Lifschitz v. George, No. 3:2010cv02107 - Document 32 (N.D. Cal. 2011)
Court Description: ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITHOUT LEAVE TO AMEND (SI, COURT STAFF) (Filed on 1/29/2011)
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Lifschitz v. George Doc. 32 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 ERIC L. LIFSCHITZ, 9 United States District Court For the Northern District of California 10 11 12 No. C 10-2107 SI Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS WITHOUT LEAVE TO AMEND v. RONALD M. GEORGE, Defendant. / 13 14 On September 3, 2010, the Court held a hearing on defendant’s motion to dismiss the complaint. 15 The Court ordered supplemental briefing, and on December 2, 2010, stayed this case pending the Ninth 16 Circuit’s resolution of Schmier v. Justices of California Supreme Court, 9th Cir. No. 09-17195. The 17 parties have informed the Court that on December 22, 2010, the Ninth Circuit issued an unpublished 18 memorandum disposition in Schmier. Accordingly, the Court lifts the stay in this case. For the reasons 19 set forth below, the Court GRANTS the motion and dismisses the complaint without leave to amend. 20 21 BACKGROUND 22 On May 17, 2010, plaintiff Eric Lifschitz filed a complaint for declaratory and injunctive relief 23 against Ronald M. George, in his official administrative capacity as Chair of the Judicial Council of 24 California. Plaintiff is an attorney, and he brings suit on behalf of himself and all other similarly 25 situated attorneys admitted to practice law before the state courts of California, “who as a result of 26 California Rules of Court promulgated and continued to be enforced by the Judicial Council of 27 California are only permitted to cite or mention opinions of California state courts that have been 28 designated as ‘certified for publication’ or ordered officially published (‘published’ cases), and are Dockets.Justia.com 1 forbidden from citing or even mentioning any other cases to the California state or any other courts.” 2 Compl. ¶ 1. Plaintiff alleges that these California Rules of Court amount to a prior restraint of free 3 speech in violation of the First and Fourteenth Amendments of the United States Constitution. Plaintiff 4 also alleges that the rules violate his First Amendment right to petition the government for redress, as 5 well as his right to Due Process because the procedure for requesting publication of an unpublished 6 decision denies him a meaningful opportunity to be heard. Plaintiff brings this action for declaratory 7 and prospective injunctive relief pursuant to 42 U.S.C. § 1983 and Ex Parte Young, 209 U.S. 123 8 (1908). 9 United States District Court For the Northern District of California 10 Plaintiff challenges two California Rules of Court. California Rule of Court 8.1115, titled “Citation of Opinions,” provides in relevant part: 11 (a) Unpublished opinion 12 13 Except as provided in (b), an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action. 14 (b) Exceptions 15 An unpublished opinion may be cited or relief on: 16 (1) When the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or 17 18 19 20 21 (2) When the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action. Cal. Rules of Court 8.1115. California Rule of Court 8.1120, titled “Requested publication of unpublished opinions,” provides, 22 (a) Request 23 (1) Any person may request that an unpublished opinion be ordered published. 24 (2) The request must be made by a letter to the court that rendered the opinion, concisely stating the person’s interest and the reason why the opinion meets a standard for publication. 25 26 27 28 (3) The request must be delivered to the rendering court within 20 days after the opinion is filed. (4) The request must be served on all parties. 2 1 (b) Action by rendering court 2 (1) If the rendering court does not or cannot grant the request before the decision is final in that court, it must forward the request to the Supreme Court with a copy of its opinion, its recommendation for disposition, and a brief statement of its reasons. The rendering court must forward these materials within 15 days after the decision is final in that court. 3 4 5 (2) The rendering court must also send a copy of its recommendation and reasons to all parties and any person who requested publication. 6 (c) Action by Supreme Court 7 8 The Supreme Court may order the opinion published or deny the request. The court must send notice of its action to the rendering court, all parties, and any person who requested publication. 9 (d) Effect of Supreme Court order to publish United States District Court For the Northern District of California 10 11 12 A Supreme Court order to publish is not an expression of the court’s opinion of the correctness of the result of the decision or of any law stated in the opinion. Cal. Rules of Court 8.1120. