Appellate judge Alex Kozinski addresses the dangers of unsettled science in the courtroom

Or, as the headline over Judge Kozinski’s opinion piece in today’s Wall Street Journal calls it, “voodoo science.” And what this justice on the Ninth Circuit Court of Appeals (a federal appellate court) has to say has nothing to do with global warming (at least not directly).

Writing on a report to be released by the Obama administration today from the President’s Council of Advisors on Science and Technology (PCAST), Judge Kozinski calls for lifting, or at lease easing, restrictions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on federal court review of state court criminal judgments, because the report finds that many of the scientific methods used to convict criminal defendants, including long-standing methods like fingerprint identification, are – in the judge’s words – “flawed, some irredeemably so.” This is scary stuff for everyone, not just those in the criminal justice system:

Only the most basic form of DNA analysis is scientifically reliable, the study indicates. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms: Bitemark analysis is about as reliable as astrology. Yet many unfortunates languish in prison based on such bad science.

Even methods valid in principle can be unreliable in practice. Forensic scientists, who are often members of the prosecution team, sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.

Judge Kozinski asserts flaws in analysis of fingerprints, bitemarks, firearms, footwear, hair, and “char patterns.” The last of these is used to determine whether a fire is the result of arson, and, according to Judge Kozinski has been shown by studies to have “absolutely no scientific basis.” Judge Kozinski notes that at least one person has been executed following a conviction based on char pattern analysis.

If you initially recoil from Judge Kozinski’s call to amend the AEDPA, consider this harrowing fact cited by the judge: of more than 7,600 convictions (including dozens of capital cases) involving FBI lab examiners that were impugned by a 1997 Justice Department inspector-general report, only 17  had been reviewed by 2014, seventeen years later. Judge Kozinski concludes:

Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.

Judge Kozinski has a knack for challenging political ideologies of all stripes, and I think his highlight of the PCAST report (and, of course, the report itself) could prove challenging, and not just on the issue of criminal justice reform. “Law and Order” types who claim the science on climate change is unsettled may have a hard time rejecting Judge Kozinski’s call for reform, while full-throated advocates of the judge’s suggested reforms who also campaign on legislation to combat climate change may have to admit that maybe the science on climate change is not as settled as they say it is. In short, the report profiled by Judge Kozinski should get a lot of people thinking.

UPDATE: It occurred to me immediately after publishing this post that the challenge to politicians would be even greater if the AEDPA had originally passed with broad bipartisan support, so I looked up the vote and . . . yes, this is going to be a problem for a lot of politicians: the votes for the AEDPA, which was passed in identical form in both houses of Congress, was 91-8 in the Senate and 293-133 in the House of Representatives.

Construction defect case demonstrates a “two-fer” on grounds for obtaining review by petition for writ of mandamus

I frequently get calls from prospective clients who are “rarin’ to go” on a writ petition to challenge a trial court ruling that has them outraged but is not immediately appealable. That “rarin’ to go” attitude usually does not last beyond the point where I tell them that more than 90% of writ petitions are summarily dismissed without the petitioner ever being heard on the merits. That news usually significantly diminishes the will to petition the Court of Appeal, even as it intensifies the prospect’s outrage, as the prospect feels aggrieved not just by the trial court ruling but also by the fact that the odds of any recourse are so slim.

That’s because writ review in the Court of Appeal is discretionary. Even before convincing the appellate court the trial court erred, the petitioner must convince the appellate court that its petition should be heard on the merits. One can do this by demonstrating that an appeal after final judgment would afford inadequate relief (Code Civ. Proc., § 1086), that the ruling threatens disclosure of privileged documents (or otherwise rings a bell that cannot be unrung), or that the issue presented is one of first impression on which the trial courts require guidance or which is important to a state industry.

In McMillin Albany LLC v. Superior Court, case no. F069370 (5th Dist., Aug. 27, 2015), the Court of Appeal spells out plainly two reasons it granted review in a construction defect case in which homeowners sued their contractor. The contractor sought a stay of the action until the plaintiffs complied with the prelitigation procedures of the Right to Repair Act (the “Act,” Civ. Code, §§ 895 et seq.), which requires the plaintiffs to “give notice of the claimed defects to the builder and engage in a nonadversarial prelitigation procedure, which affords the builder an opportunity to attempt to repair the defects.” Plaintiffs broke off negotiations regarding a stay, dismissed their statutory cause of action under the Act, and asserted that they were not obligated to comply with the prelitigation procedures of the Act to pursue their remaining common law causes of action. The contractor moved for a stay of proceedings pending compliance with the prelitigation procedures and, when the trial court denied it, petitioned the Court of Appeal for a writ of mandate directing the trial court to vacate its ruling and grant the motion for a stay.

Before holding that the plaintiffs were still required to comply with the Act’s prelitigation procedures despite dismissing their only cause of action asserted under the Act, the court gave a very clear statement of why it granted review on the merits. First, the contractor had “no plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc., § 1086.) The court points out that if the contractor were forced to wait for a final judgment to challenge the ruling, it would lose the benefits of any stay it was entitled to pending compliance with prelitigation procedures, even if it prevailed on appeal. Second, the issue presented could escape review entirely if not heard in a writ proceeding, despite being “an issue of first impression, which is of interest to builders, home buyers, their attorneys, and others.” Though the court did not mention the fact, two building trade associations submitted Amicus briefs on behalf of the contractor, demonstrating the importance of the issue to a major industry.

Kudos to the court for being so straightforward in explaining why it reviewed the petition on the merits. Too often, writ opinions are ambiguous on the point.

Can your trial judge give you a boost toward getting appellate review of a non-appealable order?

In theory, at least, the answer is yes, in some circumstances, by certifying the non-appealable order pursuant to Code of Civil Procedure section 166.1. Yesterday’s opinion in Audio Visual Services Group, Inc. v. Superior Court, case no. B256266 (2d Dist., Jan. 22, 2015) is a reminder that this tool for obtaining early appellate review is at the disposal of parties aggrieved by a non-appealable order and reluctant to petition for writ relief because of the generally long odds against having a writ petition heard on the merits.

Section 166.1 provides:

Upon the written request of any party or his or her counsel, or at the judge’s discretion, a judge may indicate in any interlocutory order a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation. Neither the denial of a request for, nor the objection of another party or counsel to, such a commentary in the interlocutory order, may be grounds for a writ or appeal.

Audio Visual Services Group cites Lauermann v. Superior Court (2005) 127 Cal.App.4th 1327, 1330, fn. 6: “The intent is evidently to encourage the appellate court to review the issue on the merits if the losing party files a petition for extraordinary relief.”

Why do I qualify my answer to the the question posed in the title of this post? It is because I wonder how often such certifications actually convince the appellate court to review a petition on the merits when it would not have done so otherwise. After all, every writ petition tries to convince the court that the particular circumstances are “special” enough to warrant appellate review, frequently citing the same factors stated in section 166.1 (particularly when it comes to orders overruling demurrers or denying summary judgment or summary adjudication).

