California Supremes on the Right to Rehearing on Unbriefed Issues

When is a party entitled to a rehearing from the Court of Appeal?  One such case — where the decision is based on an issue the parties did not have an opportunity to brief — is codified at Government Code section 68081:

Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing.  If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any
party.

Seems rather straightforward, right?  Perhaps that’s why the Supreme Court confesses in today’s unanimous opinion in People v. Alice, case no. S144501 (July 5, 2007), that “we never have examined [Government Code section 68081’s] meaning in depth.”  It then proceeds to do just that, providing some valuable lessons . . .

The People appealed both from (1) an order dismissing a count of the information and (2) from what it characterized as a subsequent “order granting drug treatment probation.”  The Court of Appeal decided that the appeal was authorized by Penal Code section 1238, subdivision (a)(10) as an appeal of “an unlawful sentence” even though neither party had briefed that basis for appeal.  (The apparent rationale of the Court of Appeal was that the defendant would not have been entitled to probation had a portion of the information not been set aside.)  The Supreme Court holds that the Court of Appeal violated section 68081 by basing its decision on the “unlawful sentence” ground for appeal because the issue was not briefed by the parties and thus also erred by refusing the timely request for rehearing.

First, section 68081 requires that the parties have an opportunity to brief an issue, not that they actually brief it.  The Supreme Court holds that since court rules require the filing of opening and responding briefs, the Rules of Court not only give each party the opportunity to brief every issue that is raised in the appeal, but also any issues that are “fairly included within the issues actually raised.”

Second, section 68081 contemplates an opportunity to brief the issue.  This requirement is not satisfied by an opportunity to address the issue at oral argument.

Applying the first rule, the Supreme Court finds that the issue of whether the People’s appeal was authorized as the appeal of an “unlawful sentence” under Penal Code section 1238, subdivision (a)(10) was not “fairly included” in the parties’ arguments over the bases for appeal.  The People argued only that Penal Code section 1238, subdivision (a)(1) authorized a direct appeal from an order dismissing a charge, and that Penal Code section 1238, subdivision (a)(5) authorized appeal from an order erroneously granting drug treatment probation.  The defendant had only argued that both aspects of the appeal were a prohibited appeal of a probation order.  (Penal Code § 1238, subd. (d).)  The court finds that the issue of whether the sentence was unlawful “is not inherent in the question of whether there was an unlawful order setting aside a portion of the information or whether there was an erroneous order granting probation.”

Applying the second rule, the Supreme Court finds that the Court of Appeal’s issuance of a tentative decision that invited the parties to address the issue at oral argument is not enough to save its judgment.

The decision does little to define the “fairly included” standard.  The Supreme Court states:

We do not suggest, of course, that the parties have a right under section 68081 to submit supplemental briefs or be granted a rehearing each time an appellate court relies upon authority or employs a mode of analysis that was not briefed by the parties. The parties need only have been given an opportunity to brief the issue decided by the court and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of section 68081.

Think very carefully about the scope of the issues raised in the briefs.  Look beyond the surface to determine if there are issues or “modes of analysis” that are “fairly included” within the issues that are explicitly raised.  Failure to respond to these “fairly included” points may result in a loss based on an issue that you never addressed.