Was Judge Klein’s Brief Properly Rejected by the Appellate Division?

Monday, July 30, 2001

Page 9

PERSPECTIVES (Column)

Was Judge Klein’s Brief Properly Rejected by the Appellate Division?

By ROGER M. GRACE

A judge handling an unlawful detainer case wound up being the evicted party.

As I recounted in my last column, Los Angeles Superior Court Judge Brett C. Klein was booted from the Appellate Division when he filed a brief on behalf of his court, which had been named as respondent in a writ petition. Writing for the panel, Judge Patti Jo McKay said in an opinion filed July 20 that Klein had no business filing anything.

My previous focus was on the inappropriateness of the Appellate Division acting in the case when the plaintiff had not been given notice of the writ proceeding and on its wasted effort in resolving a moot issue in an unpublished opinion. The spotlight today is on the correctness of the action in shredding Klein’s brief.

The brief did not seek to justify the judge’s denial of a fee waiver based on defective paperwork, which was the subject of the writ petition. Rather, the brief pointed out to Department 70’s triumvirate that 1.) the plaintiff had not been served with notice of the proceeding, rendering the proceeding an ex parte one for which there was no justification; and 2.) the petitioner had not asked for a hearing on the fee waiver, which she was telling the Appellate Division she should have been afforded. Klein also pointed out in a single sentence that the matter was moot inasmuch as he had, subsequent to the writ petition being filed, ordered a refund of the answer fee paid by the petitioner.

Here’s McKay’s explanation of why Klein’s brief was spurned:

[A] judge is generally required to refrain from participating in a writ proceeding, even where the proceedings, such as an order disqualifying the judge, may give the judge an interest in the outcome. (See Curle v. Superior Court (2001) 24 Cal.4th 1057, 1059 [a judge may not file a writ petition challenging the order disqualifying him from presiding over the case.])

In certain cases, the respondent may have a beneficial interest in the writ proceedings and be allowed to appear and oppose the petition. This is allowed ‘when: (1) the real party in interest did not appear; and (2) ‘the issue involved directly impacted the operations and procedures of the court or potentially imposed financial obligations which would directly affect the court’s operations.’ ” (James G. v. Superior Court (2000) 80 Cal.App.4th 275, 280, citing Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 1018-1019.) Even in those cases, however, it is not the judge who files a response, but county counsel, as the legal representative of the superior court of the county, who files any response. (Gov. Code, §27647; James G., supra, 80 Cal.App.4th at pp. 278-280.) Because there was no basis for Judge Klein to file a response to the petition in this matter, said response is hereby stricken.

Did the Superior Court have standing to file a respondent’s brief in the Appellate Division?

Curle is not relevant authority. There, the Supreme Court held that under Code of Civil Procedure §170.3(d), a “party” may seek a writ to overturn a decision on a motion to disqualify a judge; that a judge is not, for purposes of that statute, a “party” to the underlying proceeding; and that a disqualified judge may not institute a writ proceeding to contest the disqualification. (It disapproved Ng and another case to the extent that they were premised on contrary notions.) The opinion relates solely to the unavailability of appellate review to a disqualified judge.

James G. is not helpful either, and indeed McCay does not rely upon it with respect to the issue of the Superior Court’s standing except to cite its quotation from Ng.

If any case cited by McKay is on point, it’s Ng. That case authorizes an appearance by a court in a writ proceeding where the real party does not file a brief and the issue relates not to disputes over which the parties are sparring in the underlying litigation, but to court operations or procedures. McCullough was absent from the writ proceeding before the Appellate Division — being oblivious to it — and the issue before the appellate court (whether a fee waiver may be denied based on a defect in the paperwork without holding a hearing) could be said to relate to court operations and procedures.

There is, however, a hitch. Klein’s brief did not discuss the merits of the writ petition. It offered no reasoning as to whether the court must institute a hearing that is not requested by the party seeking the fee waiver. Klein, a former research attorney at the Court of Appeal, was accustomed to spotting procedural infirmities to writ petitions being entertained, and simply shared some insights with the judges handling the writ proceeding. Klein did not seek to promote the interests of his court, but rather to instruct the Appellate Division members on what procedures should be utilized by their court. (Under Code of Civil Procedure §1085(b), the Appellate Division is in effect a separate court from the Superior Court, the latter being an “inferior tribunal.”) Accordingly, based on the content of the brief — that is, because it does not relate to the “operations and procedures” of the Superior Court — it could reasonably be concluded that the Ng standard for a judge filing a brief in a reviewing court was not met.

Yet, it does not appear sensible, under the circumstances, for three judges to censor a document containing insights from another judge that could assist them in resolving a case. Is Ng truly applicable?

Klein’s brief was simply not of the sort frowned upon in Ng — that is, a brief which “deals solely with the judge’s justification for his actions.” Such a brief, Justice William Rylaarsdam said in his opinion for the Fourth District’s Div. Three, “does not differ from an attempt by a trial judge to file an amicus curiae brief in a pending appeal relating to the merits of an issue ruled upon by that judge.”

