I love the California Court of Appeal.
Four weeks ago, I posted a lengthy critique of Justice Rylaarsdam's opinion that held that appointed counsel should not file Anders/Wende briefs raising "arguable but unmeritorious issues". I ended the post by seeking input from others on the Court of Appeal (and elsewhere) on this issue, which is an important one.
Yesterday afternoon, Justice Aronson did precisely that. Telling me -- nay, everyone -- his thoughts on the matter. Disagreeing with Justice Rylaarsdam, and holding that appointed counsel should continue to file such briefs.
Justice Aronson articulates his reasons for that conclusion a little differently than I did. But we end up in the same place. He says that "[w]hile an argument may prove unmeritorious, that is for the court ultimately to determine," not counsel, and that's the heart of things. As long as (in my view) the case raises a nonfrivolous argument, you should at least identify it. Then it's the Court of Appeal's job to sort it out.
We've now got to opinions from the exact same division -- the 4/3 -- going opposite ways on an issue that comes up hundreds of times a year. The California Supreme Court should grant review and make a final decision as to which position should prevail. What you do as an attorney shouldn't depend on what panel you guess you'll draw. Nor should the prevailing procedure necessarily be the one that's the "least common denominator" or the one adopted either internally (by you) or by an external organization (e.g., an appellate defender's officer) in light of the conflicting holdings of the Court of Appeal. It's for the judiciary to say whether "arguable but unmeritorious" issues should be raised, as well as to interpret what we exactly mean by that.
And that's exactly what the California Supreme Court should do.
