Tuesday, August 14, 2012

In Re Marriage of Hofer (Cal. Ct. App. - Aug. 13, 2012)

I get why the Court of Appeal does what it does here.  John Hofer doesn't sound like a very nice guy.  I too am not pleased with how he's treated his ex-wife during their dissolution proceedings.  Nor how he's treated the judiciary and its orders.

Nonetheless, I still might not have stretched to dismiss his appeal under the disentitlement doctrine.  The appeal was easy enough to dismiss on the merits.  As the Court of Appeal indeed does, albeit in dicta.

There are downsides to dismissing appeals for disentitlement.  Sometimes litigants legitimately object to (and perhaps even disobey) judicial orders.  That may sound contemptuous.  Particularly when the judiciary is the one responsible for deciding whether that's in fact the case.

So there's at danger that, on occasion, the disentitlement doctrine may result in the dismissal of an appeal with merit.  An appeal by someone whose conduct may not have been perfect but who nonetheless should prevail on appeal.

I'm fairly certain that's not the case here.  And, again, I more than see where the Court of Appeal is coming from.  It wants to spank Mr. Hofer, and sticking the disentitlement doctrine in his face does exactly that.  It's a doctrinal way of saying "We don't like you.  At all."  An understandable sentiment.

But, in most cases, I'd nonetheless be inclined to sanction parties (and perhaps their counsel) before using the disentitlement doctrine.  It's a valid doctrine.  But one that should be applied sparingly.

Perhaps not even in fairly egregious cases.  Like this one.