Kenneth Schmier v. Justices of the California Supreme Court

MEMORANDUM

Attorney Kenneth J. Schmier (“Schmier”) appeals the dismissal of his federal court action seeking to enjoin enforcement of Rule 8.1115(a) of the California Rules of Court, which prohibits the citation as legal authority of any opinion not certified for publication, with some exceptions not at issue here. We affirm the district court’s holding that Schmier’s suit is barred by res judicata.

Pursuant to Rule 8.1115(a), Schmier was unable to cite several unpublished California decisions that, if precedential, he claims would exonerate certain of his clients facing criminal charges for traffic offenses. Schmier now challenges Rule 8.1115(a) as a content-based prior restraint in violation of the First and Fourteenth Amendments of the U.S. Constitution, as well as Article VI, § 6(d) of the California Constitution.

Schmier’s current claim is identical to one involving the same parties previously argued to, and decided on the merits by, the California courts. See Kenneth J. Schmier v. Supreme Court of Cal., 2003 WL 22954266 (Cal.App. Dec.16, 2003), review denied (2004), cert. denied, 543 U.S. 818 , 125 S.Ct. 56 , 160 L.Ed.2d 25 (2004); cf. Michael Schmier v. Supreme Court of…