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California’s justices can take steps to streamline the appeals process, the state Supreme Court ruled unanimously Thursday, but not to the point of blunting oral argument by indicating that their minds are made up. “By suggesting the court of appeal already has decided the case without oral argument and that oral argument, if requested, would have no impact on its decision,” Chief Justice Ronald George wrote, “the oral argument waiver notice here has the potential to improperly discourage the exercise of the right to present oral argument on appeal.” The chief also held that it isn’t proper for appellate courts to threaten lawyers with monetary sanctions if they repeat arguments from their written briefs. Under the language of the notice at issue, he said, lawyers would face the “Hobson’s choice” of being sanctioned for re-arguing a point from briefs or having the court refuse to entertain an issue raised for the first time at oral argument. In People v. Pena, 04 C.D.O.S. 1078, San Luis Obispo solo practitioner Dan Mrotek chose not to seek oral argument in an appeal for a client’s conviction on drug crimes, but only because Division Two of the Fourth District Court of Appeal in Riverside said it needed no further discussion of the issues. The three-member panel had also issued a tentative opinion affirming Jose Pena’s conviction and sentence, and advised Mrotek he could face sanctions if he pursued oral argument anyway and raised issues already addressed in briefs. The Riverside court had said its waiver policy was aimed at focusing the legal issues and conserving scarce judicial resources. McGeorge School of Law professor J. Clark Kelso said the Supreme Court’s decision was a narrow holding but establishes limits for appellate courts. “You can’t really say you have a right to oral argument but then have the court beforehand saying we’re not going to listen to you, which is, in effect, the implicit message that was given out by that particular notice,” Kelso said. In his appeal to the state Supreme Court, Mrotek contended that the Fourth District’s waiver rule and sanctions denied his client’s rights to due process and to present oral argument. In agreeing, Chief Justice George said Thursday that the language used by the Fourth District goes “too far.” “Given this strong language,” he wrote, “we believe that a litigant or counsel reasonably could doubt whether oral argument would be ‘meaningful’ � and whether the appellate court would give ‘due consideration’ to oral argument � were appellate counsel to decline to waive argument.” Despite the setback for Division Two, which was ordered to refrain from using its current waiver ever again, George strongly encouraged the appellate courts to adopt programs and policies that attempt to streamline the appellate process. “We applaud innovations � that are initiated to maintain the quality and integrity of the judicial process,” he wrote. In particular, he praised the Fourth District’s decision to issue tentative opinions — a practice conducted by several appellate courts in California. Some panels will also constrict arguments to focus on issues of interest — as the Supreme Court did in this case. “So long as the appellate court’s decision is truly ‘tentative,’ that is, so long as the court is willing to ‘discard the writing if counsel’s arguments persuade the court that its tentative views were incorrect,’” George wrote, “the drafting and dissemination of a written tentative opinion alone does not itself infringe upon the right to present oral argument on appeal.” Mrotek said the decision provides guidance for other courts. “The use of this type of letter will be gauged based on this opinion. It’s just a benchmark,” he said. San Diego Deputy Attorney General Matthew Mulford, who argued the state’s case, called the ruling a win and a loss. While the high court threw out the Fourth District’s waiver notice, he said, it gave full backing to innovation by the courts to move cases along. “It’s a strong signal from the Supreme Court, and I would hope other courts follow Division Two’s lead to provide tentative opinions,” Mulford said. “We agree courts should be able to channel and streamline arguments. We see nothing wrong with that.” Thursday’s ruling sends the case back to the Fourth District for oral arguments. Mulford said he was “pretty comfortable that the result isn’t going to be changed.”

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