So, does the concurrence of the trial judge offer any real assistance? It is a question I will pose in future discussions with appellate justices. But until then, my approach is that it sure can’t hurt.

If you think your case has been helped or hurt by a section 166.1 certification, let me know in a comment to this post.

Update: AAAArrrggghhh! I cannot get comments opened up in WordPress at the moment. No matter how many times I change the setting, comments remain closed. But I would still like to hear from you if you have experience with section 166.1 influencing your case. Email me at I will update the post, as appropriate, to reflect your experience.

Labor Commissioner’s Superior Court action pulls the rug out from under an employer’s writ petition

The recent decision in American Corporate Security, Inc. v. Labor Commissioner, case no. C070504 (3d Dist. Sept. 10, 2013, published Sept. 27, 2013) is an important demonstration of one of the obstacles to writ review of discriminatory discharge decisions of the Labor Commissioner under Labor Code section 98.7, subdivision (e)..

When an employer seeks writ review of such a decision, the employer must show that it has “no other plain, speedy and adequate remedy.” That’s what is clearly depicted on the Labor Law Compliance Center federal labor posters distributed all over the country. This is what ACS alleged, having exhausted its route of administrative appeal (the Acting Director of the Department of Industrial Relations had already upheld the decision). But while the writ petition was pending, the Commissioner filed a Sacramento Superior Court action under Labor Code section 98.7, subdivision (c) to enforce her determination. The Commissioner then demurred to the writ petition, arguing that ACS had a “plain speedy and adequate remedy” because it could assert the same arguments it was making in the writ proceedings as affirmative defenses in the Sacramento action. The trial court sustained the demurrer without leave to amend, and ACS appealed.

The Court of Appeal affirmed, rejecting arguments that the Sacramento action did not offer ACS a de novo procedure. The Labor Commissioner’s suit to enforce her determination is “by its very nature a de novo procedure.” It found no barrier to ACS raising its arguments as affirmative defenses to the Commissioner’s complaint, and noted that ACS had indeed pleaded those affirmative defenses.

BACKGROUND: ACS’s defenses included procedural ones. Though the labor Code required the Commissioner to make a determination within 60 days of the the employee’s complaint, the Commissioner did not issue her initial decision in this case until three years after the employee filed his complaint. During that time, one of ACS’s exculpatory witnesses had died and another had moved away, and the Commissioner’s determination that there was a Labor Code violation relied in part on ACS’s failure to provide its principal witness during the investigation.

“Octa-Mom” wins one in court

“Octa-mom” Nadya Suleman became an object of derision when, after fertility-treatment-induced birth to octuplets, people learned she was a cash-strapped single mother who already had six children at home. But it’s her adversary that comes into ridicule in Friday’s decision in Suleman v. Superior Court , case no. G042509 (4th Dist. Jan. 8, 2010).

Paul Peterson filed a petition to appoint a guardian to handle financial affairs for the octuplets. (Peterson asserted that his non-profit organization wanted to ensure that financial compensation received from photos or video of the octuplets was preserved for their majority, which explains why no guardianship was sought for the remaining children.) Suleman moved to dismiss, and petitioned for a writ of mandate after the trial court denied her motion. As unsympathetic a person as Suleman may have been in the press, Peterson looks pretty bad, too:

This is an unprecedented, meritless effort by a stranger to a family to seek appointment of a guardian of the estates of the minor children. The petition?s allegations are insufficient to infringe on a parent?s civil rights or to rebut the presumption under California law that a parent is competent to manage the finances of his or her children. There is nothing in the petition that shows that the best interests of the children in the management of their finances are not being served by Suleman.

I always liked the joke “It’s on the internet, so it must be true!” Peterson learns that a court petition is not the time to try to take that whimsical expression seriously:

What information do we have before us? Petersen is not a relative under section 1510, subdivision (a). Petersen has never met and never had any contact with Suleman, her children, or any member of her family. All of the information presented in the petition for appointment of a guardian has come from television or the Internet. Petersen has provided no documentary evidence (much less admissible evidence) that raises a reasonable inference of wrongdoing. The information provided can be summed up as follows: Suleman and her children have appeared on television and the Internet, presumably in exchange for money. No evidence of financial mismanagement on the part of Suleman is offered. Petersen admits he does not know whether Suleman has taken the appropriate steps to ensure that 15 percent of each child?s portion of any earnings has been placed into a [statutorily mandated] Coogan Trust Account.

(My emphasis, footnote omitted.) Not only does Suleman get the guardianship petition dismissed, she also succeeds in stopping an investigation ordered by the trial court into her family’s finances.

The average person following this on the news probably wrote off Suleman’s chances of prevailing. Lawyers not paying close attention may also have rolled their eyes, in light of the overwhelming odds against having a writ petition heard on the merits, let alone winning. However, Suleman presented a statutory interpretation issue of first impression of great importance — who has standing as “another person on behalf of the minor” under Probate Code section 1510, subdivision (a) to bring a guardianship petition — that not only caught the court’s eye, but actually resulted in a win.

Got a stay? Challenge the judge anyway!

Under Code of Civil Procedure 170.3, subdivision (c), a party may apply to disqualify the trial judge for cause, but must submit the statement of objection “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.”  In Tri Counties Bank v. Superior Court (Amaya-Guenon), case no. F055084 (5th Dist. Oct. 28, 2008), Tri Counties tried to convince the court of appeal that its seven-month delay met the “earliest practical opportunity standard” under the circumstances of the case.  No dice.  And in rejecting that contention, the court of appeal makes an interesting exception to a stay of proceedings in the trial court.

Tri Counties asserted that the the judge should be disqualified for conducting an independent investigation into a factual issue relevant to class certification.  It learned of the investigation from the trial court’s tentative ruling in the class certification motion and, in a supplemental memorandum, urged it as a ground to deny certification.  When the trial court certified the class, Tri Counties sought appellate review of the certification order by petitioning for a writ of mandate, citing the improper investigation as a ground to grant the petition, but did not seek the trial judge’s disualification.  Only after that petition was denied did Tri Counties submit its 170.3 statement of objection, which the trial court struck as untimely.  Tri Counties then filed a writ petition challenging that order.

Tri Counties contended that the stay issued in connection with the first writ petition prevented it from filing its statement of objection until the conclusion of that proceeding.  The court notes, however, that the stay did not take effect until more than three moths after Tri Counties became aware of the improper investigation, leaving it plenty of time to challenge the judge.

