Unpublished CA Appellate Court Decisions - Another Nail In The Coffin Of CA Homeowner Justice?

PART I: Is it true that less than 10% of California Appellate Decisions are published?
Thursday, July 21st, 2011

The rules were established by persons in possession of a public office with authority to do so, and they comport with applicable statutory and constitutional requirements. Since an injunction will not lie to restrain respondents from implementing them, appellant has not stated and cannot state a claim entitling him to relief. [citation.]

On Appeal from the United States District Court for the Northern District of California

No. C-09-2740-WHA

The Honorable William Alsup, Judge

ANSWERING BRIEF

EDMUND G. BROWN JR.

Attorney General of California

In 1998, Appellant Schmier brought his first challenge to the state citation rules. He appeared in Superior Court in San Francisco as attorney for his brother, Michael Schmier, who was then a candidate in the Democratic primary for California Attorney General. Mr. Schmier sought to enjoin all California courts from observing the citation rules. The Supreme Court denied his petition. The State Court of Appeal affirmed, denied Schmier’s motion for costs and fees, and ordered the decision published.

The California Supreme Court and the United States Supreme Court denied review. The case was reported as Schmier v. Supreme Court, 78 Cal.App.4th 703 (2000), rehearing denied March 22, 2000, review denied May 24, 2000; cert. denied, 531 U.S. 958 (2000) (hereafter, “Schmier I”).

Schmier I made it clear that the publication rules that Appellant Schmier challenges are valid and that no change in them was required:

The rules were established by persons in possession of a public office with authority to do so, and they comport with applicable statutory and constitutional requirements. Since an injunction will not lie to restrain respondents from implementing them, appellant has not stated and cannot state a claim entitling him to relief. [citation.]

(Schmier I, supra, 78 Cal.App.4th 703, 712; emphasis added.)

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In 2001, Appellant Schmier brought a second state-court challenge to the rules under the guise of appealing the denial of attorney’s fees for Schmier I. This second case, also published as precedent, was Schmier v. Supreme Court, 96 Cal.App.4th 873 (2002), hereafter, “Schmier II.” Appellant Schmier alleged that Schmier I had conferred a significant benefit on the public by restricting the discretion of the state courts as to publishing opinions. The Superior Court denied attorney’s fees on the grounds that the rule had not been eliminated or changed. The state Court of Appeal affirmed. Id. at 882-83.

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In 2002, Appellant Schmier brought a third citation-rule challenge in state court. Having unsuccessfully litigated the validity of the publication rules as counsel for his brother in Schmier I and again under the guise of asking for attorney fees in Schmier II, he brought a third Superior Court action in his own name. The decision was published only as to the denial of certiorari by the United States Supreme Court, at Kenneth J. Schmier v. Supreme Court of California, et al., 543 U.S. 818 ( 2004).

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Appellant has also litigated against the federal publication rules. In Schmier v. United States Court of Appeals for Ninth Circuit, 279 F.3d 817 (9th Cir. 2002), this Court rejected on standing grounds Appellant Schmier’s challenge to the analogous Ninth Circuit citability rule, then Circuit Rule 36-3.

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CONCLUSION

It is clear that the claims below consist entirely of an impermissible effort to invoke a non-existent power of the lower federal courts to reverse decisions as to the precedential value of state-court decisions and to relitigate the validity of the California publication rules. The well-reasoned decision of the district court should be affirmed.

Dated: March 11, 2010

Respectfully submitted,

EDMUND G. BROWN JR.

Attorney General of California

.......... California Unpublished Cases - In The US Court of Appeals For The Ninth Circuit - Kenneth J. Schmier Vs. Ju...