Lewis v. Superior Court

BROWN, J., Dissenting.

This is a simple case. Or at least it ought to be.

The majority freely acknowledges that in People v. Brigham (1979) 25 Cal.3d 283 [157 Cal.Rptr. 905, 599 P.2d 100] (Brigham) we held, and in *1276Moles v. Regents of University of California (1982) 32 Cal.3d 867 [187 Cal.Rptr. 557, 654 P.2d 740] (Moles) we reiterated that article VI, sections 2 and 3 of the California Constitution implicitly recognize the right to oral argument before rendition of a judgment.1 (Maj. opn., ante, at pp. 1253, 1254-1255.) The majority also acknowledges that “a decision to issue a peremptory writ in the first instance constitutes a judgment, and article VI, sections 2 and 3, apply to such proceedings.” (Maj. opn., ante, at p. 1256.) QED. The right to oral argument under article VI, sections 2 and 3 extends to the issuance of a peremptory writ in the first instance.

In reaching a contrary conclusion, the majority observes that “[t]he circumstance that neither Moles nor Brigham relied solely upon these constitutional provisions in holding that there is a right to oral argument on appeal . . . suggests the provisions independently do not confer such a right.” (Maj. opn., ante, at p. 1257.) With all due respect, I cannot follow the majority’s tortured reasoning. The fact that Brigham and Moles cited sources other than article VI, sections 2 and 3 of the California Constitution does not alter the fact that both cases relied on these constitutional provisions as well. (See Moles, supra, 32 Cal.3d at p. 872 [The provisions embody “the longstanding recognition in prior case law of the right of all litigants before the Supreme Court [and the Courts of Appeal] to argue their cases orally.” (Original italics.)].) Indeed, the very reason Justice Newman dissented in Brigham was that he disagreed with the majority’s constitutional analysis. (See Brigham, supra, 25 Cal.3d at p. 316 (dis. opn. of Newman, J.).) The majority’s novel approach will enable courts to dispense with just about every constitutional precedent they later deem “inconvenient” so long as that precedent did not rest “solely” on constitutional grounds.

Instead of following Brigham and Moles, the majority resorts to “decisions of this court [that] have observed that oral argument is unnecessary if a court decides to issue the peremptory writ without first issuing an alternative writ or order to show cause.” (Maj. opn., ante, at p. 1258.) Apparently, the majority has in mind Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [203 Cal.Rptr. 626, 681 P.2d 893] (Palma) and Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012 [269 Cal.Rptr. 720, 791 P.2d 290] (Bay Development), which are addressed earlier in its opinion. (See maj. opn., ante, at pp. 1241-1243.) The majority’s reliance on Palma and Bay Development is mystifying. Unlike Brigham and Moles, which squarely addressed the oral argument issue, neither Palma nor Bay Development *1277presented the issue, and, hence, this court’s observations were, of necessity, dicta. (See maj. opn., ante, at p. 1241 [“Our decision in Palma did not analyze the legal basis for the statement that there is no need to await oral argument when a peremptory writ is issued in the first instance, and we had no occasion in that case actually to decide whether an appellate court may deny the parties an opportunity to present oral argument before the court issues a peremptory writ of mandate or prohibition in the first instance.”]; id. at pp. 1242-1243 [“Although the foregoing discussion in Bay Development suggests that a Court of Appeal hears oral argument on petitions for a writ of mandate only after issuing an alternative writ or order to show cause, we had no reason in Bay Development to decide whether the parties must be afforded an opportunity for oral argument before an appellate court issues a peremptory writ in the first instance.”]; id. at p. 1243 [“Our subsequent decisions have not suggested that the foregoing dicta in Palma and Bay Development regarding oral argument were dispositive of the issue.”].)

If, as both Brigham and Moles hold, article VI, sections 2 and 3 of the California Constitution afford a right to oral argument, there is no conceivable basis on which to carve out an exception for peremptory writs in the first instance. To the contrary, both constitutional provisions refer simply to “a judgment.” (See ante, fn. 1.) As the majority concedes, a judgment is a judgment, however it is rendered. (See maj. opn., ante, at p. 1256 [peremptory writ in the first instance is a judgment within the meaning of article VI, sections 2 and 3]; see also Kowis v. Howard (1992) 3 Cal.4th 888, 899 [12 Cal.Rptr.2d 728, 838 P.2d 250] [Moles “suggested that the right to oral argument exists in any appeal or original proceeding decided on the merits.” (Italics added.)].)

Nor does treating judgments rendered by peremptory writs in the first instance as “second-class citizens” make sense from a policy standpoint. As real parties in interest observe, such a distinction would afford greater rights to parties who lost in the lower court (who would be guaranteed the right to oral argument on appeal) than to parties who won in the lower court (who would enjoy no such right prior to the issuance of a peremptory writ in the first instance). The majority’s only response to this rather obvious problem is its comforting assurance that a “remedy for such unfairness” is available but that it “is not uniformly to require oral argument before a peremptory writ is issued in the first instance, but rather to restrict the use of that procedure to the narrow category of cases described above.” (Maj. opn., ante, at p. 1261; see also id. at pp. 1240-1241, 1258-1259, 1260-1261 [describing the “narrow category of cases”].)

