Sixth Appellate District: Oral Argument, October 20, 2011, The Flanders Foundation v. City of Carmel-by-he-Sea, et al. (H035818)

UPDATE: The justices assigned to hear this case on the Monterey calendar are (in seniority order): Mihara, Acting P.J. (Presiding Justice) ; Duffy, J.; and Walsh, J. (pro tem)

ABSTRACT: ORAL ARGUMENT is scheduled for The Flanders Foundation v. City of Carmel-by-he-Sea, et al. (H035818) on Thursday, October 20, 2011 at 9:30 A.M. at the Monterey County Board of Supervisors Chambers, 168 West Alisal St., 1st Floor, Salinas, CA. “Oral argument, a tradition that dates back to the early days of the English court system, gives justices the opportunity to question counsel in person concerning the issues raised in their briefs. The court provides each side with a set amount of time for oral argument. It is customary for justices to interrupt an argument at any time to ask the attorney to address a specific point. The justices ask such questions to clarify issues of concern as they consider how to decide a case.” After the panel of three Justices has heard oral argument, “a designated panel member prepares an opinion, which is a written statement of the panel’s decision.” “Under the California Constitution, the final majority opinion and any opinions expressing agreement (concurrence) or disagreement (dissent) must be filed within 90 days after the case has been submitted.” Information and links to more information regarding the Justices of the Sixth District Court of Appeal, the 6th District and the California Courts of Appeal process is provided.

Justices
6th District Court of Appeal

Presiding Justice Conrad L. Rushing

Associate Justice Eugene M. Premo

Associate Justice Franklin D. Elia

Associate Justice Patricia Bamattre-Manoukian

Associate Justice Nathan D. Mihara

Associate Justice Wendy Clark Duffy

About the 6th District

A Visitors’ Guide to the California Courts of Appeal

The California Courts of Appeal were established by constitutional amendment in 1904 and are California’s intermediate courts of review. The primary function of the Courts of Appeal is to ensure that the law is interpreted and applied correctly.

California has 6 appellate districts composed of 9 court sites, 19 divisions, and 101 justices. More than 22,000 appeals and original proceedings were filed in the Courts of Appeal during the 2001–2002 fiscal year, representing a nearly 30 percent increase in Court of Appeal filings over the last decade.

WHAT IS AN APPEAL?
An appeal is a request to a higher court to review a decision made in a completed trial or proceeding. Most legal disputes are initially decided by superior courts or certain administrative agencies. After the trial or proceeding is completed, if the losing party is dissatisfied with the outcome and believes that the superior court or administrative agency made an error that adversely affected the result, it may ask the trial court judge to overturn the decision or to order a new trial. If the judge denies the request, the losing party may file an appeal in the Court of Appeal.

ROLE OF THE COURTS OF APPEAL
The California Courts of Appeal review the vast majority of appealable orders or judgments from a superior court. The primary exception arises following a judgment of death, which is automatically appealed directly to the California Supreme Court. Courts of Appeal also do not ordinarily review decisions that are within the jurisdiction of the appellate division of the superior court, such as misdemeanor convictions and limited civil cases.

The Courts of Appeal decide questions of law, such as whether the superior court judge applied the law correctly in a case. The Courts of Appeal do not hear testimony or retry cases. An appeal from a superior court judgment is decided based on the record from the original trial or proceeding.

Issues brought to a Court of Appeal for review commonly include claims such as an incorrect ruling on admissibility of evidence, incorrect application of a law or regulation, unconstitutionality of a law or regulation, improper jury instructions, and insufficient evidence to support the verdict.

HOW THE APPEAL PROCESS WORKS
FILING A NOTICE OF APPEAL
An appeal generally is heard in the appellate district in which the superior court is located. To begin the process, the appealing party files a written notice of appeal with the clerk of the superior court in which the proceeding took place. In civil cases, both the appellant and the respondent (the opposing party) must file notices with the clerk of the
appellate court within prescribed periods of time, designating which transcripts or papers filed in the superior court are to become part of the appellate record. In criminal and juvenile cases, transcripts are prepared automatically. All parties are notified once the record on appeal has been filed with the Court of Appeal.

