Lawyer brothers fight selective publication

September 2, 1999

By Jane Futcher IJ reporter

Thirteen Marin Judges looked on in silence a year ago as four sheriff's deputies, following orders from the moderator, Marin Judge Stephen Graham, removed a man who was asking a question at "Meet Your Judges" night at the Veterans Memorial Auditorium in San Rafael.

The deputies handcuffed the man and arrested him for disturbing the peace and resisting arrest. It was a bizarre ending to a staid public forum billed as a chance for Marin to get to know its judges.

The man in custody was Kenneth J. Schmier of San Francisco, a 49-year-old attorney and former Mill Valley resident who once owned a Bay Area furniture chain called Sofabed Conspiracy. He is now an Emeryville real estate developer and the inventor of NextBus, a computerized bus tracking system being tested by the city of San Francisco.

In May, Schmier filed a $10 million claim against Marin County for being "assaulted, battered, falsely arrested, falsely imprisoned and defamed by employees acting for the county and state" at the judges' forum in October 1998.

County Counsel Patrick Faulkner won't discuss the terms of a proposed settlement, but he said yesterday he's "optimistic" about the prospect of settling with Schmier. Schmier said he has agreed to drop his claim against the county in return for Marin's promise to hold a public forum to discuss a practice that Schmier says threatens California's judicial system.

The practice is called selective publication, permitted by California Rules of Court 976-979. Because of those rules, in 1998 more than 90 percent of California appellate court decisions were not published, according to the 1998 Court Statistics Report of the Judicial Council of California. Under Rule 977, unpublished decisions cannot be cited in any court proceedings or litigation.

Appellate courts in more than 30 states have nonpublication and nocitation rules. So do many federal courts.

"My purpose is to draw the public's attention to these rules, because I believe if the people knew about them, they would in no way allow them," Schmier said.

A number of legal experts agree. Two longtime opponents of nonpublication and noncitation in federal courts are professors William M. Richman of the University of Toledo School of Law and William L. Reynolds of the University of Maryland School of Law.

In a 1996 article in the Cornell Law Review, they argue that selective publication leads to a two-track appellate court system - well-reasoned, published opinions for the rich and unpublished ones for the weak.

"Only a third of the (federal district) courts' opinions are published," they write. "The remainder exist in a quasi-precedential netherworld, vastly reducing judicial accountability. Finally, the courts have abandoned the notion of one appellate method for all cases and all litigants. The significant cases, those brought by wealthy, powerful or institutional litigants, receive the traditional appellate model. The routine, trivial cases - usually poorer, weaker litigants - are relegated to two-track appellate justice."

Many California judges, including California Supreme Justice Ronald George, support selective publication, arguing that publication of every appellate court decision would overwhelm the state's appellate courts and swamp the legal system. In March 1998, George told the San Francisco Daily Journal that unpublished opinions are a "necessary evil to chill development of the law."

California Supreme Court Justice Kathryn M. Werdegar, a Marin resident and panelist at "Meet Your Judges Night," echoed those sentiments earlier this year.

"There are 14,500 cases disposed of by written opinions every year in California," Werdegar said. "Our concern as the highest court in California is to keep the law in an orderly fashion. It would be impossible for this court to review 14,000 opinions every year. If the opinion states something new or citable, under the rules it would normally be published. If it doesn't (state something new) and it were published, it could lead to chaos for trial courts who are trying to apply the law."

First District Court of Appeal Judge Paul Haerle of Marin, who was a panelist at the judges' forum, also supports selective publication.

"I don't see a threat to the legal from this practice. If all the courts of this nation put into print all of their decisions, lawyers and courts would be drowning in paperwork," Haerle said after the judges' forum.

"Most cases tend not to be cases that make new law and don't resolve conflicting decisions of court," Haerle said. "They tend to be standardized issues that don't help lawyers or trial courts in decisions that are coming down the road. We were trying to be judicious in what we order published. How many sets of books in any library can you have?"

Schmier disagrees. "When has the saving of trees been determined to be of such public stature that it trumps constitutional rights?" he said, adding that the advent of online publishing eliminates the need to publish every decision in a book.