The second reason the court gave was more interesting.  It holds that proceedings regarding the qualification of a judge are distinct from the ordinary proceedings, and the stay affects only the latter:

Second, although unnecessary to our conclusion that the statement of objection was untimely, it is our view that petitioner could have filed a statement of objection even while the stay was in effect.  Our general stay of proceedings was obviously directed to the underlying proceedings between the parties to the action (i.e., to the litigation itself), not to questions of the judge’s qualification to preside over those proceedings.  A judge’s qualification to preside as judge in a particular case is foundational to, and hence distinct from, the ordinary proceedings between the parties that would be tried or heard by the judge.  (See § 170.5, subd. (f).)  Because of this basic distinction between a judge’s qualification and the underlying litigation, we do not believe that our stay could reasonably be understood as barring petitioner from promptly filing a statement of objection in the trial court.  We note further that disqualification of the trial judge was not raised in the writ of mandate petition challenging the class certification order, thus the filing of a statement of objection to pursue disqualification would not have interfered with or affected our appellate review of that order.

This is an interesting and important distinction.  It’s also quite interesting that the court went out of its way to discuss it, since it was unnecessary once it found Tri Counties had delayed too long even before the stay went into effect.

An Important Discovery Ruling Overcomes a Deferential Standard of Review

For a prospective appellant (or, as in the case profiled here, the prospective writ petitioner), the “abuse of discretion” standard of review can be daunting, and may even convince the party that the pursuit of an appeal or writ is not worthwhile. Not only does it set a high bar for reversal, but it can be very difficult to define within the circumstances of a case. (I’ve written before about the somewhat hazy nature of the “abuse of discretion” standard of review.)

Against this backdrop, Alch v. Superior Court, case no. B203726 (2d Dist. Aug 14, 2008) presents a very interesting discussion of the standard as it introduces its decision reversing the trial court’s refusal to allow discovery (which is not, by the way, immediately appealable, and thus is found in this writ decision).

First, the backdrop of the case:

Television writers filed class action lawsuits against studios, networks, production companies and talent agencies, asserting an industry-wide pattern and practice of age discrimination. The writers served subpoenas on third parties, including the Writers Guild of America, seeking data on Writers Guild members from which they could prepare a statistical analysis to support their claims of age discrimination. A privacy notice was sent to 47,000 Writers Guild members, advising them of their right to object to disclosure of personal information on privacy grounds. Some 7,700 individuals filed objections. The writers moved to overrule the objections. The trial court sustained the objections in their entirety. The writers sought a writ directing the trial court to vacate its order and allow access to certain of the requested information, arguing the information was critical to proving their claims and privacy concerns were minimal. We grant the writ petition.

Before even reaching its analysis, the court of appeal explains why it is able to reverse despite the formidable obstacle usually presented by the abuse of discretion standard applicable to review of orders denying discovery:

We are well aware that a reviewing court may not substitute its opinion for that of the trial court if there is a basis, supported by the evidence, for the trial court’s ruling, and that we may set aside an order denying discovery only if there was no legal justification for the order. (Tien v. Superior Court (2006) 139 Cal.App.4th 528, 535.) We also recognize that the trial court was faced, to some extent, with a moving target: the information initially subpoenaed was more comprehensive – and considerably more sensitive on the privacy scale – than the information the writers requested in their motion to overrule the objections, and the latter, too, was more inclusive than the information ultimately sought when the writers asked for reconsideration. These differences, however, highlight the error in the trial court’s analysis. It used a broad brush to deny the writers access to all data about the objectors out of hand, and wholly failed to consider whether a more nuanced approach to the different categories of data would satisfy the balance that must be struck between privacy interests and a litigant’s need for discovery. (See Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 658 (Valley Bank) [considerations which will affect the exercise of the trial court’s discretion in evaluating privacy claims include the “‘ability of the court to make an alternative order which may grant partial disclosure’”; where possible, “‘courts should impose partial limitations rather than outright denial of discovery’”].)

In short, while the trial court purported to weigh the objectors’ privacy rights against the public interest in pursuing the litigation, it failed to follow the dictates of Valley Bank in doing so. In addition to failing to analyze the different categories of data requested, the court gave short shrift to “the public interest in pursuing [the] litigation.” Indeed, it erroneously stated that the writers, in their brief, had indicated “that they may still be able to put together a meaningful statistical study based upon information from non-objectors.” On the contrary, the writers submitted evidence that no meaningful statistical study could take place if data from the objectors were omitted from it. Under these circumstances, we can reach no other conclusion than that the trial court’s orders denying access to any and all data from the objectors were without legal justification.

(Footnotes omitted.)

I suspect, however, that few litigants will be able to take advantage of Alch in the Court of Appeal because the only immediate route for review of discovery orders is via writ petition. The odds are greater than 9 in 10 that your writ petition will be denied summarily without reaching the merits.

The real value of Alch will be to trial attorneys trying to convince the trial court in the first instance that denial of discovery would be an abuse of discretion. Because such orders are not immediately appealable, there has always been a dearth of appellate discovery rulings for trial lawyers to cite when arguing a motion to compel or a motion for protective order. Alch’s application of Valley Bank may lead to greater uniformity in trial court decisions, or at least greater attention being paid to the “nuance” of the scope of information sought.

A Habeas Class Action

The Prison Law Office, appointed to represent a formerly pro per habeas petitioner who contended the parole board was late in hearing his case, decided to go for a brass ring by filing a class action habeas petition on behalf of all prisoners similarly situated. And they got it . . . at the trial level. Here”s the succinct summary from the opinion in In re Inez Tuto Lugo, case no. A114111 (1st Dist. July 21, 2008):

The proceeding giving rise to these consolidated appeals began simply enough with a habeas corpus petition filed by a prisoner who claimed his parole suitability hearing had not been conducted within the time specified in the Penal Code.  From that modest beginning, the proceeding transmogrified into something unprecedented under California law—a habeas class action on behalf of parole-eligible life prisoners in which the trial court has assumed a role as overseer of the Board of Parole Hearings (Board) on a range of matters far afield of the simple complaint that motivated the original petitioner to seek relief.

On appeal, the Board claims the trial court erred by improperly limiting the Board’s inherent discretion and requiring the Board to state “a significant change in circumstances” justifying a decision to deny parole for more than one year following a prior one-year parole denial. The Board further contends the trial court erred by requiring it to provide inmates with transcripts of their parole hearings within 30 days of the hearing date or face sanctions of $10 per day for each delayed transcript. Finally, the Board claims the trial court abused its discretion when it chose to multiply the fees awarded to class counsel by a factor of 1.5.

The court holds that the order requiring the board not to deny further parole hearings for more than a year absent exceptional circumstances is an unlawful restriction on the Board’s discretion.  It reverses the order requiring the Board to provide transcripts because the question was never properly before the trial court.

I have to admire the tactic of asserting the first-ever habeas class action in California, even though it didn’t work out in the end . . . for the class members, anyway.  The fee award is affirmed.

Successive or Amended Habeas Petition?

Sometimes, it’s nice to be pro se. I’m not sure the pro se habeas petitioner in Woods v. Carey, case no. 05-55302 (May 13, 2008) would have received the same relief if represented by counsel when he filed a second habeas petition under 28 U.S.C. § 2254 while his first was pending in the district court. Both petitions asserted deprivation of rights in connection with his parole eligibility and procedures, and the district court dismissed the second petition as an impermissible “successive” petition. The court of appeals reverses with instructions to contstrue the later petition as a motion for leave to amend the original petition.