BRIEFS
From the date the record was filed, the appellant has a specified period of time within which to file an appellant’s opening brief, depending on the type of case. A brief is a written argument that a party or an attorney prepares for the court. It details issues raised by the appellant, including challenges to superior court rulings or findings, and refers to applicable statutes and previous cases to support the appellant’s position. The respondent is then given an opportunity to file a brief in response, and the appellant may then file a reply brief.

APPEALS PANELS
Once all briefs have been submitted, the case is considered “fully briefed” and is ready for assignment to a panel consisting of three justices within a district or a division.

Cases are assigned to justices randomly, based on a rotation system that equalizes the numbers of cases in which the justices participate. On average, 10 to 15 appeals are assigned to each justice every month, in addition to a monthly caseload of roughly 7 to 10 original proceedings.

After the case is fully briefed, it is placed on the court calendar, and a justice on the panel typically is designated to write a memorandum discussing the issues and facts of the case. Each district or division schedules oral arguments on a limited number of days each month. The deputy clerk prepares the monthly calendars and notifies the parties of the date, time, and place of the hearing. Before hearing oral argument, the justices review the briefs and memorandum that have been prepared concerning the appeal

ORAL ARGUMENT
Oral argument, a tradition that dates back to the early days of the English court system, gives justices the opportunity to question counsel in person concerning the issues raised in their briefs. The court provides each side with a set amount of time for oral argument.

It is customary for justices to interrupt an argument at any time to ask the attorney to address a specific point. The justices ask such questions to clarify issues of concern as they consider how to decide a case.

OPINIONS
After the panel has heard oral argument or oral argument has been waived by the parties, a designated panel member prepares an opinion, which is a written statement of the
panel’s decision.

Writing an opinion is an integral part of the decision-making process. Draft opinions are circulated among all three justices until an agreement is reached on a majority opinion. A concurrence of two out of the three justices is necessary to form a majority.

The panel also decides whether to certify the opinion for publication. In general, an opinion is published if it establishes a new rule of law, involves a legal issue of continuing public interest, criticizes existing law, or makes a significant contribution to legal literature. During fiscal year 2001–2002, 7 percent of California Court of Appeal opinions were ordered published.

Under the California Constitution, the final majority opinion and any opinions expressing agreement (concurrence) or disagreement (dissent) must be filed within 90 days after the case has been submitted.

Published opinions establish precedent and must be followed by all California superior courts. Unpublished opinions do not establish precedent and may not be cited as authority to support an argument.

REVIEW OF APPELLATE DECISIONS
Decisions of the Courts of Appeal are subject to discretionary review by the California Supreme Court as well as to review in the U.S. Supreme Court based on the U.S. Constitution and federal statutes.

STEPS IN THE APPEAL PROCESS
Superior court decision made.
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Losing party files notice of appeal with superior court.
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Superior court clerk notifies other parties and Court of Appeal.
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Superior court record is submitted to Court of Appeal.
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Both appellant and respondent submit written briefs presenting their legal arguments.
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Case is placed on calendar and assigned to a panel of three Court of Appeal justices.
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Panel of justices reviews superior court record, written briefs, and applicable law and precedent.
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Oral argument is heard, unless waived by litigants.
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Concurrence of two of the three justices is necessary to form a majority.
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Opinion is written and filed.
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Petition for Rehearing
Losing party may ask Court of Appeal to rehear case.
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Petition for Review
The losing party may file a petition for review with the California Supreme Court, which grants review in 4 to 5 percent of cases each year.

SOURCE: A Visitors’ Guide to the California Courts of Appeal
Published by the Judicial Council of California
Administrative Office of the Courts
455 Golden Gate Avenue
San Francisco, California 94102-3688
415-865-4200

ADDENUDM:
Sixth District Court of Appeal
333 West Santa Clara Street
Suite 1060
San Jose, CA 95113

Phone: (408) 277-1004
E-mail: Sixth.District@jud.ca.gov