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEGAL STANDARD Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570. In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court must assume that the plaintiff’s allegations are true and must draw all reasonable inferences in the plaintiff’s favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth 3 1 Circuit has “repeatedly held that ‘a district court should grant leave to amend even if no request to 2 amend the pleading was made, unless it determines that the pleading could not possibly be cured by the 3 allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quoting Doe v. United 4 States, 58 F.3d 494, 497 (9th Cir. 1995)). 5 6 7 DISCUSSION I. Standing Defendant contends that plaintiff lacks standing to challenge the citability and publication rules 9 because the complaint only alleges a generalized interest in citing unpublished cases, and does not allege 10 United States District Court For the Northern District of California 8 an action “that has immediately and personally subjected him to sanctions or has adversely affected one 11 of more of [plaintiff’s] clients.” Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 817, 12 821-22 (9th Cir. 2002)(“Schmier 1"). In Schmier 1, the plaintiff attorney challenged the Ninth Circuit’s 13 since-amended rules prohibiting citation to unpublished opinions.1 The plaintiff alleged that, “as an 14 attorney who practices in the courts of the Ninth Circuit and a citizen ‘beneficially interested . . . and 15 personally concerned’ in seeing the Ninth Circuit ‘perform their duties under the law,’ he is entitled to 16 injunctive relief that would require (among other things) recognition by all the courts in the Ninth 17 Circuit that all their orders and opinions, published or unpublished, carry the force of precedent . . . .” 18 Id. at 819. The Ninth Circuit affirmed the district court’s dismissal of the complaint on standing 19 grounds: 20 21 22 23 24 First, Schmier has not alleged a violation of a right personal to himself; rather, he appears to allege an injury on behalf of all lawyers practicing within the Ninth Circuit (or, indeed, all persons residing within that Circuit’s geographical confines), along with an injury to all his clients generally. Further, the harm that he describes in his complaint actually deals only with the speculative loss of some alleged right in citing and relying on an unpublished decision that someday, in some case of his, may somehow help one of his current (or future) clients obtain a favorable result of some sort. He does not even assert that, as a result of the Circuit Rules, he has abstained from citing an unpublished decision that he believed would serve as a helpful precedent. 25 26 27 28 1 At the time of Schmier 1, Ninth Circuit Rule 36-3 prohibited parties and courts in the Ninth Circuit from citing to an unpublished disposition as precedent. In 2006 the federal rules were amended to add Federal Rule of Appellate Procedure 32.1, which rejects rules barring citation to unpublished judicial decisions that were published after January 1, 2007. The current version of Ninth Circuit Rule 36-3 prohibits citation to unpublished decisions issued prior to January 1, 2007. 4 1 Id. at 821. Similarly, in Loritz v. U.S. Court of Appeals for the Ninth Circuit, 382 F.3d 990, 992 (9th 2 Cir. 2004), after the Ninth Circuit affirmed the denial of a habeas corpus petition in an unpublished 3 disposition, the habeas petitioner brought suit against the Ninth Circuit Court of Appeals challenging 4 the constitutionality of its rules regarding unpublished dispositions. The Ninth Circuit held that the 5 plaintiff lacked standing for two reasons: 6 9 First, a litigant’s mere desire to cite an unpublished disposition does not, by itself, establish standing because a litigant must show how he or she was actually injured by a particular Circuit rule. . . Here, Loritz does not show that the outcome of his particular case could have been affected were he able to cite an unpublished disposition. . . . Second, we note that Loritz does not have standing by simply contending that the Circuit Rules “prevent all future litigants from bringing the decision in [Loritz’s] appeal to [the court’s] attention.” 10 Id. at 992. Defendant contends that, just as in Schmier 1 and Loritz, plaintiff is asserting a generalized 11 challenge to the citability and publication rules, and has not alleged a concrete, particularized, and 12 immediate injury. 