was the trial judge. Judge Chirlin only became the judge of this case after the trial was complete when Judge Montes was reassigned to the Juvenile Court. Attached please find respondents letter to counsel to this effect.

We ask you to consider that if a member of the Courtís staff swapped an opinion out of the file before it was mailed, and mailed the forgery, the switch would be unlikely to be noticed. The same is true if the PJ or his clerk did it. Even if a petition for rehearing came in, it goes back to its author through the same clerks. As we understand the procedure met by petitions for rehearing, the other judges are not even notified unless the opinionís author feels a rehearing is justified. So any one in the process could return a "rehearing denied" document back down the ranks. No one would ever suspect that a minute order stamped "rehearing denied" without statement of reason was unusual. This decision is unpublished. A hearing before the Supreme Court is unlikely. Therefore no reason exists for anyone to raise the issues contained in it with any of the judges in the future. And no judge burdened by the clearly excessive workload of our Courts would ever stop to ask why his opinion didnít satisfy all parties and result in a petition for rehearing, or an appeal. Even if such an action were discovered, who could be held responsible?

We have seen a file stamped copy of this opinion in the Courtís file, but the judges signatures all appear on a separate sheet of paper. That piece of paper could be attached to any document. Until the three judges who have signed the opinion are asked if they actually concurred in its issuance, we cannot be sure.

The Courts staff cannot assure us, since the person we ask may be the instrument by which what we desire to investigate may have taken place. Since we cannot ask the Judges if this is their opinion, we have no effective mechanism with which to authenticate the opinion.

Our concern now is, what if our motion for reconsideration is intercepted before it reaches the Judges. How can we, or your commission, be sure that when we receive the typical denial, without comment of the Court, that our moving papers have actually be read by the Court?

We understand that we present a farfetched scenario. However, Einstein revealed that the previously unheard of concept of nuclear energy existed only because he could not otherwise explain the illogical result that light emitted from a source on a moving train moved at exactly the same speed as light emitted from a stationary source. How else could malevolence at the Appellate Court be revealed except as revealed by an unpublished and otherwise impossible to explain opinion?

May we conclude by sincerely stating that we have enormous respect for the dignity of the courts. If the decision is in fact real, and is sustained, even if we believe it is unjust to us, we will accept the judgment and live by it, because we understand the great difficulty of judging, and the importance of having conflicts resolved peacefully. Our purpose in directing attention to this matter is not to degrade the Court, but to protect its dignity from those who would undermine it.

We ask your opinion . We are happy to cooperate with this Commission, even at risk to our position, if that is the Commissionís desire. Unless we hear from you, we will simply continue in the normal appellate processes for the time being.

Thank you for your attention.



Kenneth J. Schmier
(ex brother in law of appellant)

Attached: Decision of the Appellate Court
Motion for Reconsideration
Letter of Thomas L. Watters and Stipulation