Thursday, May 2, 2019
By ROGER M. GRACE
It’s getting out of hand.
Justices of courts of appeal are becoming so obsessed with carrying out their perceived duty to safeguard the sensibilities of adult parties who litigate in the courts that, increasingly, they are according them anonymity—sometimes without any request for it—often under circumstances where it’s senseless.
A case in point: the Third District Court of Appeal went so far on Thursday of last week as to use the initials, only, of a woman whose prosecution on a charge of misdemeanor DUI gave rise to the writ petition upon which that court was acting.
Well, at least rationality does reign in one quarter. Bucking the trend, Div. Three of this district’s Court of Appeal, in an opinion filed April 18, used the actual name of a woman who brought a writ proceeding in the Los Angeles Superior Court as “Jane Doe” and appealed from the denial using the same phony appellation. So common has become the practice of justices acceding to requests for anonymity that attorney Mark Hathaway, representing the appellant, Madeline Schrager—who was protesting an “F” in chemistry while a student at USC—was emboldened to ask that the panel seal the opinion it had publicly released two days earlier and reissue Schrager v. Carry as Doe v. Carry.
The Div. Three justices handling the appeal—Halim Dhanidina, Luis A. Lavin, and Anne H. Egerton—apparently saw no entitlement of a party to litigate anonymously in the Court of Appeal simply by having done so below.
Other panels change actual names to initials even where the parties used their real names in the trial court, and in that and various other instances needlessly treat true identities as classified information.
Below are comments on some decisions in April where the justices, as I see, erred on the side of secrecy.
•Lyell v. Appellate Division of Superior Court, C087782 (not certified for publication). This is the Third District case where the name of defendant in a criminal case was not used.
The opinion, by Justice Elana Duarte, refers to the defendant as “L.Y.”
Come on, now. Linda Denise Yrjolam of Pleasanton was arrested on July 11, 2018, for drunk driving. That is hardly a private matter. She was not booked as “L.Y.”
She was charged under her real name. She appeared for an arraignment on Aug. 6 before San Joaquin Superior Court Judge Richard Vlavianos, and when her case was called, it was not as People v. L.Y.
The upshot of the opinion—one with a curious procedural history (recounted below)—is that Vlavianos erred in not appointing the Public Defender’s Office to represent Yrjolam after she proclaimed inability to pay for a lawyer.
The “secretization” of court proceedings, which occurred in the “L.Y.” case, is a trend—an obnoxious judicial fad. It’s in derogation, in my view, of the public’s right to know what’s going on in the public’s courts, which includes who is doing what in those forums.
Yrjolam, who eventually entered into a plea bargain, would, no doubt, prefer not have the Court of Appeal reveal her identity. But it’s a matter of public record. In committing a crime—“a public offense”—she opened herself up to official proceedings entailing the use of her true name.
For Duarte and her cohorts—Acting Presiding Justice Coleman Blease and Justice Louis Mauro—to treat Yrjolam’s identity as a confidential matter is, I submit, both silly and irresponsible.
•D.D. v. R.C, B284239 (not certified for publication). Last Friday, here in our own bailiwick, Div. One of this district’s Court of Appeal filed its opinion in a case that was so captioned.
Was “D.D.” or “R.C.” a minor? A rape victim? The subject of conservatorship proceedings?
“D.D.”—Daniel W. Dunbar, a trial attorney with Panish Shea & Boyle LLP—and “R.C,” investor R. Lewis Chapman Jr., are feuding neighbors. They reside, with their respective wives, across the street from each other in Palos Verdes Peninsula homes overlooking the ocean.
Dunbar—whose equanimity, in the face of outrageous conduct on the part of Chapman, is praised by the appeals court—was granted a civil harassment restraining order by Los Angeles Superior Court Judge Gary Tanaka. Div. One reversed, in an opinion by Los Angeles Superior Court Judge Gregory J. Weingart, sitting on assignment. The opinion is a ho-hum one, unworthy of note, except for its suppression of identities. It declares that substantial evidence did not support the order.
Presiding Justice Frances Rothschild and Justice Jeffrey Johnson joined in the opinion.
The justices might claim that they were just following the rules in excluding true names. California Rules of Court, rule 8.90, sets forth nine specific categories of persons to whom an appellate court should “consider” protecting. One of those nine categories is “[p]rotected persons in civil harassment proceedings under Code of Civil Procedure section 527.6.”
The persons who are “protected” by restraining orders are, of course, those in whose favor the orders are issued. Dunbar is such a person; so is his wife, Cynthia Lea Dunbar, whose name was added to the order he obtained. Those who are restrained—like R. Lewis Chapman Jr.—are not “protected persons.”
