Wednesday, December 05, 2018

People v. Berch (Cal. Ct. App. - Dec. 5, 2018)

It's a day of mourning for President George H.W. Bush, and there's nothing from the Ninth Circuit and only one opinion from the California Court of Appeal.  It's also a grey day of drizzle down here in San Diego, so I thought about just staying quiet today.

But today's (sole) opinion nonetheless got me thinking.

It's another one of those cases that's technically moot because the defendant has already served the underlying sentence, but in which the Court of Appeal nonetheless exercises its discretion to decide the merits since the issue is likely to recur and otherwise escape review.  (Here, it's about whether a commissioner can revoke probation, and by the time the case was argued on appeal, the defendant had long ago served the relevant 120 days in jail.)  I'm generally pretty happy with that result.  The Court of Appeal gets the merits right (in my view), and it's also correct that unless you decide these things, the typical probation revocation sentence in this context is so brief that it'd otherwise evade review.

So everything's right with the world.  On this front, anyway.

But the fact that we decide cases like this made me wonder:  Why only decide these types of moot cases?  Why not decide others?  At least in the criminal context.  What are the appropriate limits?

The classic reason not to decide cases that are moot is because no one cares any more.  The winning side doesn't care because it already got what it wanted, so has nothing to lose, whereas the losing side doesn't care because it's got nothing to gain.

We nonetheless hear the merits of these types of appeal.  Even though, by the time the briefs are being written, they totally don't matter to the individuals actually involved in the case.

Why do we nonetheless hear the merits of these the-litigant-doesn't-actually-care appeals?  Because, in truth, we know that there are still people who actually matter that do care about the appeal.  And who have adequate incentives to still write really good briefs that allow us full information to decide the merits.  The public defender (or, as here, the appointed appellate attorney) wants to protect other clients.  The prosecutor (or, as here, the AG's office) wants to prosecute other defendants in the future more easily.  So they write good briefs, and we're confident we can accurately decide the case.

What's funny to me is that the same thing would be true even if the case became moot even before even the Notice of Appeal was filed.  Or even if there wasn't a particular case at the moment that raised the issue (e.g., there was only a prior case, or one that we knew for certain would exist in the future).  Yet we don't allow those cases to be heard.  They're actually moot.  Even though the briefs in those cases would often be just as accurate and informative as the briefs here.

So I wonder whether the decide-the-case-even-though-it's-technically-moot doctrine is actually internally consistent and treats like cases alike.  I'm confident we get cases like today's right.  But I wonder whether similar reasoning shouldn't permit us to decide other types of technically moot or "hypothetical" disputes.  Seems to me like maybe it should.

Just something to ponder on a (relatively) cold and rainy day in Southern California.