The Opening Brief

In a decision that the Ninth Circuit published “as a reminder that material breaches of our rules undermine the administration of justice and cannot be tolerated,” the court dismissed an appeal for counsel’s failure to submit a brief that complied with the rules.  According to the court, the brief did not articulate the standard of review; did not contain a table of contents, table of authorities, citation to authorities, or accurate citation to the record; and made “virtually no legal arguments.”  (Sekiya v. Gates, November 29, 2007)

The panel was clearly upset with counsel’s failure to present anything approaching a useful brief.  On the other hand, it did give the panel the opportunity to quote from the court’s earlier decision in N/S Corp v. Liberty Mutual Insurance Co. to the effect:  “we must insist that parties not clog the system by presenting us with a slubby mass of wordsrather than true brief.”  Somehow, I doubt that no matter how long I practice law, I will never have the opportunity to use the phrase “slubby mass of words” in an appellate brief.  It is nice to know, however, the if occasion does arise that I have this published Ninth Circuit decision to cite as authority.

My former classmate and one-time coworker, Joe Maloney, pointed this case out to me.  Joe now practices out of Auburn, California, after a long stint at the US Attorney’s office in Sacramento.

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UPDATE:  As an interesting footnote to the case, the Ninth Circuit’s docket contains an entry cancelling oral argument because “The court is of the unanimous opinion that the facts and legal arguments in this case are adequately presented in the briefs and the record, and the decisional process would not be significantly aided by oral argument.”

Given what the court had to say about the appellant’s brief, I suppose they were talking more about the record than the briefs in the case!

In a ruling filed today, the Fourth District Court of Appeal ruled that failure to raise the issue of exhaustion of administrative remedies in the trial court operates as a waiver and the issue cannot be raised for the first time on appeal (Mokler v. County of Orange).

Since the California Supreme Court’s 1941 decision in Abelleira v. District Court of Appeal, 17 Cal. 2d 280, failure to exhaust administrative remedies has been treated as a jurisdictional defect.  The Mokler court engaged in a close reading of Abelleira and concluded that not all jurisdictional defects are created equal.

The court noted that there is a split of authority in the courts of appeal on this issue.  Given this split, you should look for this issue to appear sometime soon on the California Supreme Court’s docket.

In a comment to my post on new arguments on appeal, Pennsylvania Appellate Blog  expresses surprise at the 9th Circuit’s conclusion that a party can raise new “arguments” (as distinguished from a new “claim”) on appeal.  In fact, however, the United States Supreme Court has also noted the distinction between new “arguments” and new “claims” — ruling that litigants are free to make new arguments in support of their legal claims:

We must also reject respondent’s contention that the regulatory taking argument is not properly before us because it was not made below. It is unclear whether petitioners made this argument below: Portions of their complaint and briefing can be read either to argue a regulatory taking or to support their physical taking argument. For the same reason it is equally ambiguous whether the Court of Appeal addressed the issue. Yet petitioners’ regulatory taking argument stands in a posture different from their substantive due process claim. 
 
Petitioners unquestionably raised a taking claim in the state courts. The question whether the rent control ordinance took their property without compensation, in violation of the Fifth Amendment’s Takings Clause, is thus properly before us. Once a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.   Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 78, n. 2, 100 L. Ed. 2d 62, 108 S. Ct. 1645 (1988);Gates, supra, at 219-220;Dewey v. Des Moines, 173 U.S. 193, 197-198, 43 L. Ed. 665, 19 S. Ct. 379 (1899).Petitioners’ arguments that the ordinance constitutes a taking in two different  [*535]  ways, by physical occupation and by regulation, are not separate claims. They are, rather, separate arguments in support of a single claim — that the ordinance effects an unconstitutional taking. Having raised a taking claim in the state courts, therefore, petitioners could have formulated any argument they liked in support of that claim here.
Yee v. City of Escondido, 503 U.S. 519, 534-535 (U.S. 1992)

The Ninth Circuit’s decision this week in in California Pro-Life Council v. Randolph makes an interesting distinction between new arguments and new claims on appeal — the former are allowable but the latter forbidden.

At issue is whether the nonappealing party (the state in this case) was permitted to raise a new argument on appeal that they had not made in the District Court.  The District Court had ruled that a presumption in the state’s regulations was not rebuttable.  On appeal, however, the state argued for the first time that this presumption was rebuttable.  The appellant attacked this as a “new argument on appeal.”

The court noted in a footnote, however, that the legal conclusions of the District Court in this case were reviewed de novo, and that there was no bar to the state raising a new argument on appeal.  The bar to new matters on appeal, according to the panel, was limited to new claims.

A later footnote pointed out, however, that any arguments (new or otherwise) must be presented in the parties’ opening briefs.  New arguments raised for the first time in a party’s reply brief will not be considered.

I am currently involve in a case before the California Supreme Court (representing amici) that raises this interesting issue.  (The case concerns whether a charge imposed on water rights applicants is a fee or a tax under Proposition 13.)

The petitioners have located a brief filed by a different state agency in a different case that argues for a particular analysis on whether a charge is a fee or a tax.  The problem is that this analysis is very different from what the state is arguing in the current case.  Petitioners have lodged this contrary analysis with the Supreme Court as part of a motion for judicial notice.

The state, of course, objects to judicial notice in this instance.  One of the arguments they raise is that judicial estoppel cannot apply because “Agencies of the State of California are separate legal entities and cannot bind each other in litigation.”

I find that argument troubling on a number of different levels.  First, unless we are talking about different constitutionalagencies, the agencies involved are part of the Governor’s executive staff.  In that instance, it is hard to understand how the agencies could be treated as separate legal entities — especially where they are all represented by the Attorney General who takes an active role in formulating the legal policy argued in the brief.

At a more fundamental level, how do we explain to the public that state agency A can make an argument to the California Supreme Court regarding interpretation of the California Constitution that is diametrically opposed to the argument being made by state agency B?

On the other hand, I suppose, we need to worry about centralizing all legal policy-making authority in the hands of the Attorney General.  The Supreme Court has already ruled that as between the Governor and the Attorney General, the Governor is the final arbiter of the state’s public policy position in litigation.  People ex rel. Deukmejian v. Brown, 29 Cal. 3d 150 (1981).

Perhaps we need a “Solicitory General” at the state level that can represent all executive state agencies before the State Supreme Court.  The next question, however, is whether the SG would answer to the Governor or the Attorney General — and that is a whole different debate.