A Hegelian dialectic rarely expressly appears in the pages of the California Appellate Report. And I can't in all honesty say that I've reached an appropriate synthesis on the following topic that's worthy of sharing with the world.
But let me nonetheless express my own personal yin and yang about the following opinion by Justice Robie.
On the one hand, I'm totally on board. Sure, Steven Winn doesn't want genetic testing performed pursuant to a discovery order in a paternity case. I understand that. But that's not an appealable order. Nonetheless, Winn goes ahead and files an appeal.
Justice Robie rightly concludes that there's no jurisdiction over the purported appeal since there's not a final judgment. And when Winn asks -- as one would totally predict -- that the Court of Appeal treat the appeal as a writ petition in an attempt to cure the resulting deficiency, Justice Robie declines to do so. "To treat the instant appeal as a writ application would obliterate that bright line and encourage parties to knowingly appeal from nonappealable orders, safe in the knowledge that their appeal will be ‘saved by the appellate courts.’ We cannot condone or encourage such practice." Good quote. Good reasoning.
So all this strikes me as particularly appropriate. Especially in a case, as here, in which it's pretty clear that what we're dealing with is a nonfinal order. So I appreciated Justice Robie's response. Not every appeal should be saved from dismissal by treating the thing as a writ petition. The rule exists for a reason. That's why we should encourage people to file appeals for final judgments and writs for nonfinal orders, rather than appeals (with an alternative claim that writ relief is appropriate) for everything.
So that's the yin.
But at the same time, there's a yang. Albeit one that I only felt a couple of minutes after I finished the opinion. Which is this:
I understand for policy reasons why Justice Robie doesn't want to treat the thing as a writ petition. But as a writ petition, isn't it a pretty darn good one? Justice Robie says that there's no need for writ relief because "if the genetic testing excludes Winn as the children’s father, the case will be over and there will be no need for any review. If, on the other hand, paternity is established following the genetic testing, then Winn will have an adequate remedy on appeal from the judgment determining him to be the children’s father and ordering him to pay child support for them." And that's true. As far as it goes.
But there's another reason for writ relief that seems to me both equally important and -- critically -- that's not at all adequately addressed by post-judgment appellate review: namely, Winn's interest in not having the testing go forward and getting a result. Winn's substantive claim is that the child at issue was born to a mother (Jeanelle) who was married to another man (Gregory) during the marriage, and hence that the child that Winn is accused of fathering is, as a matter of law, Gregory's. Thus, Winn argues, he shouldn't be tested, since he is under no obligation to pay child support for a child that the law considers to be Gregory's.
Now, there are a lot of problems with that position on the merits, including but not limited to the distinction between the conclusive and rebuttable presumptions in family law, a prior judgment involving Gregory and Jeanelle, and the reality that, as a factual matter, prior genetic testing has conclusively determined that the father of the child is not Gregory. But ignore all that for now, and assume for purposes of argument that Winn is correct on the merits. Doesn't that make for a pretty good writ petition? Sure, we could always review an eventual judgment. But, by then, Winn may well have already been found to be that actual father of the child. And even if we can thereafter, on appeal, reverse a child support judgment against him, that doesn't solve the dignitary and other interests that result from the factual declaration that Winn is the father. All of which the conclusive presumption was designed to avoid and all of which remain notwithstanding the reversal of the eventual child support judgment below.
So while I'm strongly persuaded by Justice Robie's adjudication of the appeal, at the same time, I'm not so convinced that the issue isn't a proper matter for writ relief. And yet, simultaneously, I totally buy Justice Robie's argument that we can't just make every "appeal" into a writ petition without encouraging a socially deleterious practice of just appealing everything and requesting writ relief in the alternative.
So those are the two competing sides of the equation. I can imagine, I guess, two possible syntheses. One is to say that, sure, it'd perhaps be a valid writ petition, but we've decided to punish you for filing an appeal and on that basis not grant you relief to which you'd otherwise be entitled if you followed the rules. That would make logical sense, but potentially be overly harsh. Especially given the stakes involved. The other would be to say that we won't treat your appeal as a writ, but you're always free on remand to file a writ, which we may well go ahead and grant given the merits. But while that may be doctrinally consistent, it still seems to encourage the filing of an appeal (and resulting benefits like automatic stays) without any corresponding downside.
So I'm torn. I like what Justice Robie's done. I really do. But I can't help the nagging feeling that there's more here worth exploring. And that, in fact, there are some pretty tough calls to be made, none of which is entirely perfect and each of which results in both benefits and detriments.
So that's my take. In short, there's a lot here. And, sometimes, even seemingly easy resolutions that totally persuade me aren't, in fact, so totally easy.