An Arcane Point, Well Expressed

"'But all the fun's in how you say a thing.'"
-- Robert Frost, "The Mountain" [North of Boston (1914)]

Once in a while, if you are an appellate judge with more than a little learnin’, you just have to let yourself go. You simply must write an opinion in which you carefully and thoroughly explain why the appellant’s case must be dismissed, because his attorneys have fallen victim to a “particularly well-camouflaged trap for the unwary” secreted within a critical procedural rule. And while you are about it, you must pepper the opinion with witticisms, citations to Shakespeare and the Bible, and passing remarks on words that are needed but oddly unavailable in standard English. Yesterday, Presiding Justice Sills of Division Three of the Court of Appeal for the Fourth District let himself go in just that way.

Every appellate practitioner knows that the most critical deadline of them all is the deadline to file the Notice of Appeal. In most jurisdictions, including California, that time limit is jurisdictional: the appellate court has no power even to consider the matter if the notice is not filed on time, and missing it by even one day is fatal no matter how meritorious the arguments on appeal might otherwise be. At the outset of his opinion, Justice Sills summarizes the substance of the problem that leads to dismissal of this appeal:

Here’s the trap: Most of the time, unsigned minute orders granting a dismissal motion (as happens, for example, when the trial court grants a motion for summary judgment) are not appealable. So adversely affected counsel do not have to worry about the time running on their right to appeal. They can confidently sit back until a formal signed order or judgment of dismissal is filed.

Subdivision (a)(3) of section 904.1, however, creates a counterintuitive exception, because it makes even unsigned minute orders granting motions to dismiss for inconvenient forum directly appealable. Further, such an order -- unlike some other appealable orders under section 904.1 -- constitutes a “final judgment” as the term is defined in section 577. But, and here’s the real trap -- as a final judgment it cannot be attacked by a motion for reconsideration. In fact, the trial court does not even possess the authority to undo or amend it, on its own motion or prompted by a litigant.

These principles will force us, reluctantly, to dismiss this appeal in this most convoluted of cases.

An extended procedural summary follows, but the reader will soon perceive that the temptation to wax scholarly and poetical is not to be resisted:

We say “reluctantly” dismiss, because, as anyone who reads this opinion through to the end is about to learn, California’s law of appellate jurisdiction is full of fiendishly fine distinctions worthy of the most legalistic of medieval clergy. We have turned this case around like a prism hoping to find the light that might save this appeal. Alas, we have not found it despite any number of quick flashes. On analysis they all turned out to be evanescent.

Fascinating displays of erudition begin to manifest themselves, as for example in the court’s footnote 3, invoking the Bard of Avon:

In Shakespeare’s Henry V, there is an early scene where the Archbishop of Canterbury delivers a long, tedious and virtually incomprehensible speech to the new king (incomprehensible unless you have the text in front of you and you’ve taken a graduate seminar on the law of royal succession in medieval France) on a topic that even many lawyers would find arcane, choice of law. (The archbishop of Canterbury basically rebuts the idea that the “Salique” law of Germany (sometimes also spelt “Salic” or “Sallic”), which bars any female succession at all, applies to preclude English Henry’s claim to the French throne). But upon that fine, pedantic legal distinction would “awake” the “sleeping sword of war,” and, as a consequence, later in the play, 10,000 French knights and soldiers would get slaughtered in the mud at Agincourt. In the case before us, by contrast, the worst thing that can happen as a result of the fine pedantic distinctions on which this case turns is that a case which should be otherwise considered by a court in one state will be considered in another, which is not quite the same thing as dying in battle from a gale of Welsh arrows.

And on and on through 37 pages. Later references include the Biblical books of Luke and Daniel (the latter taking up the laws of the Medes and Persians), more Shakespeare (the come-uppance of Cardinal Wolsey in Henry VIII), Stephen Sondheim and, with seeming inevitability, the linguistic analysis of Lewis Carroll’s Humpty Dumpty. Innumerable decisions from appellate courts within and without the State of California are taken up for consideration. Moreover, the good justice establishes his familiarity with lingua hip-hoppa:

For the appellate court, then, to deliberately scramble these distinctions is to engage in a kind of unseemly antinomianism that is, at root, so at odds with the Legislature’s and the Judicial Council’s handiwork that the net effect, in current parlance, is to “diss” that handiwork.²⁴

²⁴ For the sake of future readers just in case the word goes out of style soon, it is a short verb meaning "to show disrespect to." The problem is that modern English does not have a short verb that conveys the idea of deprecation so directly -- one practically has to go back to the era of King James to find something close. Contemn? Calumniate?

Enough. As is often written in non-legal weblogs, “Read the Whole Thing.”

The decision in Quest International Inc. v. Icode Corp. (Sept. 22, 2004), Case No. G032276, can be accessed at these links in PDF and Word formats. Because those links are not permanent -- and in honor of Justice Sills’ footnote 26:

²⁶Unlike doctors, appellate courts don’t bury their mistakes; we leave them embalmed for analysis by future pathologists for the rest of eternity.

-- Decs&Excs has also uploaded the decision to maintain its availability here.

Comments

[david giacalone]

I've been thinking: isn't this really "a good point, arcanely said"?