7 United States District Court For the Northern District of California 8 13 Plaintiff contends that he has standing and that he is different from the Schmier 1 plaintiff 14 because he has alleged that he has been and continues to be affected by the citability and publication 15 rules. The complaint alleges that “Plaintiff, like all attorneys licensed to practice law in California, is 16 subject to the California Rules of Court when he appears, litigates, or otherwise files documents in any 17 of the courts of the State of California. Mr. Lifschitz is therefore subject to CRC 8.1115, which 18 prohibits attorneys and pro per litigants from citing cases that have not been designated as ‘certified for 19 publication’ or ordered officially published (‘unpublished’ cases). Mr. Lifschitz has in fact petitioned 20 to publish an opinion and the rendering court has declined to do so.” Compl. ¶ 4. The complaint also 21 alleges that “But for this prohibition, Plaintiff would have cited to such ‘unpublished’ opinions in prior 22 and ongoing matters that he has and/or is litigating before California state courts, and would be likely 23 to continue doing so in the future.” Id. In addition, in opposition to defendant’s motion, plaintiff has 24 submitted (1) a copy of a letter from the presiding justice of the California Court of Appeal, First 25 Appellate District, Division Four, recommending to defendant George the denial of plaintiff’s2 petition 26 to publish an opinion, and (2) docket sheets from a few cases pending in California state courts in which 27 2 28 Defendant notes that there is no evidence in the record showing that plaintiff was counsel of record in that case. 5 1 plaintiff is listed as counsel of record. See Darsky Decl. Ex. 1, 2. To establish standing, plaintiff must allege (1) an “injury in fact” that is concrete, particularized 3 and actual or imminent, not hypothetical; (2) causation; and (3) that it is likely, as opposed to merely 4 speculative, that the injury will be redressed by a favorable decision. American Civil Liberties Union 5 of Nevada v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006). Plaintiff contends that the injury that he 6 suffers is the violation of his constitutional rights because he is prevented from citing unpublished 7 decisions, and that a favorable decision in this case would redress that injury. The Court agrees with 8 plaintiff that the allegations here differ from those in Schmier 1 because here plaintiff has alleged that 9 his constitutional rights have been and will continue to be violated. Defendant emphasizes the language 10 United States District Court For the Northern District of California 2 in Schmier 1 in which the Ninth Circuit noted that Mr. Schmier had failed to “allege any action by the 11 Ninth Circuit that has immediately and personally subjected him to sanctions or has adversely affected 12 one or more of Schmier’s clients in a Ninth Circuit litigation.” Schmier 1, 279 F.3d at 821-22. 13 However, the Court does not interpret Schmier 1 as holding that such allegations are necessary for 14 standing to challenge the citability rules, just that such allegations would be sufficient. Here, the injury 15 that plaintiff alleges is an injury to his First Amendment rights by being prevented from citing 16 unpublished California Court of Appeal decisions; such alleged injury exists regardless of whether 17 plaintiff is threatened with sanctions by the California courts, or whether the rules have adversely 18 affected one of plaintiff’s clients. The Court finds that plaintiff has sufficiently alleged standing. 19 20 21 22 II. Merits A. First Amendment 1. Prior restraint 23 Plaintiff alleges that CRC 8.115 is an impermissible prior restraint on speech because the rule 24 prospectively forbids an attorney from citing or even mentioning an unpublished case unless and until 25 the attorney has first obtained permission from California’s state courts to designate the “unpublished” 26 case as “published,” pursuant to CRC 8.1120. Plaintiff primarily relies on Legal Services Corp. v. 27 Velazquez, 531 U.S. 533 (2001), which involved a challenge to a Legal Services Corporation (LSC) 28 funding provision. The provision prohibited attorneys or legal service agencies receiving LSC funds 6 1 from engaging in legal representation involving an effort to amend or otherwise challenge existing 2 welfare law. Lawyers were permitted to represent clients who were challenging determinations of 3 benefit ineligibility, but were precluded from representations designed to change the welfare laws, or 4 from arguing that any applicable state statute conflicts with a federal statute or that either the state or 5 federal statute violates the United States Constitution. In a 5-4 decision, the Supreme Court held that 6 the challenged provision constituted viewpoint-based discrimination that violated the First Amendment. 7 The effect of the restriction, however, is to prohibit advice or argumentation that existing welfare laws are unconstitutional or unlawful. Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise. Here, notwithstanding Congress’ purpose to confine and limit its program, the restriction operates to insulate current welfare laws from constitutional scrutiny and certain other legal challenges, a condition implicating central First Amendment concerns. In no lawsuit funded by the Government can the LSC attorney, speaking on behalf of a private client, challenge existing welfare laws. As a result, arguments by indigent clients that a welfare statute is unlawful or unconstitutional cannot be expressed in this Government-funded program for petitioning the courts, even though the program was created for litigation involving welfare benefits, and even though the ordinary course of litigation involves the expression of theories and postulates on both, or multiple, sides of an issue. 