Yet, the names of the Chapmans are obscured in the opinion.
While the Chapmans do not fit into any of the nine explicit categories of those who should be “considered” for protection, there is a tenth category—and it’s broad: “Persons in other circumstances in which personal privacy interests support not using the person’s name.” Taking categories 1-10 together, Rule 8.90 says, in effect: “In the interests of privacy, you should think about eliminating the true names of nine categories of persons—and, well, heck, anyone else you want to.”
The call made by Div. One in concealing the identities of the persons involved was consistent with Rule 8.90. But it was hardly mandated by the rule. The rule merely suggests that justices “consider” anonymity where privacy interests are implicated.
The Chapmans’ names should not have been withheld because no factor emerges in support of doing so. Given the public nature of the courts, the lack of a reason for secrecy necessarily renders secrecy unacceptable.
Notwithstanding Rule 8.90’s catch-all tenth category, the justices, as public servants, are definitionally bound to act in the service of their employers, the public—which has an unquestionable interest in the openness of judicial proceedings. Where jurists hide matters from the public, absent an articulated and well-founded basis for effecting secrecy in order to protect overriding interests of parties or others, this cannot be viewed as other than a betrayal of their inherent duties.
An incidental reason not to hide the identity of R. Lewis Chapman Jr., who has prominence in the financial community, is that the nastiness of his conduct, as described in the opinion, could well be meaningful to persons contemplating doing business with him.
The Dunbars’ identities also should not have been suppressed, although they were beneficiaries of civil harassment restraining orders. The parties litigated in the trial court in their true names; their identities are in the public domain.
Daniel Dunbar, being an attorney, was undoubtedly aware that it has become frequent for parties to litigate as “Does” or using initials. Yet, he brought the action as Dunbar v. Chapman. He did so knowing that his wife’s former substance-abuse problems would be bared in the course of the proceedings given that Chapman’s conduct included spreading misinformation relating to the matter and once exclaiming, as Cynthia Dunbar walked by, “There’s the drug addict.”
To his credit, the lawyer did not seek unwarranted secrecy, and there is no indication in the Court of Appeal docket that either side requested that identities be shielded.
Where a knowing and intelligent party chooses not to seek protection, and courts provide it in the absence of some mandate to do so, it is a matter of judicial paternalism, which is repugnant to traditional notions as to the role of the courts.
•M.L. v. A.G., B283532 (not certified for publication). This April 11 opinion also comes from this district’s Div. One. At least that division is consistent. In a case in which it found a domestic violence restraining order (“DVRO”) to have been based on insufficient evidence, initials of parties were used rather than names.
Johnson wrote the opinion, which Rothschild and Weingart signed.
Marissa Land brought the action in Los Angeles Superior Court in her true name and initially appeared in the Court of Appeal under that name. In a footnote, Johnson said:
“On September 14, 2018, M.L. filed a request that we use initials or pseudonyms in this opinion. We grant the request.”
No reason was given. None is required under Rule 8.90. However, I would think that if a judge at either the trial court or appellate level is going to deny the public knowledge as to the identity of parties, that jurist should feel obliged to set forth some explanation.
Had Johnson done so, he would have been hard pressed to explain why Angel Gonzalez, the person on whom Los Angeles Superior Court Judge Patricia J. Titus imposed a DVRO, was called “A.G.” While Land comes under the category in Rule 8.90 of “protected persons in domestic violence-prevention proceedings,” Gonzales doesn’t.
•Y.M. v. Mitchell, E069623 (not certified for publication). Also on April 11, the Fourth District’s Div. Two issued an opinion in a case in which the issuance of a DVRO was contested. It, unlike this district’s Div. One, realized that persons on whom such orders are imposed are not “protected persons.” It used the name of the appellant, Robin James Mitchell.
In an opinion by Justice Douglas P. Miller, joined in by Presiding Justice Manuel A. Ramirez and Justice Frank J. Menetrez, it affirmed the order.
Mitchell’s wife, Yvette Mitchell, obtained the DVRO. The appeals court’s decision not to name her other than by initials was, under the circumstances, unwarranted. She is identified in Riverside Superior Court proceedings and in a cross-referenced case in the Court of Appeal.
Rule 8.90(b)(1) does counsel that thought be given to granting anonymity to “protected persons in domestic violence-prevention proceedings.” But does that justify concealing the identity of someone whose name appears in public records?
Justices should guard against conferring confidentiality through applying a court rule robotically, as in this case.