The Ninth first lays out the statutory scheme applicable to federal habeas petitions by state prisoners:

“Generally, a new petition is ‘second or successive’ if it raises claims that were or could have been adjudicated on their merits in an earlier petition.” Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001). The Antiterrorism and Effective Death Penalty Act (“AEDPA”) implemented a gatekeeper function, requiring that successive § 2254 petitions be dismissed unless they meet one of the exceptions outlined in 28 U.S.C. § 2244(b)(2). Under that provision, a successive application is permissible only if it rests on a new rule of constitutional law, facts that were previously unavailable, or facts that would be sufficient to show constitutional error in the petitioner’s conviction. 28 U.S.C. § 2244(b)(2). Even if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek authorization from the court of appeals before filing his new petition with the district court. 28 U.S.C. § 2244(b)(3).

Woods never obtained authorization for the second petition, but argued that the Ninth should adopt the rule in the Second Circuit, which construes subsequent petitions filed while one or more are still pending as motions for leave to amend the original petition. The Second adopted the rule in part because of the “tension between the liberal amendment policy embodied in Fed. R. Civ. P. 15 . . . and the AEDPA’s restrictions on bringing successive collateral attacks to criminal conviction.” The Second reconciled that tension in favor of treating the later petition as a motion to amend — even where the earlier petitions were on appeal when the latest was filed — because it saw the risk of abuse as minimal, since amendment is subject to the district court’s discretion, putting it in a position to thwart abusive tactics.

The Ninth finds this rationale particularly persuasive as to pro se petitioners:

The Second Circuit’s logic applies with special force in the context of pro se litigants. “A document filed pro se is ‘to be liberally construed,’ and a ‘pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’ ” [Citations.]. If Woods had the benefit of counsel at the time he filed the instant petition, that counsel certainly would have filed the 2004 claims as an amendment to the 2003 petition. Accordingly, we follow the persuasive reasoning of the Second Circuit[.]

(Emphasis added.)

This explanation leaves open the possibility that the Ninth might not be so generous in cases of represented petitioners, though I think it should be (and I am betting that the Second Circuit petitioners were represented, which would also support similar treatment for represented petitioners). The tension between liberality of amendment and the restrictions in the AEDPA on successive petitiones exists regardless of whether the petitioner is represented or not. Still, I hope the court is correct that attorneys will “certainly” file additional claims as amendments, rather than risk exploitation of the apparent loophole left by the Ninth’s logic in Woods.

Surprised by Jurisdiction

It’s hard not to be a pessimist when filing a petition for writ of mandate.  Getting past a summary denial is always tough.  But it’s pretty easy In re Copley Press, case no. 07-72143 (9th Cir. Mar. 4, 2008), where the Ninth holds that it has appellate jurisdiction to review the order.  Thus, the court converts the writ proceedings into an appeal, then decides it on the merits.

The order at issue is an order unsealing documents related to a plea agreement.  The order rather obviously meets both criteria for review under the collateral order doctrine because it “conclusively decides an issue” and “it is effectively unreviewable on appeal from a final judgment,” both for the same reason: once secret documents are made public, there’s no going back.

Collateral Estoppel and the Exhaustion Doctrine

Must a whistleblower whose claim is denied at the administrative level exhaust his judicial remedies by petitioning for mandamus in the Superior Court before he may file a civil suit under the Whistleblower Act? That was the apparent question in CALPERS v. Superior Court, case no. C054168 (3d Dist. Feb. 15, 2008), where CALPERS contended that its demurrer to the civil suit should have been upheld because the plaintiff, whose whistleblower administrative claim had been denied by the State Personnel Board, did not challenge the SPB executive officer’s findings by petitioning for mandamus.

The answer is, “it depends.” That’s because the issue isn’t so much whether the statute requires exhaustion — it doesn’t — but because the findings have collateral estoppel effect. If the findings are not enough to bar a civil claim, then the plaintiff can proceed despite not petitioning for mandamus. But if the administrative findings preclude the civil claim, the whistleblower needs to challenge adverse findings successfully to preclude their collateral estoppel effect:

If, as plaintiff would like, the statute and the amended regulation were divorced from a complicated body of case law on the binding effect of administrative findings in subsequent litigation, we could accept the plain reading of the statute, bolstered by the regulation, and conclude a whistleblower need not be encumbered by the administrative findings of the SPB in his civil action under the Whistleblower Act. We are not, however, at liberty to pretend the thorny problems posed by collateral estoppel do not exist. As a result, even if we were to accord great weight to the SPB’s construction of [Government Code] section 8547.8’s administrative exhaustion requirement, we conclude that the plain language of the statute simply does not resolve the more difficult dilemma posed by collateral estoppel.

The court affords collateral estoppel effect to the executive officer’s findings — and thus finds the civil claim barred —  even though the findings were based solely on documentary evidence and argument and the whistleblower’s request for a full evidentiary hearing was denied:

Thus, it appears the investigation became a contested proceeding based on opposing evidentiary submissions. The executive officer served as a neutral adjudicator and was required to and did consider the parties’ documentary evidence as well as arguments. “[S]o long as the agency is required by law to accept and consider evidence from interested parties before making its decision,” the proceedings, even if entirely documentary, satisfy the hearing requirement of Code of Civil Procedure section 1094.5. [Citations.]

Since, as we have concluded, the SPB’s decision was made as the result of a proceeding in which evidence was required to be given and considered by the executive officer, its validity can be challenged by a petition for a writ of mandate. Here, plaintiff chose not to challenge the adverse findings by way of a petition for a writ. As a result, those findings cannot be relitigated in a whistleblower civil action and respondent court erred by overruling PERS’s demurrer.

This decision initially struck me as fundamentally unfair. No one could complain of collateral estoppel effect for findings made after a full evidentiary hearing. But in this case, the whistleblower’s request for an evidentiary hearing had been denied and the findings were based exclusively on documentary submissions. Even the court, in light of inherent flaws it notes in the administrative procedure, seems to regret that it must issue this decision :

Without exempting whistleblowers from pursuing the administrative proceedings it requires them to commence, we must apply traditional principles of collateral estoppel, and despite the distinct infirmities present in the administrative proceedings, we conclude that any adverse findings rendered by the SPB have a preclusive effect in subsequent civil litigation unless challenged by a writ of administrative mandamus.

Review Granted Regarding “Suggestive” Palma Notice

A hat tip to Ben Shatz for promptly alerting me last week that the Supreme Court granted review in Brown, Winfield & Canzioneri, Inc. v, Superior Court (Great American Insurance Co.), case no. S156598. I haven’t posted until now because I’ve been mulling over the implications of the case — and I’ve been otherwise swamped.