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 Id. at 547-48. The Court finds that Velasquez is inapposite. Unlike the restriction in Velasquez, the 16 “no-citation” rule does not discriminate between competing viewpoints. The California Rules of Court 17 do not proscribe the expression of any idea, concept or argument, and instead only provide that counsel 18 may not cite unpublished cases. The California citation rule does not preclude counsel from advancing 19 arguments or reasoning found in unpublished decisions; the rule simply provides that attorneys may not 20 cite unpublished decisions as authority.3 21 Judge Alsup recently rejected a similar First Amendment challenge to California’s citability and 22 publication rules. Schmier v. Justices of California Supreme Court, No. C 09-2740 WHA, 2009 WL 23 2246205 (N.D. Cal. July 27, 2009)(“Schmier 2").4 In Schmier 2, the plaintiff lawyer alleged that 24 25 26 27 28 3 Plaintiff devotes much of the briefing to the distinction between citing an unpublished opinion as precedent, versus citing an unpublished opinion as persuasive authority. The Court finds that this distinction is not material to the analysis of plaintiff’s constitutional challenges. 4 In an unpublished memorandum disposition filed December 22, 2010, the Ninth Circuit affirmed Judge Alsup’s alternative holding that Schmier’s lawsuit was barred by res judicata, and the court did not reach Judge Alsup’s decision regarding the merits of Schmier’s First Amendment 7 1 California’s citability and publication rules violated the First Amendment and constituted an 2 impermissible prior restraint on speech. Judge Alsup rejected this contention: 3 7 Plaintiff cites no on-point authority for the proposition that no-citation rules are unconstitutional. To the contrary, decisions of the Supreme Court and Ninth Circuit have explained that, as a general matter, the judiciary is afforded latitude in constructing court rules of speech and conduct. See, e.g. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (stating that it is “unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to ‘free speech’ an attorney has is extremely circumscribed”). First Amendment claims brought by attorneys as officers of the court are closely scrutinized. Levine v. District Court, 764 F.2d 590, 595 (9th Cir. 1985). 8 ... 9 First Amendment claims are evaluated differently according to the forum in which they are raised. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797-800, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985). Courts of law are considered “nonpublic fora” to which a much higher hurdle for establishing a constitutional violation applies. Under this standard, restrictions on free expression in nonpublic fora are constitutional if the distinctions drawn (1) are reasonable in light of the purpose served by the forum and (2) are viewpoint neutral. Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966 (2002). The Ninth Circuit made clear in Sammartano that while the reasonability standard was not one of rationality alone, a restriction would not violate the Constitution merely because it was “less reasonable” than its alternatives. Id. at 966-67. 4 5 6 United States District Court For the Northern District of California 10 11 12 13 14 15 19 Under this relatively forgiving standard, the no-citation rule is constitutionally reasonable. Decisions that have considered challenges to rules regarding the publication of decisions have rejected such claims. As Judge Thelton Henderson has explained, “[u]nder California’s system for publication and citation of cases, unpublished and uncitable opinions should not announce new rules at all . . . To the extent that unpublished cases do so, it is because the Court of Appeal misapplied the publication criteria-an argument to be raised on direct appeal, and not in a challenge to the citation rule.” Hild v. California Supreme Court, 2008 WL 544469, at *3 (N.D.Cal.2008), appeal pending, No. 08-15785.5 20 Schmier 2, 2009 WL 2246205, at *2-3. Judge Alsup further found if even if the First Amendment claim 16 17 18 21 22 23 24 25 26 27 28 challenge. See Docket No. 30, Ex. 1 (memorandum disposition in Schmier (“Schmier 3")). 5 Hild v. California Supreme Court, No. C 07-5107 TEH, 2008 WL 544469 (N.D. Cal. Feb. 26, 2008), involved due process and equal protection challenges to California’s citability rules. The Hild appeal has since been dismissed by the Ninth Circuit as moot. In Hild, the plaintiff had prevailed in a state court action at the trial level, and then the California Court of Appeal ruled against the plaintiff in an unpublished decision. The Hild plaintiff filed the federal lawsuit challenging the citability rules, and at the same time, filed a petition for review of the unpublished California Court of Appeal decision in the California Supreme Court. By the time of the Ninth Circuit appeal, the California Supreme Court had declined review in the state court case, and the United