Tuesday, August 7, 2001
Page 7
PERSPECTIVES (Column)
I Still Say the Appellate Division Botched the Job
By ROGER M. GRACE
Deputy Public Defender John Hamilton Scott proves one thing by his letter to the editor on the page to the left: he possesses exceptional writing skills. Though his letter is reasoned and thoughtful, it still seems to me that the Appellate Division flubbed.
The Appellate Division’s major error, as I see it, is one not addressed by Scott. It utilized its time and resources to decide a moot issue, doing so in an unpublished opinion. Yet, the only justification for addressing moot issues is to prevent the same sort of error from being committed in future cases. That can’t be accomplished in an unpublished, nonprecedential opinion.
To put this discussion in perspective: the issue presented to the Appellate Division was whether a judge may deny a fee waiver based on defective paperwork, without holding a hearing. The Appellate Department decided that a hearing was mandatory, requested or not, before denying such an application. It went beyond that and found that the fee waiver in issue should have been granted to the defendant, sued in an unlawful detainer case. Nonetheless, the Appellate Division could not issue a writ ordering that the respondent Superior Court grant the application because, after receiving a copy of the defendant/petitioner’s brief, Los Angeles Superior Court Judge Brett Klein had gone ahead and ordered a return of the answer fee, sua sponte.
The Appellate Division, for whatever reason, decided the moot issue in Simpson v. Limited Civil Jurisdiction Court, BS069127, but without any benefit it might have derived from reviewing the respondent’s brief, drafted for the Superior Court by Klein. The judges of Department 70 struck the brief on the ground that a court may file a brief under only limited circumstances, and this was not one of them, and because “[b]y custom, the real party in interest (rather than the respondent) is expected to respond to the petition.” What the author of the opinion, Judge Patti Jo McKay, nowhere acknowledged was that the real party could not have responded because no real party had been named, let alone served. The plaintiff in the case had no knowledge of the writ proceeding.
My first column on the case, on July 27, dealt with “silliness” and “secrecy”—the silliness being the determination of a moot issue in an unpublished opinion, and the secrecy being the hiding of the existence of the writ proceeding from the plaintiff. The second column, on July 30, dealt with the rejection of the respondent court’s brief. It acknowledged that decisional law could reasonably be viewed as precluding the Superior Court from having a say, but suggested that the cases denying an audience are predicated on considerations that were not present in Simpson.
Scott takes the position that the defendant’s petition for a writ of mandate was of no concern to the plaintiff, so that it was unnecessary to serve her with a copy. He asserts that the respondent Superior Court was foreclosed from filing a brief (absent the reviewing court granting it amicus status which, he asserts, would not have been warranted). In other words, opposition was precluded, in his assessment.
With respect to notice, our disagreement appears to be over the meaning of Los Angeles Superior Court Rules of Court, rule 11.10(d)(3). That rule says that writ petitions filed in the Appellate Division “must be served on all parties and the Presiding Judge of the superior court before filing.” Scott interprets the words “all parties” to mean all “parties in the writ petition,” rather than all parties to the underlying proceeding.
I don’t think his view withstands scrutiny. It cannot be doubted that where a writ petition challenges the action of a Los Angeles Superior Court judge, the Los Angeles Superior Court must be named as the respondent. Thus, the court is a party to the writ proceeding. While it is a party in the proceeding in the reviewing court, it is most certainly not a party in the underlying proceeding. (See Curle v. Superior Court (2001) 24 Cal.4th 1057, 1065-66.) Rule 11.10(d)(3) requires service on all parties and also on the Superior Court, by serving the presiding judge. If the rule had reference to serving the parties to the writ proceeding, it would not treat the Superior Court as an entity separate and distinct from the parties. It would have been worded along these lines:
“The petition must be served on all parties before filing. The Superior Court shall be served by service upon the Presiding Judge.”
In light of the phraseology of the section, it is clear that it requires service on 1.) parties to the underlying proceeding, and 2.) the Superior Court. There was no service by the defendant in the case in Klein’s courtroom (McCullough v. Simpson) on the plaintiff or on the co-defendant. That was a procedural impediment to review.
Indeed, if the rule read as Scott reads it, one party in a trial court proceeding could proclaim the opposing party to be disinterested in the outcome of a writ proceeding, and not serve it with notice of the proceeding, then stuff its brief with subtle but slanted characterizations of the underlying proceeding. Impressions could become imbedded in the craniums of the appellate jurists, brought to the conscious fore at a later juncture when the appeal was before the court.
It violates common notions of fair play to allow one party in a trial court proceeding to litigate issues in a higher court with the other party oblivious to the existence of the proceeding. Indeed, in Simpson, the plaintiff did not know of the writ proceeding until after the opinion had been issued, and gained knowledge of it only by chance. I can’t imagine that the local rule was designed to permit a party to engage in communications with a higher court that are secret from the adversary (or even co-parties) in the trial court.
With respect to Klein filing a brief, I stand by my analysis in the July 30 column. Ng v. Superior Court (1997) 52 Cal.App.4th 1010 can reasonably be read to foreclose a respondent superior court from filing a brief where it is not defending its own “operations and procedures.” On the other hand, Ng can be read as viewing a brief in defense of “operations and procedures” as one in contrast to a brief which “deals solely with the judge’s justification for his actions,” the former being permitted and the latter not. Klein neither defended operations and procedures of his court nor did he argue that he was correct in denying the fee waiver; rather, he questioned whether the Appellate Division should entertain the writ petition in light of the lack of service of it on the plaintiff. It is not clear under the state of the law whether the brief was of a proscribed sort, and I personally don’t see any policy considerations supporting a barring of it under all circumstances that were present.
