Thursday, April 4, 2013

Appellant's Petition For Rehearing


            Appellant Gary Allen Johnson hereby petitions the Appellant Division for a rehearing of his case, pursuant to CRC Rule 8.889.
            This petition is supported by the Declaration of Ed Frey and Memorandum of Points and Authorities attached hereto, and all other papers on file herein.

Dated: April 1, 2013                                        
                                                                        Ed Frey, Attorney for Gary Allen Johnson

            I, Ed Frey, declare
            1. I am the attorney for appellant Gary Allen Johnson.  I appeared on his behalf at oral argument March 21, 2013.
            2. At the outset of the hearing only two judges appeared at the bench, the Hon. Ariadne Symons and the Hon. Paul Burdick. I immediately raised the issue of the three-judge requirement. Judge Symons, who assumed the role of presiding judge, rejected the contention. She stated that the law was clear that two judges were sufficient so long as they were both agreed to a particular resolution. Judge Symons said that was true here, that she and Judge Burdick had already agreed to a decision, and therefore the three-judge requirement does not apply. She then instructed me to move on to whatever other matters I wished to argue.
            3. I then asked Judge Symons to tell me what decision she and Judge Burdick had agreed upon. She told me that the court was unwilling to share that information until the conclusion of the hearing.
            4. Next I asked Judge Symons to tell me if there were any particular areas of concern the court wished me to focus my argument on, and she said the court was unwilling to do that. In my professional opinion, these latter two rulings made it more difficult than it otherwise would be to mount an effective oral argument.
            5. At the conclusion of the hearing, Judge Symons announced that the judgment below was affirmed. There had been no discussion or other interaction between the two judges during the entire course of the hearing.
            I declare the above to be true under penalty of perjury.
Executed this first day of April, 2013 at Soquel, California.

                                                                                    Ed Frey


            As indicated in the attached Frey declaration, Appellant’s hearing was conducted by only two judges of the Appellate Division, both of whom attended the hearing having decided beforehand in favor of affirming the judgment below.
            Appellant raised the issue of his right to a three-judge panel at the outset of the hearing. The rationale presented by the presiding judge for the participation of only two judges was that there was no need for a third judge because (1) the law requires that any decision be supported by at least two judges, and (2) the decision by the two attending judges, having already been taken, would not be changed even if a third judge were present and disagreed with that decision. Declaration of Ed Frey, paras. 2 and 3.
            That rationale appears to defeat the purpose of holding a hearing; if the necessary two votes are already committed to a particular result, there seems to be no point of conducting any further proceedings. If the response to that proposition is: “Well, you might be able to change one judge’s mind at the hearing”, then two questions arise. First, by what authority can the Appellant be deprived of the opportunity to address his arguments to three judges instead of two? Having at least one judge of an appellate panel persuaded of or leaning toward the merits of the appellant’s side renders the hearing and decision dynamics more susceptible than otherwise to a reversal. Having one judge of a three-judge panel leaning toward appellant’s side would make it more likely than otherwise that one (or both) of the other judges would question his/her earlier thinking, or even change his/her mind. A two-judge panel deprives the Appellant of even the possibility of a third judge who is inclined to favor the Appellant’s arguments.
            Secondly, if one member of a two-judge panel changes his/her mind at oral argument, the result is an evenly divided panel, thus requiring a second hearing. Does that process not waste judicial and party resources?
            As Appellant shows below, the law contains several statutes, rules of court and case authorities which, taken as a whole, define due process as applied to misdemeanor appeals, and justify the granting of rehearing before a three-judge panel.


A. A Person Convicted Of A Misdemeanor Has A Right To Appeal To A Three-Judge Panel Of The Appellate Division Of The Superior Court
            A misdemeanor appeal, as provided under Penal Code Section 1466, is taken to the Appellate Division of the Superior Court. Id.; CRC Rules 8.850 ff. The statute creating appellate divisions provides that, as to each appeal, the presiding judge of the appellate division “shall designate the three judges who shall participate.” CCP Sec. 77(a) and (b). (Emphasis added.)
            There is no provision in the law which requires or permits participation (as opposed to decision) by only two judges of a Court of Appeal or the appellate division of the Superior Court. Indeed, in the Court of Appeal participation in the hearing by only two judges is, per se, grounds for granting a rehearing. Kelliher v. Kelliher (1950) 101 Cal.App.2d 226, 227.
            There is no authority for participation by only two judges in Superior Court appellate divisions, nor is there any rationale justifying any deviation from the requirement of three participating judges. On the contrary, all reasoning on the matter supports the right to a three-judge panel.