States Supreme Court had denied review by certiorari. In an order filed September 28, 2009, the Ninth Circuit held that because the Hild plaintiff did not allege that he would be harmed by the citability rules in the future, there was no claimed harm that the court could redress, and thus dismissed the appeal as moot. 8 1 was analyzed under the standard for public fora, the plaintiff’s claim failed. Under the public fora 2 standard, “[e]xpression, whether oral or written or symbolized by conduct, is subject to reasonable time, 3 place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that 4 they are justified without reference to the content of the regulated speech, that they are narrowly tailored 5 to serve a significant governmental interest, and that they leave open ample alternative channels for 6 communication of the information.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 7 (1984). Judge Alsup held, 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 At the very outset, plaintiff cannot demonstrate that the no-citation rule fails the content-neutrality requirement on its face. See Simon & Schuster, Inc. v. N.Y. State Crime Victims Bd., 502 U.S. 105, 127-28, 112 S.Ct. 501, 116 L.Ed2d 476 (1991) (providing a list of ways in which a rule or regulation may be content-based, none of which are implicated in the present matter). In Boos v. Barry, 485 U.S. 312, 320, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988), the Supreme Court described “content-neutral speech restrictions as those that are justified without reference to the content of the regulated speech.” Applying this test to the present case, Rule 8.1115(a), which prohibits citation to unpublished decisions, says nothing about the content of such decisions. As in Boos, although this Rule pertains to “a particular category of speech,” it appears likely that “its justification had nothing to do with that speech.” Ibid. Under the Boos standard, plaintiff’s contention that the no-citation rule runs afoul of the First Amendment is unpersuasive. For all of these reasons, plaintiff’s First Amendment challenge to California’s no-citation rule is rejected. Schmier 2, 2009 WL 2246205, at *4. Judge Alsup found further support for California’s citability rules in the Ninth Circuit’s decision in Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001). In that case, the Ninth Circuit rejected a different constitutional challenge to the since-amended Ninth Circuit rule regarding the publication of judicial opinions.6 In so holding, the Ninth Circuit noted that “[s]ome state court systems apply the binding authority principle differently than do the federal courts . . . The California Supreme Court may ‘depublish’ a court of appeal opinion- i.e., strip a published decision of its precedential effect . . . California’s depublication practice shows that it is possible to adopt more aggressive methods of managing precedent than those used by the federal courts.” Hart, 266 F.3d at 1174 n. 30. In addition, Judge Alsup noted that although the federal rules were amended to reject rules barring citation to 26 6 27 28 In Hart, the appellant’s lawyer cited an unpublished opinion in his opening brief, and the Ninth Circuit ordered counsel to show cause why he should not be disciplined for violating Circuit Rule 36-3. In response to the order to show cause, counsel asserted that the rule violated Article III of the Constitution. 9 1 unpublished judicial decisions that were published after January 1, 2007, the fact that the Ninth Circuit’s 2 rule still prohibits citation to unpublished opinions issued prior to January 1, 2007 “strongly suggests 3 that the determination regarding whether or not courts may prevent citation to unpublished authority is 4 not grounded in the Constitution.” Schmier 2, 2009 WL 2246205, at *3. The Court agrees with Judge Alsup’s reasoning and concludes that California’s citability and 6 publication rules do not violate the First Amendment right to free speech. California’s rules do not 7 prohibit an attorney or litigant from advocating the ideas, concepts and wording of an unpublished 8 opinion in any manner, including in argument to a court. The rules only prohibit attorneys and litigants 9 from citing to unpublished opinions as legal authority or as precedent. Further, as other courts have 10 United States District Court For the Northern District of California 5 recognized “[t]he broad constitutional and legislative authority granting the Supreme Court selective 11 publication discretion manifests a policy that California’s highest court, with its supervisory powers 12 over lower courts, should oversee the orderly development of decisional law, giving due consideration 13 to such factors as (a) the expense, unfairness to many litigants, and chaos in precedent research if all 14 Court of Appeal opinions were published, and (b) whether unpublished opinions would have the same 15 precedential value as published opinions.” Schmier v. Supreme Court of California, 78 Cal. App. 4th 16 703, 708 (2000)(“Schmier-Cal.”); see also Schmier 2, 2009 WL 2246205, at *4-5. 