Review was granted on an interesting issue regarding writ practice — an area that is mysterious enough for many litigators even without the extra twist thrown in by the Court of Appeal in this case. This is a tough one to follow, as the Court of Appeal did not issue a decision. So, there’s nothing on Westlaw. What happened must be gleaned from the Court of Appeal docket and Supreme Court docket.

If you are not familiar with writ procedure, you may want to check out this article at LACBA’s site before reading any firther.

What the Court of Appeal did in Brown — at least, as far as I can make out from the dockets — resulted in a weird disposition of the case that did not follow any of the usual “tracks” in a writ proceeding. The Court of Appeal issued a Palma notice indicating its intent to issue a peremptory writ in the first instance, but the notice apparently was “suggestive” to the respondent court (in the manner set out in the Supreme Court’s review order, reproduced in part below) and gave the trial court the “power and jurisdiction” to change its order. Apparently as a result, on the very next day after the Palma notice issued — before the real party in interest could file an opposition — the superior court vacated its prior order.

The Supreme Court designated the following issues for briefing and argument:

(1) May a Court of Appeal issue a “suggestive Palma notice” (see Palma v. U.S. Industrial Fasteners, Inc. (l984) 36 Cal.3d 171) – that is, a notice that discusses the merits of a writ petition with citation to authority, determines that the trial court ruling was “erroneous,” and gives the trial court the “power and jurisdiction” to change its order?

(2) If such an order is proper, absent exceptional circumstances, may it be issued without giving the real party in interest an opportunity to file opposition?

The biggest issue here seems to be the suggestiveness of the Palma notice, since the Court of Appeal usually doesn’t write in depth on the merits until it has considered an opposition. Any Palma notice implies that the Court of Appeal has made at least a preliminary determination that the trial court ruling was incorrect, and real parties are always at risk that the trial court will vacate its ruling, but it’s the extra “push” given by the Court of Appeal in this case that seems to have caught the attention of the Supreme Court.

Death Penalty Odyssey Likely to Fuel Debate

NOTE: This is a re-post of an earlier post that I unwittingly published with the exact same blog title as the below-referenced Decision of the Day post.

In a post entitled A “Wholly Discomforting” End To Twenty-Two Years of Death Penalty Appeals, Robert Loblaw at Decision of the Day notes yesterday’s 159-page decision in Cooper v. Brown, case no. 05-99004 (9th Cir. Dec. 4, 2007) and comments on how it is likely to fuel debate on the death penalty.

I think I remember hearing about this case on the news the last time Cooper’s execution was stayed, but I sure don’t remember the “discomforting” facts DoD excerpts from the concurring opinion making it into the news.

Medical Marijuana Buzz . . . and Writ Standing, Too

Looks like the new marijuana radio talk show on Inland Empire radio station KCAA (which is also available via podcast, and which I learned about from this post at Drug Law Blog) will have plenty to talk about tomorrow. Yesterday, in City of Garden Grove v. Superior Court (Kha), case no. G036250 (4th Dist. Nov. 28, 2007) the Court of Appeal denied a writ petition by the City of Garden Grove (joined by 4 law enforcement associations and 15 cities all over the state as Amici Curiae) seeking to vacate a trial court order to its police department to return medical marijuana seized from a person that the DA declined to prosecute for lack of evidence once the DA confirmed that the marijuana was legally possessed under California’s medical marijuana law at the time it was seized.

Noting that the city’s predicament of being caught between the state’s medical marijuana law and the federal illegality of marijuana presented “terra incognita” that required “analytical accouchement,” the court summarized its holding at the outset of its opinion:

[W]e are convinced by the Attorney General’s argument that governmental subdivisions of the state are bound by the state’s laws in this instance and must return materials the state considers legally possessed. We are persuaded due process will allow nothing less.

We may soon learn how persuasive the opinion is. Drug Law Blog posted just yesterday about a Colorado case in which a trial court ordered the return of marijuana seized from a couple who grew it for their own medical use and also dispensed it to others for medical use. The Colorado appellate court (should the case get there) is sure to examine Garden Grove (as well as State v.Kama (2002) 178 Ore. App. 564).

There is an appellate procedure angle to the case, as well. (I’ll leave any detailed discussion of the merits to Drug Law Blog or others sure to cover them). The issue is standing.

The attorney general challenged the city’s standing to bring the petition, which required a lengthy explanation from the court about whether the city had the “beneficial interest” normally required to confer standing on a petitioner. As the court notes, for a party to be “benefically interested,” it must have “some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.”

The court notes initially that the city’s purely ministerial role in returning the marijuana precludes a beneficial interest generally, and that the city cannot claim a beneficial interest arising from the risk of prosecution for violating federal law because that risk does not exist in light of the federal immunity statute (21 U.S.C. § 885(d)). Moreover, the city has nothing to lose by returning the marijuana because it was not needed as evidence or to further an investigation.

But the court finds standing anyway:

That said, we are mindful this case involves an important issue related to California’s medical marijuana laws. As we explain below, those laws are intended to give qualified patients the right to obtain and use Higher Grounds marijuana for medical purposes. But if the City prevails, the police could thwart that objective by withholding marijuana they have seized from qualified patients, even when the patient is no longer subject to state criminal prosecution. Whether, as the City contends, this is a necessary consequence of federal drug policy is a question of first impression and one that is of considerable importance to those who rely on cannabis for medicinal purposes.

Moreover, media reports indicate the question of whether local authorities must return lawfully seized marijuana to its owner once state criminal proceedings have been terminated in the owner’s favor is a topical issue that has produced inconsistent outcomes throughout the state. [Citing news coverage of inconsistent actions taken by various law enforcement agencies throughout the state.]

These considerations militate strongly in favor of granting the City standing. [Citations.] So does the fact this case implicates constitutional concerns respecting the relationship between state and federal law. Courts have recognized that, consistent with our federalist system of government, state political subdivisions should be given standing to invoke the supremacy clause to challenge a state law on preemption grounds. [Citations.] Standing is also favored if an interested party may otherwise find it difficult or impossible to challenge the decision at issue. [Citations.] And here it appears quite likely the City will not be able to obtain judicial review of the trial court’s order unless it is afforded standing in this proceeding. For all these reasons, we conclude the City has standing to challenge the trial court’s order.

When considering writ review, don’t forget the importance of public interest considerations. After all, you need all the help you can get in beating that 90%+ summary denial rate.

UPDATE (11/29/07): As expected, Alex Coolman weighs in on Garden Gove in this post at Drug Law Blog. It’s a good discussion of the merits, and Alex suggests the Supreme Court should consider Garden Grove’s reasoning as it decides Ross v. Ragingwire, which has already been argued.

UPDATE (11/30/07): More coverage of the case:, Los Angeles Times, Medical Marijuana of America.