Unfortunately for real parties in interest, the “remedy” promised by the majority proves to be illusory, as the majority assiduously avoids any *1278attempt to determine whether a peremptory writ in the first instance was appropriate in this case. (See maj. opn., ante, at pp. 1240, 1261.) The majority’s reluctance to tackle this issue is understandable. The mere description of the facts of this case demonstrates that it does not fall within the “narrow category of cases” (id. at p. 1261) described by the majority. In particular, the petitioner’s entitlement to relief is not “ ‘obvious’ and ‘entirely clear’ under ‘well-settled principles of law and undisputed facts.’ ” (Ibid., quoting Ng v. Superior Court (1992) 4 Cal.4th 29, 35 [13 Cal.Rptr.2d 856, 840 P.2d 961].) The facts of this case are a far cry from the “extremely narrow circumstances” (maj. opn., ante, at p. 1261) in which a peremptory writ in the first instance might be appropriate.

The misuse of peremptory writs in the first instance is not an isolated problem. For example, despite our admonition in Ng v. Superior Court, supra, 4 Cal.4th at pages 34-35, as reiterated in Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223 [23 Cal.Rptr.2d 397, 859 P.2d 96], a number of Courts of Appeal have continued to issue peremptory writs in the first instance in published opinions. (See Jaycee B. v. Superior Court (1996) 42 Cal.App.4th 718, 730-731 [49 Cal.Rptr.2d 694] [“The facts and the law are almost, but not quite, ‘entirely clear.’ This is, after all, a case of first impression coming to us at the very inception of the litigation. We must admit that the ‘entirely clear’ standard laid down in Alexander and Ng justifying the issuing of a peremptory writ in the first instance is not quite met. Nevertheless, we think the facts are close enough to justify relief outside the ‘normal writ procedure.’ [Citation.]” (Original italics.)]; see also Catanese v. Superior Court (1996) 46 Cal.App.4th 1159, 1166 [54 Cal.Rptr.2d 280]; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683 [40 Cal.Rptr.2d 169]; Regional Steel Corp. v. Superior Court (1994) 25 Cal.App.4th 525, 529 [32 Cal.Rptr.2d 417].) How an opinion can resolve issues that are “ ‘obvious’ and ‘entirely clear’ under ‘well-settled principles of law and undisputed facts’ [citation]” (maj. opn., ante, at p. 1261) and yet still meet the criteria for publication escapes me. (See Cal. Rules of Court, rule 976(b).)2

Finally, there is one point on which I agree with the majority—our appellate courts are seriously overburdened. (See maj. opn., ante, at p. 1260 *1279& fn. 19.) Issues of workload, however, are not new ones. Justice Newman’s dissent in Brigham, written nearly two decades ago, bears repeating in this regard: “I dissent because I do not believe that traditional boundaries of the right to oral argument are the same as the boundaries that the California Constitution prescribes. [¶] From part II of the 1979 Annual Report of the Judicial Council we learn that ‘total filings’ in the Courts of Appeal were 6,411 in 1967-1968, 13,018 in 1977-1978. In this court the parallel totals were 2,959 and 3,881. [Citation.] [¶] Do not those and related statistics suggest that in this state the work of appellate judges may be suffering because of a serious overload? Many improvements will be essential, I think. It would be unfortunate if needed experiments and reforms were blocked by archaic assumptions as to how, in fact, oral argument most efficiently helps promote justice.” (Brigham, supra, 25 Cal.3d at p. 316 (dis. opn. of Newman, J.).)

I share many of the concerns expressed by Justice Newman. But one key fact remains—his views did not prevail. While I am not averse to reexamining the constitutional holdings in Brigham and Moles, I would do so forthrightly, not in a manner which draws an arbitrary and senseless distinction between appeals, alternative writs and orders to show cause, on the one hand, and peremptory writs in the first instance, on the other hand.

The orderly development of the law demands that we acknowledge what we are doing, when we are doing it. “ ‘There is enough confusion in the law. We should say what we mean and mean what we say.’ ” (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 428 [66 Cal.Rptr.2d 210, 940 P.2d 797] (dis. opn. of Brown, J.), quoting Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 57 [26 Cal.Rptr.2d 834, 865 P.2d 633].) Applying this sensible principle in this case, we should either candidly reexamine Brigham and Moles or follow their holdings here. We should not pretend they do not say something they do, in fact, say.3

The petition of real parties in interest for a rehearing was denied March 31, 1999. Kennard, J., and Brown, J., were of the opinion that the petition should be granted.

Article VI, section 2 of the California Constitution, which governs this court, provides that “[cjoncurrence of 4 judges present at the argument is necessary for a judgment.” Similarly, article VI, section 3, which governs the Courts of Appeal, provides that “[c]oncurrence of 2 judges present at the argument is necessary for a judgment.”

California Rules of Court, rule 976(b), provides as follows: “No opinion of a Court of Appeal or an appellate department of the superior court may be published in the Official Reports unless the opinion: [ft (1) establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies, or criticizes with reasons given, an existing rule; [ft (2) resolves or creates an apparent conflict in the law; [ft (3) involves a legal issue of continuing public interest; or [ft (4) makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law.”

In light of my conclusion that the Court of Appeal erred by issuing a peremptory writ in the first instance without affording real parties in interest their right to oral argument, I have no occasion to consider whether the Court of Appeal’s written opinion satisfies the requirements of article VI, section 14 of the California Constitution.