As to Scott’s suggestion that the Superior Court might have been accorded amicus curiae standing, I would submit that such an approach would be curious. The Superior Court was a party to the writ proceeding; it was the respondent. The status of a party and an amicus curiae are mutually exclusive. Either the Superior Court, as the respondent, may point out to the reviewing court a procedural infirmity to review or it may not be heard. To say that the Superior Court, in its capacity as respondent, must be silent, but may be transmogrified by a wave of the wand of the reviewing court into an amicus that may speak, strikes me as ludicrous.
Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309 and Grant v. Superior Court, 01 Metropolitan News-Enterprise S.O.S. 3241 did adopt that approach. Both of those decisions, from the Sixth District, were predicated on the notion that a judge whose disqualification is sought by a writ petition may not respond. Zilog noted that the issue was before the California Supreme Court in Curle; Curle was decided the following day and did not touch on the issue of a judge responding to a writ petition. Rather, it said that a judge may not institute a writ petition challenging a disqualification. Nonetheless, Zilog was not modified to omit its reference to the issue being before the high court or that Curle would determine the issue of a court’s standing to respond.
Then, on July 5, the Sixth District decided Grant, and purported to rely upon Curle in support of its proposition that a judge whose disqualification is sought in a writ proceeding may not be heard in that proceeding. Curle does not stand for any such proposition.
The Curle court repudiated Ng v. Superior Court (1997) 52 Cal.App.4th 1010 only to the extent it was “inconsistent with our conclusion herein.” The Ng court had proclaimed that “[t]he judge’s participation in the appellate process concerning such issues [of disqualification] is therefore also appropriate.” That statement was inconsistent with the holding of Curle to the extent that it provided blanket authorization of participation in the appellate process, and was not limited to the judge or the court participating as a respondent.
Justice Joyce Kennard, in her dissenting opinion in Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal.4th 1126, pointed to various cases where a Superior Court has been the only party opposing a writ petition:
Press-Enterprise Co. v. Superior Court of California (1984) 464 U.S. 501 [magistrate’s power to close preliminary hearing]; Townsend v. Superior Court (1975) 15 Cal.3d 774 [court’s power to continue case when defense counsel has a calendar conflict]; Shipp v. Superior Court (1992) 5 Cal.App.4th 147 [whether family court assignment under local court policy is an “all purpose” assignment under Code Civ.Proc., § 170.6]; Flores v. Superior Court (1991) 226 Cal.App.3d 797 [effect of policy memorandum designating certain courts as “direct calendar courts” on challenges under Code Civ.Proc., §170.6]; Huffman v. Superior Court (1990) 219 Cal.App.3d 1480 [court’s obligation to provide indigent defendant with trial transcript after first trial ends in hung jury].)
Circumstances under which a trial court may file a brief in a reviewing court are simply not so limited as the Appellate Division or Scott suppose.
And the Sixth District’s notion that a court might be able to say something as an amicus curiae which it may not say in its role as the respondent is absurd.
‘COLUMN,’ NOT ‘EDITORIAL’—Scott purports to rebut “editorials” in this newspaper. No editorials on the subject he discusses appeared. His rebuttal pertains to statements in this column. I point this out not to deride Scott on a small point but because the distinction is frequently not perceived. I’m addressing in a published opinion piece an issue likely to recur, notwithstanding that an importance might not attach to it.
An editorial is an unbylined expression of opinion by the newspaper, in the first person plural, written in a more formal style than that used by most columnists. For example, where a nameless editorial writer would say, on behalf of the newspaper, “We find that view unsupportable,” a columnist would be free to exclaim, on behalf of himself or herself alone, “That’s blarney!”
The fact that a column is written by the newspaper’s editor does not render that column an “editorial.” By the same token, an “editorial” is not necessarily penned by the editor. As a young pup reporter for the Herald-Examiner, I was a far cry from the editor, yet I did bang out a few editorials. In other words, the word “editorial” should not be associated with the person who serves as “editor.” (Just to really make it confusing, a newspaper’s “editorial matter” includes news, features, and commentary—the journalistic product—as opposed to advertising and such.)
All of this is said from the perception of a traditional (perhaps behind-the-times) journalist. I recently saw an editorial in the Los Angeles Times, now owned by the Chicago Tribune, on Bozo the Clown leaving the airways. Bozo, once a national kiddies’ icon, appeared, in the end, only on a Chicago station, albeit a cable “superstation.” The purported editorial was a feature story, better suited for the television page. It didn’t strike me as an editorial. So much for traditional journalistic notions.
CLOSING A LOOPHOLE—In my columns of March 27 and 29, I pointed to a loophole in the City of Los Angeles’ laws regulating lobbyist activities. There is nothing limiting free legal services—or any other types of services—being personally provided by a lobbyist to a member of the City Council or other city official. One lobbyist/attorney, Neil Papiano, has been known to confer legal services, gratis, on City Councilman Hal Bernson.
I’m heartened to see that in a proposed ordinance, drafted by the City Attorney’s Office at the behest of the Ethics Commission, there is a prohibition on an elected city official acting on a matter if, in the past 12 months, a lobbyist for one side has had a “business relationship” with the official. Such a relationship would include one where “[a]n elective City officer” garnered benefits “aggregating more than $1,000, including, but not limited to, free legal or other services.”
The commission is scheduled to decide tomorrow whether to forward the proposed ordinance to the City Council with the request that it be enacted.
Copyright 2001, Metropolitan News Company