He went on to say:

“A judge’s desire to explain and justify his or her decision to the appellate court is understandable. Trial judges must bear the frustration of having appellants question their judgment and attack their learning in the law as well as the even greater frustration of reading inadequate briefs purporting to defend their decisions. The duty of impartiality and neutrality seals their lips, dries the ink in their pens and denies them access to their word processors; they may not set the record straight; they may not come to the aid of the less than well-informed Court of Appeal. This duty, and the silence it imposes, applies whether an issue is brought to the appellate court by way of appeal, petition for extraordinary writ, or otherwise. Except under the unusual circumstances noted above, the requirement of neutrality prohibits judges from having a stake in the outcome of the appellate decision in ‘their’ cases.”

But Klein did not seek to provide “justification for his actions” or to “set the record straight.”

Moreover, the limitation in Ng on input from a judge whose decision is under review came in the context of a discussion of when it is proper for a judge to assume an “advocacy position.” If Klein had told the Appellate Division why it should hold that he was correct in denying the fee waiver without holding a hearing, he would have been engaged in advocacy. He didn’t. His pointing out impediments to appellate review was more a matter of advice than advocacy.

Too, the “the duty of impartiality and neutrality” may well be compromised where the judge does battle in an appeals court with a writ petitioner who remains a party before that judge in the underlying action. There is no such unseemliness where a judge puts in his two cents worth in connection with a writ proceeding where the underlying action has been settled, as the unlawful detainer action before Klein had been.

Klein received a copy of a Palma notice indicating that the Appellate Division was contemplating the issuance of a peremptory writ in the first in instance. He saw that the plaintiff in the case had not been named a real party in interest and had not been served and the petitioner was complaining of the lack of a hearing in the trial court when no hearing had been requested. The judge responded by telling his colleagues in the Appellate Division, in effect: “Wait a minute. Do you guys really know what you’re doing? I think you’re failing to avert to procedural requirements.”

This is a scenario not contemplated by Ng.

On the one hand, judges of lower courts must adhere to the dictates of higher courts and, if in doubt as to the applicability of higher court precedents, should follow them. The Appellate Division’s purging of Klein’s brief is defensible based on the arguable applicability of Ng. On the other hand, it does appear that Ng is distinguishable.

Aside from relying on Ng, McCay had another reason for giving Klein a rejection slip. It was he who wrote the brief, not someone in the Office of County Counsel. A judge isn’t supposed to write briefs, she said, citing James G.

What that case said was this: “There is no question that pursuant to Government Code section 27647, county counsel may provide legal representation to Superior Court.” That section authorizes representation of the court by the Office of County Counsel upon request. In a footnote, the opinion by Justice Fred Woods disapproved a suggestion in another case that a superior court could file its own return to a writ petition. He remarked: “Although the court did not attempt to do so here, we do not endorse the practice of the lower courts, nor its individual judges appearing before our court in pro. per.”

That one-liner was dictum. Also, the phrase “we do not endorse” falls considerably short of a prohibition.

Woods’ remark was followed by: “(See Ng v. Superior Court, supra, 52 Cal.App.4th 1010, 1021.)” At 1021, the Ng court announced it was disregarding a declaration executed by the trial judge in support of his decision, including such matter as comments on the demeanor of the petitioner. The reasons were: 1.) the prohibition on advocacy precludes a trial judge from offering evidence; 2.) the evidence is new matter which an appellate court is precluded from considering; 3.) Evidence Code §703.5 renders a judge incompetent to testify as to matters occurring in proceedings before that judge.

Neither Woods’ one-liner nor the portion of Ng he cited supports McCay’s notion that only an attorney in the County Counsel’s Office may draft a brief for the Superior Court.

As it happens, the Superior Court seldom utilizes services of that office anymore. Under state trial court funding legislation, the court has to pay the county for representation by its law firm. Sometimes it does that. Sometimes it hires outside counsel. Usually it relies on Bennett, a former deputy county counsel whom the court hired as its “court counsel.”

While the opinion says the court may only appear if it’s represented by the Office of County Counsel, it was Bennett to whom Appellate Division sent the Palma notice and the copy of the judgment, not the Office of County Counsel. It thus impliedly recognizes the court’s entitlement to use legal services other than those of a member of that county office. If the court can have an in-house lawyer or an outside lawyer draft a brief for it, what reason is there that a judge — presumably someone with some legal skills — cannot do the job?

Woods’ off-hand dictum did not supply an adequate basis for tossing out a brief simply because it was penned by a judge.

By the way, Bennett tells me that in some other counties, which do not have the “wealth of services” that are available to the Superior Court here, it has been common practice for judges to draft their own respondents’ briefs.

SPEAKING OF BENNETT... — The court counsel advises that he has, by letter, asked the state Supreme Court to depublish a portion of the Sixth District’s July 5 opinion in Grant v. Superior Court, 01 Metropolitan News-Enterprise S.O.S. 3241, or to grant a hearing in the case. Under that decision, Bennett says, the judge whose disqualification was sought “couldn’t even respond” to the writ petition. “I believe it misapplies Curle,” he comments.

I think he’s right.

In footnote 2, Acting Presiding Justice Eugene Premo says that it “follows” not from Curle that “a respondent court lacks standing to defend itself in a proceeding for writ review of a disqualification order” That proposition does not “follow” from Curle. In Curle, Chief Justice Ronald George wrote that a judge who has been disqualified may not seek a writ because, under the relevant statute, a writ may be sought only by a party and “party,” as contemplated by that statute, means a party in the underlying proceeding. The opinion did not say nor intimate that once such a party in the underlying proceeding brings a writ action in the Court of Appeal, the Superior Court is not a party in that proceeding, entitled to be heard.