Schmier is convinced that noncitation rule 977 has "surreptitiously ended" the age-old system of stare decisis, by which legal principles used by courts to decide one case may be applied to subsequent cases involving similar facts.

"Respect for law cannot be maintained while the courts cannot be expected to resolve similar situations in the same way," Schmier said. "Similar situations cannot be resolved in the same way when there exists no knowable institutional memory of what the courts have done in past similar situations."

One appellate court case that might have set precedent for Californians in similar situations was left unpublished by the 4^th Appellate District of California in Santa Ana. It involved a single mother in Huntington Beach. Michiko Kamiyama, now 44, could not find a baby-sitter for her 8-year-old daughter and one evening in 1996 she left her child at home alone in her townhouse in a locked-gate community while she went to work.

Kamiyama was convicted of misdemeanor child abuse and jailed for three months. In 1998, the appellate court overturned her conviction but ordered the decision not to be published. As a result, says Schmier, thousands of parents who may find themselves in a similar situation cannot use the case to argue against their arrest.

Like many California residents, Schmier's brother Michael, a seasoned attorney who watched in shock as his brother was arrested last October, did not know much about selective publication - until he encountered the practice firsthand in 1996. His ex-wife was involved in a real estate dispute over a parking lot she owned in Los Angeles. Jeanne B. Schmier lost her case as well as her appeal to the 2^nd District of Appeal, in an unpublished decision Ken Schmier says was poorly reasoned.

Last year, Michael Schmier, incensed by such "secret rulings," ran in the California primary for state attorney general. He promised to end the practice of selective publication, saying that unpublished opinions "enable judges ti ignore the law, knowing this injustice is hidden. Corruption and arrogance fester as every level because precedent is destroyed."

To overturn California Rules of Court 976-979, the Schmier brothers have created the Committee for the Rule of Law, a group of lawyers, academics, jurists and other citizens who oppose selective publication. Ken Schmier has also designed a website, www.nonpublication.com, as a resource.

A majority of lawyers and judges who attended the 9^th Circuit Judicial Conference in Los Angeles voted 113-77 to recommend that attorneys be allowed to cite unpublished decisions in arguments and briefs to the federal Court of Appeals.

Among the eminent law professors who oppose selective publication is attorney Gideon Kanner, emeritus professor at Loyola University in Los Angeles, who fought the noncitation rule since it was created in 1972. In a 1973 California State Bar Journal titled "The Unpublished Opinion: Friend or Foe?" Kanner argued that legal opinions, like all acts of government, should be open to the public.

According to Kanner, high court judges still offer the "too many trees" arguments because "they have tasted blood and they like it. They have available to them the means of manipulating the law, and they don't have to follow precedent."

Not following precedent, Kanner says, means "you walk into court and you never know what the judge is going to do."

Kanner also says that selective publication encourages lazy, poorly reasoned appellate decisions. "Judges are human," Kanner said. "The nonpublication option gives them the opportunity to make opinions without creating big trouble. Therefore, instead of putting pressure on courts to improve the quality of opinions and reduce the number of appeals, they keep processing the river of paper flowing through court."

Kanner says "depublication" of appellate court decisions, allowed by California Rule of Court 979, is even more disturbing than nonpubication because it allows precedent-setting published opinions to be expunged by the state Supreme Court.

Professor Stephen Barnett of Boalt Hall School of Law at the University of California at Berkeley has also called for an end to Rule 979. The Supreme Court of California depublishes more cases than it writes, according to Barnett in "Depublication Deflating," a 1995 article in the Hastings Law Journal.

"The Supreme Court decides there is something they don't like therefore it shouldn't be law," Barnett said. "It's improper for the court to do that without actually deciding the case. The court doesn't say what it doesn't like about the case. And there's the potential for treating different litigants differently. This litigant loses but the next litigant in same position may win."

Ken Schmier says such practices violate the constitutional right to equal justice under the law. "Depublication is not a word defined anywhere. The right word is erase," Schmier said.

"The whole system is not just unconstitutional, it's unwise as well."