Looking for Help re Anonymous Habeas Case

Howard Bashman at How Appealing is looking for an explanation why the habeas petitioner in yesterday’s Doe v. Woodford, case no. 06-16054 (9th Cir. Nov. 27, 2007) opinion was kept anonymous despite the facts that (1) it appears to be a substitute opinion for an earlier opinion under the same case number, in which the petitioner was identified and (2) the PACER records for the case continue to identify the petitioner by name.  The opinion itself is silent on the reason for anonymity.

Anyway, Bashman would appreciate it if you can e-mail him with any information that may help explain the anonymity of the habeas petitioner in yesterday’s opinion.

Court of Appeal to the Rescue Again

My case law blogging has been weighted heavily toward substantive legal developments this week because I haven’t seen anything really procedurally interesting.  Then along comes County of Orange v. Superior Court, case no. G037562 (4th Dist. Oct. 3, 2007) to make my week.

The County appealed from an order for genetic testing to determine paternity pursuant to Family Code section 7575.  While the appeal was pending, the County filed “a petition for a writ of mandate, prohibition, or other appropriate relief and requested an immediate stay of the trial court proceedings.”  The court of appeal treated the petition as one for supersedeas, and granted relief (i.e., stayed enforcement of the trial court order pending appeal).

After the appeal was fully briefed (apparently), respondent moved to dismiss the appeal on the ground that the genetic testing order was not appealable.  The court of appeal declined to decide the appealability of the order, opting instead to exercise its discretion to treat the appeal as a petition for writ of mandamus:

We do not reach this issue [of appealability] because we exercise our discretion to treat the appeal as a petition for a writ of mandate, in the interests of justice and judicial economy.  [Citation.]  The merits of the issue have been fully briefed by the parties, and this is a case in which the failure to consider the issue at this juncture would be a dereliction of our duties as a reviewing court.  We deny the motion to dismiss the appeal as moot.

The Opening Brief‘s Tom Caso poses some logical questions in light of these procedural irregularities:

This raises an interesting question with regard to conversion of the first writ into a writ of supersedeas.  As noted above, the purpose of that writ is to preserve the court’s appellate jurisdiction (Cal Rule of Court 8.112; CCP § 923).  If the court was going to treat the matter as a petition for writ of mandate in the end, was it necessary to convert the first writ into a writ of supersedeas?  Does this give the real party grounds to argue that the court acted in excess of its jurisdiction in granting that writ and the immediate stay?

I suspect that the real party in interest (the respondent, before the court of appeal decided to treat the appeal as a writ petition) wouldn’t get very far with this “excess of jurisdiction” argument.  A party may seek an immediate stay pending the outcome of a writ petition.  Assuming the supersedeas writ somehow dissolves with the conversion of the appeal to a writ petition, that “conversion” apparently did not take place until the court filed its opinion ordering the issuance of the writ of mandamus.  Any stay, valid or not, became moot at that point.

But suppose the court of appeal had issued an order on the motion to dismiss stating that it was denying the motion as moot because it was treating the appeal as a petition for writ of mandamus, then did not decide the petition for several more weeks.  In that situation, the respondent/real party might have a case that the supersedeas writ issued earlier was no longer in effect.

However, I doubt this technical point would avail the respondent/real party.  It seems unlikely that a trial court would treat the writ of supersedeas as having lapsed without an order from the court of appeal.  In addition, I think it highly unlikely the court of appeal would have left that issue unresolved.  Upon issuing its order denying the motion to dismiss as moot and treating the appeal as a writ petition, it most likely would have construed the first writ petition and the converted appeal together as a petition for writ of mandamus with a request for immediate stay and issued an order granting the stay.

The reason I suspect this is that the court of appeal usually goes out of its way to save appeals and its jurisdiction, and will jump through hoops to construe procedure the way that best resolves the case.  If memory serves, in the case I blogged about here, for example, the court stretched to construe the order appealed from as several alternate orders in a vain effort to find appellate jurisdiction.

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Mandate Unavailable to Compel Property Reassessment

In Little v. Los Angeles County Assessment Appeals Boards, case no. B195610 (2d Dist. Sept. 27, 2007), the court of appeal holds that a property owner may not challenge a property assessment by way of petition for writ of mandate under Code of Civil Procedure section 1085.

During the real estate downturn of the 1990s (check this out for more details), Little had successfully sought a reduction in the assessment roll base year value for his multi-unit property from $790,000 to $480,000, based on a decline in value. He then sought and obtained a second reduction to $288,000, which increased to $304,000 by 2003 from annual 2 percent increases. When the asessor’s office notified him in 2004 that it was reinstating the assessed value to $480,000, Little filed an application for a change in assessment back to $304,000. He contended that the $480,000 base year value was incorrrect because the assessor mischaracterized the type and size of the units. When that application was denied, Little filed a petition for writ of mandate in the superior court.

The assessor demurred to the petition, contending that because Little had an adequate remedy at law by way of a complaint for refund of property taxes, mandate did not lie. The superior court overruled the demurrer and denied the petition on the merits.

The court of appeal holds that the demurrer should have been sustained:

Little’s petition below sought the issuance of a peremptory writ directing the Assessor to correct the property’s base year value on the assessment roll to the 1996 base year value of $288,000, and to assess the property for 2004, 2005 and all subsequent years based upon the base year value of $288,000. Thus, Little’s petition impermissibly sought to enjoin the collection of future taxes.

California Constitution article 13, section 32, provides: “No legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature.”

(Emphasis in original.)

Writ Review Appropriate where Discovery Ruling Threatens Privilege

You’ve seen me complain before about the court of appeal reviewing writ petitions on the merits without saying why.  After all, there has to be something special in every instance of review, as more than 90% of writ petitions are summarily dismissed.

Ombudsman Services of Northern California v. Superior Court, case no. C054737 (3d Dist. Sept. 5, 2007), the court is very explicit about why it reviewed the writ petition on the merits (citations omitted):

“Although writ review of discovery rulings is generally disfavored, interlocutory review by writ is the only adequate remedy when, as here, a court compels the disclosure of documents or information that may be subject to a privilege, because ‘once privileged matter has been disclosed there is no way to undo the harm which consists in the very disclosure.’ [Citation.]”  Writ review is particularly appropriate here to protect the confidential records of third persons who are not parties to the underlying litigation below, who have had no notice of the ordered disclosure, and who, as a result, have had no opportunity to object. OSNC properly asserted the privacy rights of those third persons affected by the discovery order of the trial court.

It figures that the court of appeal would be very explicit in a case where the reason for review would probably have been rather obvious without the explanation.  But I won’t look a gift horse in the mouth.  Instead, I shall just politely ask: “More of this, please.”

Grand Jury Secrecy vs. Civil Rights Plaintiff’s Right to Discovery

If your civil rights lawsuit alleged you were imprisoned for 24 years for a murder you didn’t commit and your conviction was based on the perjured testimony of a jailhouse informant, you might want to take a peek at the records of a grand jury investigation into the misuse of such informants during the time you were convicted.  But there’s that pesky issue of grand jury secrecy, so the trial court rules that you have no right to access those records.