17 18 2. Right to petition the government for redress 19 Plaintiff separately alleges that the citability and publication rules violate his First Amendment 20 right to petition the government for redress because he cannot cite an unpublished decision to a 21 California court. Relying on Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board, 461 22 U.S. 731 (1983), and Professional Real Estate Investors, Inc. v. Colombia Pictures Industries, Inc., 508 23 U.S. 49 (1993) (“PREI”), plaintiff asserts that the Supreme Court has held that citizens cannot be 24 foreclosed from presenting their arguments or cases to a court unless the argument or case is deemed 25 meritless, baseless, or brought in bad faith. Plaintiff argues that Rule 8.115's blanket prohibition on the 26 citation of unpublished opinions “goes far beyond the limitations permitted under the Supreme Court 27 case law interpreting the First Amendment right to petition the government [because] [u]nder CRC 28 8.115, an attorney or litigant is forbidden from arguing that a particular case ought to be followed, 10 1 extended, modified, or repealed, regardless of whether such argument is meritorious.” Pl’s Supp. Brief 2 at 4:3-7. Plaintiff’s reliance on PREI and Bill Johnson’s Restaurants is misplaced. PREI examined the 4 scope of the Noerr-Pennington doctrine, which protects from liability those who petition the government 5 in order to secure or amend their rights. See Eastern Railroad Presidents Conference v. Noerr Motor 6 Freight, Inc., 365 U.S. 127 (1961); United Mine Workers of America v. Pennington, 381 U.S. 657 7 (1965). This right includes litigation, see California Motor Transport Co. v. Trucking Unlimited, 404 8 U.S. 508 (1972), but does not include “sham” or baseless litigation. PREI held that an objectively 9 reasonable effort to litigate against competitors is not “sham” litigation within the meaning of the Noerr- 10 United States District Court For the Northern District of California 3 Pennington doctrine, regardless of a plaintiff’s subjective intent. PREI, 508 U.S. at 60-61. Bill 11 Johnson’s Restaurants held that the filing and prosecution of a well-founded lawsuit by an employer 12 may not be enjoined as an unfair labor practice, even if the lawsuit was filed in retaliation against an 13 employee for exercising protected rights, and conversely, that it is an enjoinable unfair labor practice 14 to prosecute a baseless lawsuit with the intent of retaliating against an employee. 461 U.S. at 742-43. 15 Neither case addresses the question of whether a state court system can, pursuant to its authority to 16 adopt rules for court administration, practice and procedure, deem certain decisions “unpublished” and 17 prohibit citation to those unpublished dispositions. 18 Plaintiff also relies on cases striking down on First Amendment grounds state court rules 19 regarding confidentiality in the attorney disciplinary process. In Petition of Brooks, 140 N.H. 813 20 (1996), the New Hampshire Supreme Court struck down a New Hampshire rule of court under which 21 “a complainant was barred from revealing the fact that a complaint had been filed, what information or 22 testimony the complainant provided the committee, any action taken by the committee in response to 23 the complaint, and any information acquired by the complainant through interaction with the committee. 24 Even when the committee deemed a complaint well-founded and the attorney under investigation 25 received an admonition or a reprimand, the complainant was still forever barred from publicly disclosing 26 this information, unless an exception applied.” Id. at 818-19. The New Hampshire Supreme Court held 27 that this was a content-based regulation prohibiting “speech traditionally accorded the most solicitous 28 protection of the first amendment; namely, criticism of the government’s performance of its duties.” Id. 11 1 at 819. The court concluded that the restriction was not narrowly tailored to meet any State interest. 2 Id. at 821-23. 3 Brooks is inapposite. Unlike the rule in Brooks, the California Rules of Court challenged here 4 are content-neutral. Further, in Brooks the court rule deemed all records and proceedings involving 5 allegations of misconduct by attorneys confidential, whereas here the unpublished opinions, while not 6 citable in court, remain public records. In Brooks, the challenged rule directly burdened an individual’s 7 right to petition the government for redress. In contrast, plaintiff is free to make any legal arguments 8 he wishes to the California courts; he simply cannot cite to unpublished opinions as authority or 9 precedent. The Court concludes that plaintiff’s First Amendment petition for redress claim fails. United States District Court For the Northern District of California 10 11 B. 12 Plaintiff also alleges that the California Rules of Court violate his right to procedural due process 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Due Process under the Fourteenth Amendment. Plaintiff