Friday, October 27, 2000

Section: NATION

Edition: FINAL

Page: A8

Frank J. Murray

The Supreme Court will consider today whether appellate courts can bar lawyers from citing "unpublished opinions," the first time the issue has received such attention since Justice James McReynolds said in 1936 that most such rulings "have no proper place except in the waste basket."

The case scheduled for a vote at a closed conference on whether to review the matter involves a challenge by Emeryville, Calif., lawyer Michael Schmier to California Supreme Court policy forbidding legal publication of most decisions, and barring mention of them when arguing unrelated cases.

His stated goal is "to eliminate California Rules of Court . . . prohibiting the citation of more than 93 percent of all decisions of the Court of Appeal to any court for any purpose."

The Federal Judicial Center reports huge variations among the federal circuits with the 4th Circuit publishing 11 percent of its appellate rulings while the 7th Circuit published 54 percent.

Mr. Schmier's brief argued that such rules violate the First and 14th amendments to the Constitution, although an unrelated case wending through federal courts from Missouri is considered a more likely vehicle to test their constitutionality.

The state did not file a response to Mr. Schmier's high court petition.

The American Bar Association is studying implications of the federal ruling, said Luke Bierman, a special assistant to the ABA president.

"It's fair to say . . . there are a number of groups within the association looking at this issue with some seriousness. [That federal] opinion may signal that it's time to take a fresh look," Mr. Bierman said.

"The growth [in the number of published opinions] is indicative of too much written material creating too little new law," said Chief Judge Boyce F. Martin Jr., of the 6th U.S. Circuit Court of Appeals, who quoted Justice McReynolds' 1936 assertion the law would be better off if three-fourths of published opinions were destroyed instead of multiplied by printing presses.

"Our multiplied utterances would increase beyond all reason were we forced to publish all our opinions," Judge Martin said.

In an interview, Mr. Schmier blamed opposition to his stand by California jurists with derailing his 1998 campaign to be California attorney general - an effort in which Mr. Schmier finished last among four Democratic primary candidates with 4.1 percent of the party vote.

"When Justice Anthony Kennedy was here for a speech, my brother and I went up to him to talk about this and he got very angry at us," Mr. Schmier said, quoting the former Californian as replying, "If you guys want us to do it right, we'd need 1,000 more judges."

State and federal court rules vary widely on this issue and the 8th U.S. Circuit Court of Appeals in St. Louis said on Aug. 22 that letting the court label some of its own decisions meaningless for citation in other cases violates Article III of the Constitution.

The 8th Circuit thus became the first federal appeals court to declare all decisions, published or unpublished, admissible as legal precedent. The ruling applies only in that circuit where a request is pending to rehear the 3-0 opinion in which Judge Richard Arnold adopted a view the Justice Department put forward in a tax case.

"[The rule] expands the judicial power beyond the limits set by Article III by allowing us complete discretion to determine which judicial decisions will bind us and which will not," Judge Arnold wrote. "The rule is therefore unconstitutional."

"The Judicial Conference has provided no clarification or guidance to the courts of appeals, either before or after this August ruling," said Dick Carelli, a spokesman for the federal court system.

If the 8th Circuit ruling stands, the outcome seems likely to be appealed to the Supreme Court.


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