Nation - California Legal gadfly runs for office, sues to change rules

Candidate also running for seat on attorney regulation board By Paul Elias Associated Press Writer SAN FRANCISCO (AP) -- Mike Schmier spent a recent afternoon tirelessly traipsing through a downtown Oakland office building full of law firms and attorneys. He buttonholed anyone who showed the slightest interest in his cause. Or made eye contact. In a profession not lacking for gadflies, perennial California attorney general candidate Schmier stands out. This is his third try to secure the Democratic nomination for attorney general. The Emeryville lawyer is simultaneously running for a seat on the State Bar Board of Regents, which oversees the California agency that licenses and regulates lawyers. Schmier also ran for governor during the 2003 recall. He once ran for the U.S. Senate. Besides spending countless hours and dollars seeking elective office, the dapper, trim and divorced Schmier, 65, also files lawsuits, lobbies legislators and spends many of his waking hours on an obsessive quest that riles judges, garners support from lawyers and is best appreciated by legal scholars and appellate law junkies. Schmier's eyes sparkle under bushy eyebrows when he discusses his obsession with abolishing an arcane court rule that devalues the legal value of the vast majority of decisions issued by the California Court of Appeal, the state's second highest court. For decades, lawyers have been prohibited from citing appellate decisions classified as "unpublished," meaning they aren't deemed important enough to be included in the state court's official law books of appellate decisions. Such precious space is reserved in court libraries for "published" opinions, which are supposed to settle substantive disputes over legal interpretations. The appeals court rendered more than 11,000 opinions in 2008 and about 90 percent of them were tagged with the second-class label because they dealt with frivolous appeals or were easy decisions based on well-established law. The legal conclusions of unpublished opinions apply only to the one particular case at issue. Lawyers may not cite them as precedent to bolster arguments in other cases. The expectation is that appellate judges and their staffs spend considerably less time and effort on unpublished matters as they do on published opinions. Court leaders argue that lifting the citation prohibition would overburden and already stressed court system. "We would have to sift through every affirmance, every joy-riding conviction, every fender bender civil case in an attempt to find a needle in a haystack," said the California Chief Justice Ron George. "It's just not an intelligent use of resources." Still, Schmier and his ilk have had their successes outside California. Most notably, the U.S. Supreme Court in 2006 changed its rule in their favor for federal courts. Several other states now allow unpublished opinions to be cited, including New York, Michigan and Connecticut. Nonetheless, Schmier remains undeterred that California will change its rule, even though he's lost every legal challenge. He's also garnered only token support in every statewide election in which he's competed. This year there are seven Democrats vying for their party's attorney general nominations and Schmier is the only candidate barred from speaking or seeking endorsements at the Democratic Convention next month. Party leaders have slapped a "not viable" tag on his candidacy and sent back the signs he wanted to hang at the convention. Last week, he cornered workers compensation lawyer Barry Lesch in the hallway outside his Oakland office. Schmier started his stump speech with a discourse on the intricacies of a Bar Mitzvah, moved on to the discovery of Pluto and concluded with comparing the California rule to Caligula's reign as emperor. "I don't see why not," an amused Lesch tells Schmier in agreeing with him on the need to abolish the rule. "It would make the people who write the decision write them a little better if they knew they would be cited." Published: Wed, Apr 7, 2010

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