frames his due process claim as follows: [T]here is no question that Lifschitz has properly alleged a deprivation of his liberty interest to free speech and to petition the government that is brought about by CRC 8.1115’s prohibition on citation of unpublished cases. The Fourteenth Amendment’s due process clause provides that such a deprivation by the State may not be undertaken without “due process of law.” At a minimum, that means that the State must provide the aggrieved individual with notice of the deprivation and an opportunity to be heard. Here, California’s sole mechanism for this notice and hearing arises by operation of CRC 8.1120. Under that Rule, any person may request in writing that the court that issued the unpublished opinion certify the opinion for publication. However, CRC 8.1220(a)(3) mandates that such a written request “must be delivered to the rendering court within 20 days after the opinion is filed.” This 20-day filing requirement, which begins to run on the date the unpublished opinion is filed without regard to when an interested litigant’s need or desire to cite the opinion arises, renders any notice or opportunity to be heard wholly illusory. A litigant’s liberty interest in being able to cite an opinion arises when that litigant first has need or desire to cite that authority in his pending case, and not merely when the unpublished authority was decided. If Lifschitz files a brief in a pending case today and would like to cite to an unpublished decision therein that was decided a month or a year ago, he is afforded no due process for seeking leave to do so under the CRCs. Opposition at 20:16-21:10 (citations omitted). Defendant contends that plaintiff’s due process argument rests on a false premise, namely that he has a constitutional right to cite an unpublished case as legal authority in California courts. “To be 12 1 entitled to procedural due process, a party must show a liberty or property interest in the benefit for 2 which protection is sought. If the party establishes that such an interest exists, a court determines what 3 process was due and whether the party was actually afforded such process.” Greenwood v. F.A.A., 28 4 F.3d 971, 975 (9th Cir. 1994). The Court agrees with defendant that, for the reasons explained supra, 5 plaintiff has not shown that he has a First Amendment right to cite unpublished opinions, and thus 6 plaintiff’s procedural due process claim fails. Moreover, even assuming that plaintiff has such a First Amendment right, plaintiff’s due process 8 claim fails because the 20 day period allowed by Rule 8.1120(a)(3) is reasonable and provides all the 9 process that is due. Plaintiff asserts that the 20 day limitations period violates due process because it 10 United States District Court For the Northern District of California 7 “seeks to bind everyone – even non-parties to the unpublished opinion that never had notice or an 11 opportunity to be heard as to the unpublished designation given to that opinion. . . . The Rule (CRC 12 8.1120) would require non-parties who were not even alive at the time that a California state court issues 13 an unpublished opinion to challenge that designation within 20 days of its issuance.” Pl’s Response to 14 Supp. Briefing at 6:12-21. Plaintiff does not mount any specific challenge to the 20 day limitation other 15 than the fact that there is a time limitation, and under plaintiff’s reasoning, any time limit would 16 constitute a procedural due process violation. 17 There is nothing inherently unreasonable about the 20 day limitation, and there is a well- 18 recognized need to have fixed time limits to provide stability and predictability in the law. Cf. Fields 19 v. Legacy Health Sys., 413 F.3d 943, 956-67 (9th Cir. 2005) (“Courts will generally uphold a statute of 20 limitations against a due process challenge as long as the plaintiff is accorded a reasonable time, under 21 all the circumstances, to bring suit before the bar takes effect.”). Indeed, current Ninth Circuit Rule 36- 22 3(c) provides that, subject to several exceptions, unpublished Ninth Circuit dispositions and orders 23 issued before January 1, 2007 may not be cited in any court in the Ninth Circuit. The existence of this 24 rule strongly suggests that California’s system does not violate due process. 25 26 III. Immunity 27 Defendant contends that this lawsuit is barred by either the Eleventh Amendment or judicial 28 immunity because the California Rules of Court at issue were enacted by the California Supreme Court, 13 1 which is an arm of the State. Because the Court has dismissed plaintiff’s claims, the Court does not 2 reach the immunity arguments. 3 4 5 6 CONCLUSION For the reasons set forth above, the Court GRANTS defendant’s motion to dismiss the complaint with prejudice. (Docket No. 7). 7 8 IT IS SO ORDERED. 9 United States District Court For the Northern District of California 10 Dated: January 28, 2011 SUSAN ILLSTON United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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