•Stennett v. Miller, 2019 S.O.S. 1788, G054989. Jacqueline Stennett brought an action to establish the right of her daughter, a minor at the time the action was filed, to inherit from her father, with whom she had never had any contact. However, by the time the case was decided by the Fourth District’s Div. Three in a 2-1 opinion—against the daughter because there had never been a judicial determination of paternity and the father had not acknowledged her as his daughter—the child was an adult.
Both the majority opinion by Justice Richard M. Aronson, joined in by Acting Presiding Justice William W. Bedsworth, and the dissent by Justice Eileen Moore referred to the daughter, Alexandra Stennett, as “A.S.” Aside from her no longer being a minor, she has been identified in related litigation by her actual name.
(Effrontery is constantly displayed by courts of appeal in referring to adult parties by their first names, the excuse being offered in opinions, if any, that more than one party has the same surname. In this case, both Dickie and Eileen allude to Jacqueline Stennett as “Jackie.” Given that the jurists denominated Alexandra Stennett “A.S.,” and no other person mentioned in the opinion other than Jacqueline Stennett was named “Stennett,” the stock excuse for rudeness was absent.)
•N.T. v. H.T., 2019 S.O.S. 1890, G055885. Here, the Fourth District’s Div. Three, in an opinion initially filed last month and certified for publication on April 22, avoided use of the names of a husband and wife who are estranged. The wife, Nitzia Stevenson Torres, obtained a temporary restraining order against her husband, Henry Torres, which barred interactions and communications; nonetheless, he sent her presents. In writing, he expressed a desire to reconcile; in person, he told of that hope, suggested counseling, and on one occasion, asked for a hug.
The wife sought a DVRO based on her husband’s violations of the TRO; Orange Superior Court Judge Donald F. Gaffney said, in essence, “Phooey—there’s no evidence here of violence,” terming violations of the TRO as “technical.” The appeals court reversed, in an opinion by Justice Richard D. Fybel, declaring that “abuse includes behaviors that were enjoined by a TRO, and is not limited to acts inflicting physical injury.”
Rule 8.90 suggests to justices that anonymity be contemplated as to “protected persons in domestic violence-prevention proceedings.” Although Nitzia Torres was denied a DVRO, it would be a stretch to say she was not a “protected person” within the contemplation of the rule. And arguably, her husband came under the eleventh (and final) category in the rule: “Persons in other circumstances in which use of that person’s full name would defeat the objective of anonymity for a person identified in (1)-(10).”
Assuming that the Torreses do come within the rule, why should that rule not be applied?
It is not binding; there is room for discretion (and, indeed, a court rule could not, constitutionally, direct justices as how to write their opinions, including how to refer to parties and others). The obvious purpose of the rule is to protect a person obtaining a protection order in a superior court who has been battered, sexually abused, otherwise subjected to humiliating indignities.
By contrast, Henry Torres simply pursued, doggedly, efforts to reconcile with his wife. The facts, on their face, do not cry out for protection; they don’t relate to matters any more intimate than those normally contained in opinions in domestic relations cases.
Moreover, the parties’ names were not camouflaged in proceedings in the trial court. Also, the appellant filed her appeal on Jan. 2, 2018 as “Nitzia Stevenson Torres.” Nonetheless, the Orange County-based panel—comprised of Presiding Justice Kathleen E. O’Leary and Justices Richard D. Fybel and Justice Thomas M. Goethals—on May 21, 2018 proclaimed that “on Appellant’s unopposed application to be permitted to use initials in filings is GRANTED.”
•L.G. v. F.R., D074413 (not certified for publication). The Fourth District’s Div. One, on April 10, issued its opinion upholding a third extension of a DVRO obtained by an ex-wife, over the protest of her former spouse that he had, in the most recent period, engaged in no bellicose act.
The opinion did not identify the ex-husband, Frank G. Ray, although he was not a “protected person.”
His ex-wife, Lisa Giacomini, brought the action in her true name in the San Diego Superior Court was identified by name in federal litigation with Ray. Again, no privacy interest can conceivably exist in that which is public.
Justice Terry O’Rourke wrote the opinion; he was joined by Acting Presiding Justice Richard D. Huffman and Justice Gilbert Nares.
•Doe v. Westmont College, 2019 S.O.S. 1907, B287799. The error here in according “John Doe” status to the plaintiff/respondent—if there is error—is not clear-cut. Doe sued based on a two-year suspension as a student stemming from allegations by student Jane Roe that he raped her. Div. Six of this district’s Court of Appeal, in an opinion by Justice Martin Tangeman, affirmed the granting by the Santa Barbara Superior Court of Doe’s petition for a writ of mandate, declaring that a fair hearing was not afforded. Presiding Justice Arthur Gilbert and Justice Steven Z. Perren concurred.