This is what happened to Thomas Lee Goldstein, but he has a second chance after Goldstein v. Superior Court, case no. B199147 (2d Dist. August 23, 2007), in which the Court of Appeal reverses and remands to the trial court to consider Goldstein’s motion under the appropriate test.  The test announced in Douglas Oil Co. v. Petrol Stops Northewest (1979) 441 U.S. 211, 222 governs because Goldsteing is not seeking public disclosure and is willing to abide by a protective order.

Under that test, parties seeking grand jury material in federal court must make a particularized showing that (1) the material they seek is needed to avoid a possible injustice in another judicial proceeding, (2) the need for disclosure is greater than the need for continued secrecy, and (3) the request is structured to cover only material so needed.

This case also illustrates a principle of writ review.  As the court notes at footnote 1 of its opinion, Goldstein filed a contemporaneous appeal from the order denying his motion for access to the grand jury records.  The court decided the issue on review of the writ petition because “it appears the issue “is one of importance that should be resolved promptly.”

Which Bystanders to Personal Injury Can Claim Emotional Distress?

a interesting issue of tort liability is presented by Ra v. Superior Court, case no. B19766 (2d Dist. August 15, 2007).  The opening paragraph of the opinion does such a good job of framing the issue that I quote it in full here:

In Thing v. La Chusa (1989) 48 Cal.3d 644, 667 (Thing), the Supreme Court held only “closely related percipient witnesses” may seek damages for emotional distress caused by observing the negligently inflicted injury of a third person and specificallylimited recovery to a plaintiff who “is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim.” (Id. at p. 668.) Does the requirement of contemporary sensory awareness of the causal connection between the negligent conduct and the resulting injury limit recovery on a bystander claim to a plaintiff who clearly and distinctly perceived the injury being inflicted, or is recovery permitted for a plaintiff who was aware a traumatic event was occurring and believed it “more likely than not” her husband had been injured?

Here, the plaintiff did not visually witness the accident.  She and her husband were in a store when a sign fell on his head.  They were in different parts of the store when she heard a loud crash coming from the area of the store where she knew him to be.

The defendant moved for summary adjudication of the bystander claim on the ground that these facts do not satisfy the prerequisites of Thing.  The court granted the motion over plaintiff’s argument that her belief that it was “more probable than not” that her husband had been injured presented a triable issue of fact.

The court denies the writ, finding plaintiff’s belief in her husband’s probable injury is insufficient to satisfy Thing.  Bystanders found to have standing in previous cases despite their lack of visual perception of the accident had a “reasonable certainty” of injury to a close relation because of the nature of their perception, or came upon the scene while the injurious event was still in progress.  Here, plaintiff had only a “more-likely-than-not fear” that her husband had been injured.

Note that this issue was decided on a writ petition, when it could have been appealed from a subsequent final judgment in the action.  Apparently, the court felt this issue was of such importance that deciding it on a writ petition was appropriate.

The case also contains two lessons about writ practice.  First, even though only plaintiff’s bystander claim was summarily adjudicated, her husband was a proper party to the petition for writ of mandate because his loss of consortium claim was dependent on the bystander claim, thus satisfying the requirement that he be “beneficially interested” in the order.

Second, even though the court applied de novo review to the summary adjudication motion, it did not reach one of plaintiff’s argument made in opposition to the motion because she did not raise it in her petition.  Counsel cannot count on de novo review to reach every issue raised below.  If you want the court to consider it, put it in the petition.

Ninth Circuit: No Appeal from Order Denying Issuance of Notice of FLSA Collective Action

The collateral order exception to the final judgment rule allows a circuit court to exercise its jurisdiction, even in the absence of an appealable final judgment, if the order appealed from meets certain prerequisites.  Providing a good lesson in the Ninth Circuit’s application of the exception is today’s opinion in McElmurry v. U.S. Bank Nat’l Assoc., case no. 05-36407 (August 8, 2007), in which the plaintiffs, seeking unpaid overtime pay, appealed from an order denying their motion to issue notice of a collective action under the FLSA.

The Ninth Circuit explains the prerequisites for application of the exception (citations omitted):

Jurisdiction exists in only a “small class” of cases that are deemed “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”  To qualify as a collateral order suitable for appellate review, an order must: 1) “conclusively determine the disputed question”; 2) “resolve an important issue completely separate from the merits of the action”; and 3) “be effectively unreviewable on appeal from a final judgment.”

The court finds that the order denying the motion to issue a notice of collective action would not be “unreviewable on appeal.”  This standard is met only where “the legal and practical value of [the right at stake will] be destroyed if [ ] not vindicated before trial.”  (Citations omitted.)  The court rejects plaintiffs’ claims that some employees may lose their chance to litigate:

Appellants argue that the statute of limitations will continue to run, and that some employees may lose their opportunity to participate in a collective action if they wait until after an appeal from final judgment. Although employees who may be similarly situated but have not opted in to the action are not bound by its conclusion, and may pursue their actions individually, [citation], we understand Appellants’ concern. However, these arguments have been made in the context of class action suits as well, and it is well established that there is no collateral order jurisdiction over a district court decision to certify or not to certify a class action under Rule 23.  [Citations.]  Although, as we have pointed out, there are differences between a collective action brought pursuant to § 216(b) and a class action brought under Rule 23, those differences are not relevant to whether we may exercise collateral order jurisdiction.

Another interesting point about the case is that the plaintiffs filed an appeal and a writ petition — a practical tactic when the appealability of the order is in doubt.  Here, however, it doesn’t pay off.  The same factors that defeat appellate jurisdiction also defeat the writ petition.

Undue Delay Precludes Coram Nobis Relief Even Where No Prejudice Results from Delay

A petitioner for writ of coram nobis must satisfy a four-part test, one element of which is that  “valid reasons exist for not attacking the conviction earlier.”  Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987).  In United States v. Riedl, case no. 06-10424 (August 6, 2007), the petitioner argued to the Ninth Circuit that even if the court did not accept her reasons for delay as valid, the delay could not preclude relief unless the government asserted laches, i.e., that it would suffer prejudice from a grant of the writ in light of the delay.  The Ninth Circuit rejects the argument, finding that undue delay precludes relief even in the absence of prejudice:

We agree with the district court that Riedl’s petition must be denied. She has failed to provide any valid reasons for waiting so long to challenge her convictions on these grounds, and thus plainly does not satisfy the requirements for the highly unusual remedy of coram nobis relief. See Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) adopting four factors as predicates for coram nobis relief, including that “valid reasons exist for not attacking the conviction earlier”). Riedl attempts to overcome her unjustified delay by invoking the equitable doctrine of laches, arguing that the government has not been prejudiced by her tardiness. Cf. Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (addressing laches in coram nobis context). We reject the notion that a petitioner can employ laches in such a fashion. To follow Riedl’s suggestion under the circumstances of this case would transform the extraordinary writ of coram nobis into a free pass for attacking criminal judgments long after they have become final.

