Thursday, September 1, 2022
Page 8
Perspectives (Column)
Court of Appeal Wastes Its Time, Needlessly Accords Anonymity to Parties
By Roger M. Grace
Div. Two of the Court of Appeal for this district on Tuesday supplied yet another example of why Chief Justice Tani Cantil-Sakauye’s call on June 10 for legislation to create more Court of Appeal seats should go unheeded.
The justices obviously have too much time on their hands if they can waste it as they did in the case initially known as Khairallah v. Khairallah.
Justice Judith Ashmann-Gerst said in an unpublished opinion in the case, B311690:
“Defendant and appellant Adila K. (Adila) appeals from the trial court’s January 26, 2021, order denying her motion to dissolve a domestic violence restraining order (DVRO). Because the DVRO at issue expired on May 15, 2022, we dismiss the appeal as moot.”
OK. Dismissing an appeal that’s become moot makes sense.
What doesn’t make sense is doing so in an opinion rather than an order. Ashmann-Gerst provided a needless five-page discourse on why the merits weren’t being reached.
Other divisions do the same in dismissing appeals based on mootness or for other reasons such as nonappealability of an order, sometimes in opinions that are longer, setting forth facts that don’t matter and contentions that aren’t reached.
Why?
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Why, it might also be asked, did Ashmann-Gerst refer to Adila Khairallah as “Adila K.” and her daughter, who obtained the DVRO, as “Amal K.”?
Not only did the parties file papers in the Los Angeles Superior Court and in the Court of Appeal under their full names, but their identities were publicly revealed in a July 27, 2021 opinion by Justice John L. Segal of this district’s Div. Seven in Abboud v. Khairallah. Although that opinion was not certified for publication in the Official Reports, it is publicly available online from various sources, including the website of the Judicial Council.
In asking why Ashmann-Gerst discerned a need to shield the identities of the parties, I don’t mean to imply that the justice offered no explanation. She did. But the reason she proffered is lame.
A footnote in her opinion says:
“Pursuant to California Rules of Court, rule 8.90, we refer to the parties by their first names and last initials. (Cal. Rules of Court, rule 8.90(b)(1), (11).) No disrespect is intended.”
Rule 8.90(a)(1) specifies:
“This rule provides guidance on the use of names in appellate court opinions.”
Note the word “guidance.”
Rule 8.90(b) adds:
“To protect personal privacy interests, in all opinions, the reviewing court should consider referring to the following people by first name and last initial or, if the first name is unusual or other circumstances would defeat the objective of anonymity, by initials only….”
The words “should consider” indicate that the rule is presenting something to think about.
The “following people” include, under subd. (b)(1), “protected persons in domestic violence-prevention proceedings,” and subd. (b)(11) encompasses “[p]ersons in other circumstances in which use of that person’s full name would defeat the objective of anonymity for a person identified in (1)-(10).”
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Does Ashmann-Gerst not appreciate that the “rule” sets forth no command? Expressly, it “provides guidance”; in subds. (b)1-9, it enumerates specific circumstances where appellate courts “should consider” shielding identities, and subds. (b)10-11 are catch-all categories.
Yes, Amal Khairallah is a protected person in a domestic violence-prevention proceeding (a person mentioned in (b)(1)) and, yes, using the full name of Adila Khairallah would render Amal Khairallah recognizable to some as the person who obtained the DVRO (coming under (b)(11)).
Nonetheless, the question remains why Ashmann-Gerst converted “Khairallah” to “K.”
Why does she invoke Rule 8.90 under circumstances where the parties have litigated in the trial court and in connection with the appeal in their true names, neither sought anonymity at any stage and, moreover, they are identified in a publicly available Court of Appeal opinion?
This goes beyond the irrationality of a slavish adherence to a stricture that, under the circumstances, cannot reasonably be applied. Here, there’s no stricture; the rule merely provides guidelines. Ashmann-Gerst robotically, foolishly, treats an alternative (bestowing anonymity)—which, under clear wording, is to be resorted to in the exercise of discretion—as if it were a directive, to be obeyed without regard to the facts.
And other justices do the same.
Perhaps Rule 8.90 should be refined to reduce mindless over-secretization of public proceedings—though ideally, that would not be necessary. Justices ought to be able to grasp that a guideline is not a mandate, and they should think before replacing an adult party’s last name with an initial.
The presumption should be against turning the states’ taxpayer-financed courts into de facto private dispute centers by according anonymity to participants based merely on their preferences or as the product of jurists irresponsibly creating secrecy where no public policy dictates doing so.
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