The decision not to identify Roe by her actual name was a no-brainer—although she does not come under Rule 8.90’s category of victims in “criminal proceedings.”
But what about Doe? Represented by Hathaway, who specializes in such cases, he litigated below, from the start, as a “Doe.”
Yet, the fact that his identity has not been unveiled should not be determinative. It remains that he voluntarily entered a public arena—the Santa Barbara Superior Court, and then the Court of Appeal.
That he might have been victimized by false allegations also should not be determinative. Identities of plaintiffs in defamation actions who prevail on appeal are not withheld.
Yes, there are allegations involving sex. However, a defendant who successfully appeals a rape conviction is not referred to as a “Doe.”
Taking all into account, it would seem that Doe was not properly allowed to utilize the public court system under a fake identity.
•People v. Superior Court, Jones RPI, 2019 S.O.S. 1708, D074028. This April 9 opinion from the Fourth District’s Div. One refers not to a party, but to the victims, pseudonymously. Ordinarily, that would be expected. A category of persons whose identities appellate courts should “consider” shielding, under Rule 8.90 are “[v]ictims in criminal proceedings”—which was frequently done for a long while before the rule went into effect on Jan. 1, 2017. (Under Penal Code §293.5, enacted in 1992, a judge may order that an “alleged victim of a sex offense” be referred to as “Jane Doe or John Doe.”)
Yet, in this instance, Acting Presiding Justice Huffman and Justices Nares and Cynthia Aaron displayed utter buffoonery in using initials of two of the four victims. The real party in interest in the case, Bryan Maurice Jones, slayed one of them in 1985 and the other in 1986. Dead people cannot suffer emotional harm.
Moreover, their identities are no secret. The California Supreme Court’s Aug. 26, 2013 opinion upholding Jones’s 1994 conviction uses the names of the murder victims—JoAnn Sweets and Sophia Glover—while identifying as “Maria R.” and “Karen M.” victims of attempted murders. Too, Sweets and Glover were identified in widely disseminated news reports.
The San Diego-based panel blindly applied Rule 8.90(b)(4) under a circumstance where doing so was not sensible.
To deter such folly, Rule 8.90 should be amended to declare a lack of any necessity to refer to parties as “Doe” or “Roe” or by initials where their identities are matters of public record, or have been reported by news media, or have otherwise been widely disclosed.
The 2000 edition of the California Style Manual quotes an advisement from the Supreme Court request to appellate court justices which includes this: “Anonymity…is inappropriate for homicide victims, who are to be identified whenever possible.” Anonymity for such victims remains inappropriate, if not inane; Rule 8.90 should specify that reference “victims” does not include those who were slain.
Instances of courts of appeal avoiding use of parties’ actual names are proliferating.
What next? Referring to parties against whom harmful allegations were made, which were not sustained, by numbers, to conceal their identities?
Where a decision is reversed, should the name of the trial judge be obscured to avoid embarrassment?
What about reinstating anonymous Court of Appeal opinions? Prior to 2003, “By the Court” opinions could be issued without identifying the participating justices.
The trend is an unfortunate one.
FOOTNOTE: In the first case mentioned here—Lyell v. Appellate Division of Superior Court—bizarre procedures were followed both in the trial court and the Court of Appeal.
Why did Vlavianos refuse to appoint the Public Defender’s Office to represent? He had a quirky practice of requiring a defendant who claimed impecuniosity to go see a private lawyer to find out if a fee arrangement could be worked out. If that effort failed, the defendant was required to bring the lawyer’s business card to him at the postponed arraignment to prove an attempt was made.
Yrjolam sought a writ in the San Joaquin Superior Court Appellate Division, which was denied. A writ petition was then filed in the Court of Appeal—but not in the name of the defendant. A non-party to the criminal proceeding—the county’s public defender—was the petitioner.
The writ petition sought to compel the Appellate Division to order that a lawyer be appointed for the defendant. Prior to the Court of Appeal acting on the petition, a lawyer was, in fact, appointed for Yrjolam and she entered into a plea bargain. That would seem to bring the controversy to a close.
Rather than dismissing the petition as moot, however, the Third District issued a writ telling “the trial court”—that is, Vlavianos—to appoint the Public Defender’s Office in the future absent a finding that it was not statutorily required and to cease his “general practice of continuing arraignments to require defendants to contact an attorney and return to court before making an indigency finding.”
So, the Court of Appeal, acting on a writ petition seeking an order to an appellate division, in effect, enjoined a practice of a judge of the Superior Court, who was not a party to proceeding above.
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