Riedl was attempting to turn laches from a shield into a sword.  The Ninth Circuit finds offensive use of the doctrine . . . well, offensive:

Nevertheless, Riedl is incorrect that coram nobis relief is available as long as it is not barred by laches. Our decisions that have considered laches have done so only because the government invoked the doctrine as a supplemental defense.  Those decisions have not purported to overrule the Hirabayshi framework, which places the initial burden of justifying delay squarely on the petitioner, nor as three-judge opinions could they have done so.

(Emphasis in original.)

Writ Opinions

When nearly 92% of all original proceedings in the California Court of Appeal are dismissed without written opinion (for fiscal year 2005-2006, the latest year for which statistics are provided in the 2007 Judicial Council report), it would be nice if the Court of Appeal would, in any given case, explain why that particular case made it past summary dismissal to review on the merits.  Too frequently, a writ opinion is silent on this question.

I can’t offer empirical evidence, but my observation is that the Ninth Circuit addresses this issue explicitly much more consistently in its writ opinions.  This is probably because its decisions usually evaluate the Bauman factors, as we are reminded by Douglas v. United States District Court for the Central District of California, case no. 06-75424 (July 18, 2007):

Because a writ of mandamus is an extraordinary remedy, we have developed five factors that cabin our power to grant the writ:

1. “The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires.”

2. “The petitioner will be damaged or prejudiced in a way not correctable on appeal.”

3. “The district court’s order is clearly erroneous as a matter of law.”

4. “The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules.”

5. “The district court’s order raises new and important problems, or issues of law of first impression.”

Bauman v. U.S. Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977).

I wish the California Court of Appeal was as methodical.  It would make for a much better developed body of law on when the court will exercise its discretion to review a writ petition on the merits.

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An Appealable Discovery Order

Most parties faced with an adverse discovery ruling have to grin and bear it.  Discovery orders are not generally appealable, and a writ petition is such a longshot that unless the ruling threatens a trade secret or similarly sensitive confidential information, the writ petition hardly seems worthwhile.  In H.B. Fuller Co. v Doe, case no. H030099 (May 31, 2007), California’s Sixth District Court of Appeal reminds us of a rare occasion when a discovery order is appealable. 

Doe sought to quash a subpoena directed to an internet company.  The subpoena sought information that would identify the person (Doe) who posted Fuller’s confidential company information on internet message boards.  No lawsuit was pending in California, and Doe’s identity was apparently necessary before Fuller could commence suit in its home state of Minnesota.

In a decision limited to Doe’s motion to unseal the record and briefs on appeal, the court first addressed the issue of appealability.  It found this discovery order was appealable because “the order is ancillary to litigation in another jurisdiction and operates as the last word by a California trial court on the matters at issue.”  Thus, even though the court could readily have chosen to construe the appeal as a writ petition, it found it unnecessary to do so.

This is a great case to remember.  Dire circumstances justifying writ review won’t always be present when a client gets hit with an unfavorable discovery order arising from litigation in another jurisdiction.  Being able to appeal greatly expands the cases in which review may be invoked.

Conflict with Appellate Counsel Doesn’t Merit Habeas Relief

In Foote v. Del Papa, case no. 06-15094 (May 22, 2007), the Ninth Circuit holds that a state criminal defendant’s “irreconcilable conflict” with appellate counsel does not, in itself, entitle the state defendant to habeas relief.

Foote filed suit against his assigned attorney and the public defender’s office a month after his arraignment, claiming that his assigned defender’s handling of the case deprived him of his Constitutional rights. The public defender’s office moved to withdraw, claiming the lawsuit created a “clear conflict of interest.” After sentencing, the state trial court granted the request of Foote’s retained counsel to assign the public defender to represent Foote on appeal. Foote’s direct appeal to the Nevada Supreme Court was dismissed, and that court also declined his state habeas petition, characterizing the alleged conflict of interest as a potential conflict only.

Foote’s federal habeas petition alleged ineffective assistance of counsel as a result of th conflict of interest. He claimed the public defender failed to raise meritorious appellate issues and never responded to his demand to withdraw and ask for the appointment of independent counsel counsel.

The Ninth Circuit denies the petition because it is an “open question” whether the defendant’s conflict of interest with appellate counsel violates the Sixth Amendment. Under the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), habeas relief cannot be granted unless the decision of the state court is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Since the Supreme Court has never held that a conflict with appellate counsel violates the Sixth Amendment, habeas relief is denied.

This is an unsettling decision because the Ninth Circuit’s reasoning denies relief even assuming the alleged conflict of interest actually exists. Though it recognizes that an “irreconcilable conflict” between defendant and trial counsel may entitle the defendant to new trial counsel, the lack of a comparable Supreme Court holding with respect to appellate counsel means that habeas relief must be denied.

Is this distinction between trial counsel and appellate counsel splitting hairs?

The Ninth Circuit Blog says that “This “Foote-note” to the Sixth Amendment seems too narrow as it is not a large step from trial counsel to appellate counsel.”

Likewise, anonymouos blogger “J” at the The AEDPA Law and Policy Blog says:

I’m not an expert on this particular area of the 6th Amendment. That being said, isn’t there an argument that the 6th Amendment rights of a defendant at trial are the same as his 6th Amendment rights during his first appeal as of right vis-a-vis the right to conflict-free representation? If that is correct, then wouldn’t the failure to provide conflict-free counsel based on the difference between the trial and the first appeal implicate the “unreasonable application of” prong? (Emphasis in original.)

I tend to agree. Why should a distinction be drawn between trial counsel and appellate counsel in this situation? The Ninth Circuit doesn’t even attempt to draw one, even though it relies on the distinction to establish the lack of controlling Supreme Court precedent.

Election Contest Not Appropriate for Writ Review

In Nguyen v. Superior Court, case no. G038475 (May 14, 2007), the California Court of Appeal, Fourth District, holds that a losing candidate’s challenge to a ballot recount that reversed the results of a board of supervisors election “should be heard by the more deliberative and thorough process of appeal, rather than the hastier route of a petition of writ of mandate,” but leaves open the possibility of writ review in other election challenges.  In part, the court denies the writ because due deliberation and the procedural safeguards of appeal are especially important in a case that may result in the removal of an elected official that has already been sworn in to office.  But the court also evaluates the classic factors for determining the appropriateness of writ review (see Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266) — at least, those that it finds applicable to a petition brought after trial, when appeal is readily available.  Since the legislature had specifically provided for relief by way of appeal (Elections Code section 16900) and expedited that relief by giving election cases preference on appeal (Code of Civil Procedure section 44), , the court finds that the petitioner has an adequate remedy by way of appeal.  In the absence of any constitutional question, conflict in trial court decisions, or impending elections that might be affected by the statewide ramifications of an ultimate ruling, the court holds that writ review is inappropriate in this case.

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