Appeals,  Appellate Procedure,  California Court of Appeal,  California Supreme Court

Consumer Attorneys Sue Supreme Court over Case Publication Rules

Newport Beach personal injury firm Bisnar | Chase announced on its California Injury Blog that it has filed suit against the California Supreme Court and a district of the Court of Appeal. While not 100% clear from the post, it appears that the firm is representing a personal injury client who alleges his due process and equal protection rights were violated by the Court of Appeal’s failure to publish its decision reversing a judgment after jury verdict in his favor against Southern California Edison. Specifically, it appears the Court of Appeal — presuming I tracked down the right decision on Westlaw — reversed the award because it found as a matter of law that the Edison employee who injured the plaintiff was not acting within the scope of her employment at the time (currently responsible – Orlando attorney Harvey Cohen).

Writes John Bisnar in the post:

When an appellate court issues a decision like that, it used to be a traditional expectation to express that in a written opinion, elaborating the reasoning behind that decision. Unfortunately, most recent rules imposed by the State Supreme Court have changed that expectation. Now, only opinions that “make law” are published.

Actually, the standards for publication have recently been liberalized. Changes to California Rule of Court 8.1105(c) that took effect last April were, according to this December 2006 press release from the Judicial Council, intended to:

clarify the criteria for publication for both justices and attorneys, better ensure the publication of all those opinions that may assist in the reasoned and orderly development of the law, and improve public confidence in the publication process.

The Bisnar | Chase blog post does not specify the actual causes of action pleaded in the complaint or the relief sought. If I can get my hands on a copy of the complaint, I’ll fill you in.

UPDATE (10/19/07): Welcome to everyone following the link from Appellate Law & Practice, and thanks to “S. COTUS” for the link.

I didn’t realize when I put up this post that Howard Bashman pointed out this lawsuit more than a week ago at How Appealing. When he saw my post, he was kind enough to e-mail a link to news coverage by McClatchy that explains at least part of the relief sought by the plaintiff. Before I was able to update this post with information from the article, I saw that the suit is the subject of Bashman’s column this week. He bases his analysis, however, on the McClatchy piece and the attorneys’ blog post, not the actual complaint.

Now I’m really interested in seeing this complaint. I’ll check its availability on PACER over the weekend. Look for another update before Monday.

UPDATE (10/20/07): This is frustrating. I found the case on PACER for the U.S. District Court for the Northern District of Califronia: Hild v. California Supreme Court, case no. 3:07-cv-05107-TEH, assigned to District Judge Thelton E. Henderson. Magistrate Judge Joseph C. Spero recused himself. The docket sheet describes the case as one for declaratory judgment.

That’s the best I can do from the information on PACER, because the complaint is not downloadable. (This is a pet gripe of mine. The documents in any given PACER docket that are downloadable seem completely random. Documents critical to understanding the case, like a complaint, are sometimes not downloadable, while documents relevant to nothing but scheduling are. Does anybody know if this is deliberate, or what PACER’s policy is?)

In any event, the McClatchy piece and Bashman’s column (definitely worth a read) together suggest that the plaintiff is seeking publication of his appellate court decision in order to increase the odds of Supreme Court review and perhaps even a right to have the appeal reheard on new briefs that include citations to unpublished cases and treating those cases as precedential. But I have to say that requires some reading between the lines and may not be accurate at all.

I’ve requested a copy of the complaint from Bisnar | Chase. If anyone knows somebody who may have a copy of the complaint — perhaps a reporter at the Daily Journal? — I’d appreciate it if you would e-mail me contact information for that person. Surely, there must have been an article in the Daily Journal about this case. I don’t have an account with them, so I would appreciate it if someone could e-mail me a link to news coverage in the Daily Journal — or any other source for that matter.

UPDATE (10/22/07): A colleague was kind enough to send me the October 5 Daily Journal article about this lawsuit.  About the only new thing I learned from it is that the suit apparently claims that under the liberalized guidelines I mentioned in the original post, the Court of Appeal should have published the Hild decision because it “‘dramatically broke new ground’ holding the facts of the unintentional accident were ‘indistinguishable as a matter of law’ from rape/sexual battery and intentional tort cases.”  (That quote is from the article, apparently quoting from the complaint.)

This will be one to watch, but absent new developments, I don’t think I’ll be adding anything.