B. The Right To A Hearing Is A Crucial Element Of The Appeal
            The right to a hearing on appeal to the appellate division is established. CCP Sec. 77(b); CRC Rule 8.885.
            Oral argument on appeal is not a mere formality. The California Supreme Court states that “oral argument provides the only opportunity for a dialogue between the litigant and the bench.” Moles v. Regents of University of California (1982) 30 Cal.3d 867, 872. The court there goes on to quote various authorities approvingly:
  • Oral argument “promotes understanding in ways that cannot be matched by written communication.” Id. at 872.
  • Oral argument “provides a fluid and rapidly moving method of getting at essential issues.” Id. at 872.
  • “Mistakes, errors, fallacies and flaws elude us in spite of ourselves unless the case is pounded and hammered at the bar.” Id. at 872.
  • “No proof of the value of oral argument is more compelling, however, ‘than the fact that many judges find that the opportunity for a personal exchange with counsel makes a difference in result.’” Id. at 872. (Emphasis added.)
  • “This aspect of oral argument – the chance to make a difference in result – is extremely valuable to litigants. If oral argument is to be more than an empty ritual, it must provide the litigants with an opportunity to persuade those who will actually decide an appeal.” Id. at 872.
  • “The whole reason for there being more than one judge…is that the different perceptions, premises, logic, and values of three or more judges ensure a better judgment. In these differences and in the process of criticism, response, and resolution lies the virtue of the appellate process. The heart of collegiality is unremitting criticism.” Id. at 873.
  • “Roscoe Pound once wrote ‘Good oral argument before a bench not too large is excellent insurance against one-judge decisions.’” Id. at 874.

C. Conducting The Hearing With Only Two Judges Robs The Appellate Process Of Both The Appearance And The Reality Of Fairness And Legitimacy
            When only two judges appear for oral argument and, as here, announce to the appellant that the two judges have agreed to a particular decision already, it is inescapable that the judges are less susceptible to persuasion by oral argument than they would otherwise be.
            In effect, the two appearing judges have made a pact between the two of them before the hearing even begins, whether that pact is stated or unstated, that they will at least hesitate to be persuaded by anything said at the hearing to change the pre-hearing decision they have already agreed to. The potential pain and embarrassment involved in undermining the pre-hearing decision would be substantial if one of the two judges is inclined to change his/her mind during or after the hearing, particularly if that change of mind results in a one-to-one split, thus requiring a new hearing.
            Each of the two judges is thus not without bias. Each is prejudiced more than would otherwise be true in favor of a particular decision because of the natural desire to avoid the possibility of offending a judicial peer, or requiring a further hearing with three judges instead of two.
            Canon 3-B (5) of the California Code of Judicial Ethics provides that “A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, engage in… conduct that would reasonably be perceived as …bias or prejudice…”
            An objective observer, hearing the presiding judge announce at the outset that three judges are not necessary because the two judges present have already agreed to a particular decision, would readily conclude that the oral argument will be of no consequence.
            All litigating parties are entitled to independent judges. As defined in the Terminology section of the Code of Judicial Ethics “ ‘Independence’ means a judge’s freedom from influence or controls other than those established by law.” (Emphasis added).
            Further, “‘Impartiality’ …means maintenance of an open mind in considering issues that may come before a judge.” (Emphasis added).
            Presumably that open mind must be sustained at least until the matter has been submitted. Under CRC Rule 8.886, in misdemeanor appeals “A cause is submitted when the court has heard oral argument…” unless the parties stipulate otherwise.  There is no such stipulation present here.
            Canon 3-B (7) states that “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, full right to be heard according to law.” (Emphasis added). Arriving at the hearing having made a prior commitment to a fellow judge to arrive at a particular result clearly deprives the appellant of a “full right to be heard”.
            Judges are specifically authorized to take certain decisions and issue certain orders in chambers. CCP sec. 166. Making an agreement with a fellow judge to arrive at a particular resolution of a matter prior to the hearing on that matter is not included on that list in CCP sec. 166.

There is no justification in law or reason for deviating from the holding in Kelliher supra p.5, that participation of only two judges in the appellate hearing, in and of itself, is grounds for granting a rehearing. The fact that the Kelliher hearing was in the court of appeal instead of in the appellate division of the superior court is a distinction without a difference.
            As the authorities cited above amply demonstrate, a two-judge hearing violates the Appellant’s right to due process of law. For all the reasons set out above, this court should grant a rehearing before a full three-judge panel.

Dated: April 1, 2013

Respectfully submitted,

                                                                        Ed Frey, Attorney for Gary Allen Johnson

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