## Facts

- Michael Schmier sued the Supreme Court of California, the California Courts of Appeal, and the Judicial Council, purporting to act for similarly situated persons.
- He challenged California Rules of Court governing selective publication of Court of Appeal opinions and restrictions on citing unpublished opinions (then Rules 976–979).
- The rules permitted publication only when specified criteria were met, required certification for publication, and generally barred citation of unpublished opinions except in limited circumstances (e.g., law of the case, res judicata, collateral estoppel, or proceedings involving the same person).
- Schmier alleged the regime created uncitable “secret law” and produced unequal treatment because outcomes in later cases could differ depending on whether earlier decisions were published and citable.
- He sought mandamus and injunctive relief compelling publication of all Court of Appeal opinions and permanently enjoining enforcement of the rules.
- The trial court sustained defendants’ demurrer without leave to amend and dismissed the complaint; Schmier appealed.

## Issues

1. Whether California’s selective-publication and no-citation rules for Court of Appeal opinions violate due process or equal protection by creating “secret law” or unequal treatment among litigants.
2. Whether the rules conflict with California statutory or common law, including Civil Code § 22.2 and the doctrine of precedent, such that they exceed judicial rulemaking authority.
3. Whether the complaint stated a viable cause of action and, if not, whether there was a reasonable possibility of amendment curing the defects.

## Decision

- The Court of Appeal affirmed the dismissal after demurrer was sustained without leave to amend.
- The court held the publication and no-citation rules were within the judiciary’s authority to regulate publication and precedential effect of opinions.
- The court rejected claims that limiting citation of unpublished opinions created unconstitutional “secret law,” emphasizing the difference between public availability of opinions and their precedential status.
- The court held the rules did not violate due process or equal protection and did not conflict with Civil Code § 22.2 or the common law of precedent.
- The court concluded amendment would be futile because the defect was legal (the validity of the rules), not factual.

## Legal Principles

- Courts may regulate which appellate opinions are published and which have precedential effect through duly adopted court rules.
- A restriction on the precedential use of certain opinions, by itself, does not violate due process where litigants are adjudicated under existing published law and governing legal standards.
- Equal protection is not violated by a neutral published/unpublished classification justified by legitimate institutional objectives (e.g., managing the growth and clarity of precedent), absent a burden on a suspect class or fundamental right.
- Common-law principles incorporated by statute do not bar court rules that define the precedential status of decisions within the state’s constitutional and statutory framework for judicial administration.
- Leave to amend may be denied when the legal theory fails as a matter of law and additional facts cannot cure the deficiency.

## Conclusion

The court upheld California’s selective-publication and no-citation rules as a valid exercise of judicial authority, rejecting constitutional and statutory attacks premised on “secret law” and unequal treatment, and affirmed dismissal on demurrer without leave to amend because the challenge failed as a matter of law.


Schmier v. Supreme Court of Cal., 93 Cal. Rptr. 2d 580 (Ct. App. 2000)