The California Supreme Court scolded appellate justices in Riverside Thursday for turning a deaf ear to lawyers who want to plead their cases orally.
The unanimous high court, in an opinion by Chief Justice Ronald M. George, ordered Division 2 of the 4th District Court of Appeal to rewrite its notice pressuring counsel to waive oral argument.
Three hours after the opinion was issued, the presiding justice of Division 2, Manuel A. Ramirez, said he was doing exactly that.
"Of course, we're going to comply with the Supreme Court's decision," Ramirez said in a brief telephone interview. "I'm personally working on rewriting the notice right now."
The opinion directed Division 2 to do what it had earlier avoided: Schedule an oral argument and reconsider whether to uphold a cocaine dealer's conviction and 13-year sentence. People v. Pena, 2004 DJDAR 1343.
George cited the late Justice Stanley Mosk's "In Defense of Oral Argument" in stressing the importance of letting lawyers have their say at the podium in appellate court. And George found a choice passage in a 1982 case to explain why reliance solely on written briefs is unwise:
"Mistakes, errors, fallacies and flaws elude us in spite of ourselves unless the case is pounded and hammered at the Bar," George wrote, quoting the late Chief Justice Rose Bird in Moles v. Regents of University of California, 32 Cal.3d 867, citing another judge's appreciation of arguing out loud.
The Pena case began in 2000, when a San Bernardino police officer followed Jose Guadalupe Reyes Pena from Colton to a house in Bell Gardens in Los Angeles County and arrested him with a kilo of cocaine and four semiautomatic weapons.
A jury found Pena guilty of drug and firearm possession, and the court sent him to prison for 13 years. Pena's appellate lawyer, Dan Mrotek of San Luis Obispo, challenged a jury instruction, a sentencing issue and the trial judge's failure to suppress evidence.
In 2002, Riverside appellate Justices Barton C. Gaut, Thomas E. Hollenhorst and Betty A. Richli sent Mrotek a tentative opinion rejecting the appeal along with a boldfaced, italicized announcement: "the court has decided that oral argument will not aid the decision-making process."
If Mrotek insisted on speaking before the court, the notice warned, he must not repeat anything he'd written in his briefs or risk sanctions.
"My reaction was, this is illegal," Mrotek said Thursday. "Oral argument is another way one has to defend one's client, and that's our job, so we use it."
Mrotek decided not to buck the announcement, so the appellate panel made its tentative opinion final. Then Mrotek appealed that move, contending the panel had denied him due process of law. Oral argument was essential in the Pena case, he said, because he wanted to correct misstatements of fact in the tentative decision.
The Division 2 panel summarily denied a rehearing. But the Supreme Court granted review - and held an oral argument, at which George and other justices were openly antagonistic to the notion of squelching lawyers who yearn to speak out.
Thursday's opinion tempered the hostility by praising Division 2's tentative opinion program, begun in 1990.
"We strongly emphasize," George wrote, "that our decision in the present case is by no means intended, and should not be viewed, as discouraging experimentation by the Courts of Appeal through the adoption of procedural innovations designed to streamline the appellate process."
But the waiver notice sent to Mrotek and others went too far, George opined, especially when it threatened sanctions if counsel demanded oral argument and then parroted material in written briefs.
That stricture contradicts court rules forbidding the oral introduction of claims that have not been briefed.
"Thus, under the literal language of the notice," George wrote. "if appellate counsel requested oral argument he or she faced the Hobson's choice of orally arguing a point made in the briefing and facing possible sanction, or raising only new points during oral argument that the appellate court properly could decline to entertain."
To demonstrate oral argument's value, the high court quoted panelist Hollenhorst's own words in a law review article on the tentative opinion program:
"Where counsel have a draft opinion before oral argument," Hollenhorst wrote in 1995, "they also have the opportunity to aid the court by pointing out errors in the opinion."
The case got the attention of the California Academy of Appellate Lawyers, which filed an amicus brief backing Mrotek.
"Counsel shouldn't be deterred from attending oral argument on the theory that the matter has already been decided," said academy member James C. Martin, of Reed Smith Crosby Heafey's Los Angeles office.
Mrotek, a sole practitioner, singled out Martin and partner Benjamin G. Shatz for helping him put his appeal together, along with Suzan E. Hier, a staff attorney at the California Appellate Project in Los Angeles.
In 25 years of practice, Mrotek said Thursday, he's never seen a case like this.
"Such discouragement from the court is thankfully rather rare," he said. "I'd like to break out the champagne, but I'm pretty busy on other cases today."
Deputy Attorney General Matthew Mulford of San Diego, who defended Division 2's oral argument policy, said it was not the division's intent to muzzle lawyers.
"We would never knowingly deprive a litigant of an opportunity to be heard in court," Mulford said Thursday. "The Supreme Court said our notice letter was too strong, and we won't have any trouble altering that. Mr. Pena gets another day in court."
Reprinted with permission from Daily Journal.
