Nonpublished rulings:

Disorder in the courts?

Marin Independent Journal November 5, 1999


"Selective publication" is a judicial practice that is perfectly legal but one whose detractors say led, in 1998, to more than 90 percent of California's appellate court decisions never seeing the light of day.

That hardly seems fair to citizens who expect rulings in court cases involving them to be based on the widest possible body of knowledge.

Kenneth J. Schmier, a San Francisco attorney and Mill Valley businessman, goes further. He flatly says selective publication as well as "depublication" - permitting the state Supreme Court to expunge published opinions that set a precedent - weaken judges' accountability and defy our system of equal justice under the law.

"Similar situations cannot be resolved in the same way," Schmier said, "when there exists no knowable institutional memory of what the courts have done in past similar situations."

The issue likely wouldn't have surfaced locally if Schmier hadn't been forcibly removed from a Marin "Meet Your Judges Night" forum a year ago while trying to ask local judges and justices about selective publication and depublication.

Nonpublication and noncitation of appellate court decisions are also legal in 29 other states, plus many federal courts, but everyone objects. Paul Haerle of Marin, a judge in California's First District Court of Appeal, says that if all courts published all opinions the system "would be drowning in paperwork."

But that argument no longer holds up, with paperwork giving way to storage on computer chips.

At best, selective publication and depublication should be explored with an eye toward reform. At the very least, the collective issue deserves the kind of public hearing suggested by Kenneth Schmier, who, by crying foul, already has performed a public service.