Rule 8.260. Opinions [Reserved]

So specifies title eight rule 8.260, meaning that the opinion section of title eight rules of court has not been established yet, nor the formal policy governing said opinions and how they are supposed to be applied to litigants.

Anyone who is familiar with our Fourth District Court of Appeal in Riverside knows that the court has a policy of releasing tentative opinions before they are binding to allow a litigant the opportunity to disagree at oral argument.

Most litigants can agree that in theory this is a good policy. It provides litigants with an overview of the direction that the panel is leaning to before an official subjective opinion is reached. However, as many of us had the considerable misfortune to experience the court of appeal fails to address any mistakes, ambiguities or outright fabrications at oral argument. Instead the time of the litigant is wasted, as is the time of the three panel judiciary who has to reconstitute itself every so often in a judicial conga shuffle, to allow a different panel to hear oral argument. The fact is no one likes to hear that they have made a mistake and a justice will simply not correct his/her errors. It has no relevance to their personal life so is not an issue that is deemed important.

Title eight rules of court have so far not adopted a formal policy, when it comes to appellate court opinions; however, precedent cases have specified that oral argument should be an opportunity for litigants to persuade those who will actually decide an appeal, Moles v Regents of Univ. of Cal. (1982) 32 C3d 867, 872, 187 CR 557. Unfortunately as most litigants and parents are aware, it merely is an empty ritual, consisting mainly of the reconstituting shuffle of the judiciary.

The current notice that accompanies oral argument is itself a procedural and substantive due process violation as it prohibits supplemental briefing. An example has been included below. Supplemental briefing is allowed pursuant to title eight rules of court and cannot be curtailed by a notice that is not defined in any title eight rules of court.

Civil law, once a statement of decision has been requested by a litigant, allows a litigant the right to present objections and point out the controverted issued and ambiguities in a tentative statement of decision which similar to a tentative appellate opinion is not binding upon the court.

In appeal court law most litigants, unless they employ an attorney, are not weaved in filing petitions for rehearings or motions to recall a remittittur which are usually routinely denied by a court of appeal without correcting any fictitious opinions.

Instead of wallowing litigants in the false premise that the law will actually be addressed at oral argument, a policy of allowing a litigant the right to point out ambiguities, failure to address controverted issues or just simple mistakes should be implemented. It could be in the format of a short application to the court no more than 5 pages in length and would be required to address any of the above within 10 days of receiving the tentative non binding opinion. That is of course if a litigant is dissatisfied with the tentative opinion it has received. The Court of Appeal would be required to address the matters raised within 20 days of receiving a litigants applications by modifying the opinion. The litigant would still have the option of pursuing oral argument if the court of appeal failed to address the application.

In this manner the procedural and substantive due process has a more equitable distribution across the board than a meaningless judicial shuffle at oral argument. Perhaps more time would be taken to prepare opinions that actually reflected the law and not subjective bias, if such a policy were implemented.




By San Bernardino and Riverside Superior Court News Posted in Family Law, Law, News

One comment on “Rule 8.260. Opinions [Reserved]

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