New rules* that took effect Jan. 1, 2005 include the final installment of a major revision to the appellate rules, undertaken by the Appellate Rules Project Task Force, chaired by Peter Belton of the AOC. Consultants included Jan Sherwood and Ellen Forman Obstler on juvenile law; and Cliff Gardner and Ron Matthias on criminal law. An AOC news release says it was a six-year project.
The changes were adopted by the Judicial Council on August 27, 2004. The document containing all the changes is 160 pages long and can be viewed at http://www.courtinfo.ca.gov/rules/amendments/jan2005.pdf.
Appeals in juvenile delinquency and dependency cases now are governed by rules 37 thru 38.6. Among other things, the rules cover confidentiality (Rule 37(b)), the record on appeal (Rule 37.1), briefs (Rule 37.3), and a writ petition to review an order setting a hearing under Welfare & Institutions Code section 366.26 (Rules 38 and 38.1). In several instances, the new rules simply refer to the criminal appellate rules and say that they govern.
Also, a new rule that took effect on July 1, 2004, sets forth the responsibilities of children's counsel in delinquency proceedings. (Rule 1479.)
Former Rule 40, on definitions, has been broken up, and the provisions regarding service and filing are in new Rule 40.1.
Rule 40.1(a) makes clear that every document filed in a court must be served on each party, and a proof of service must be filed with the court.
The major change in this area is to what used to be Rule 40(k) and, before that, Rule 40(n), the provision on when a document is considered to be "filed." (Interestingly, the Advisory Committee Comment does not note this as a change; it says that the new rule "restates" the former rule's provisions.) Now a brief is timely if the time to file it has not expired on the date of "(A) its mailing by priority or express mail as shown on the postmark or the postal receipt, or (B) its delivery to a common carrier promising overnight delivery as shown on the carrier’s receipt." (Rule 40.1(b)(3).) Priority mail replaces certified mail in the new rule. As a practical matter, most briefs sent by certified mail also were sent by priority mail, since First-Class Mail only goes up to 13 ounces.
Note: The rule makes clear that this does not apply to original proceedings. (Rule 40.1(b)(4).) So if you have an informal reply or a traverse due in a habeas proceeding, it must arrive at the clerk's office on or before the due date.
Rule 41, on motions, has undergone a few changes. A motion still is required to be accompanied by points and authorities, a rule which often is ignored. (Rule 41(a)(2).) Opposition to a motion now must be served and filed within 15 days after the motion is filed. (Rule 41(a)(3).) The former rule was 10 days after the motion was served.
Rule 43, on applications, no longer includes the phrase "matters of routine"; it now covers "all applications, including applications to extend the time to file records, briefs, or other documents, and applications to shorten time." (Rule 43(a).) To me, it's now even more of a mystery what constitutes an application as opposed to a motion. But at least it's clear that EOT requests still are "applications." The new rule also makes clear that we don't have to supply envelopes to the Supreme Court with applications, only to the Court of Appeal. (Rule 43(c).)
How many copies of an EOT application must we send to the Court of Appeal? My answer always was "one," because an EOT application was an "other document" under Rule 44. But for years, I've been sending three copies, because many clerks seemed to think that was required and I didn't care to argue about it. Now the Judicial Council has made it explicit in Rule 44: After setting forth the required numbers of copies for briefs, petitions and motions, the rule states that a party must file "an original and 1 copy of an application, including an application to extend time, or any other document." That applies to both the Court of Appeal (Rule 44(b)(2)(D)) and the Supreme Court (Rule 44(b)(1)(F)). So even though we still have to supply envelopes to the Court of Appeal (Rule 43(c)), it's now clear the clerks have to make their own photocopies of the EOT application to stuff into those envelopes, in those courts that stamp their orders onto the EOT application.
Rule 44 also has some new provisions on the number of copies of other documents, mostly filling gaps where the number wasn't specified in the old rule. A number of the new provisions are about amicus briefs and amicus letters; for example, an amicus letter supporting or opposing a petition for review under Rule 28(g) requires an original and 8 copies. (Rule 44(b)(1)(D).)
There also are new rules regarding exhibits in support of habeas corpus filings. In the Court of Appeal, a new provision states that we need to file "only one set of any separately bound supporting documents" accompanying a habeas filing. (Rule 44(b)(3).) The new rule allows the Court of Appeal to order parties to file more copies, either in the specific case or by local rule. And if the exhibits are attached to the habeas petition rather than separately bound, the normal rule of an original and 4 copies applies. (Rule 44(b)(2)(B).) In the Supreme Court, the new rule requires only "an original and 2 copies of any supporting document accompanying a petition for writ of habeas corpus, an opposition or other response to the petition, or a reply," unless the court orders otherwise. (Rule 44(b)(1)(C).) The commentary says this conforms to existing Supreme Court practice.
Rule 44 also has some new colors for brief covers, but none of the traditional ones have changed. Probably the most common of the new entries, in our practices, is an answer to an amicus curiae brief, which requires a blue cover. (Rule 44(c)(1).)
Rule 45, on extending and shortening time, has a number of changes, but the only significant change I noted is that the rule now explicitly states that a reviewing court cannot relieve a defendant from the failure to file "a timely statement of reasonable grounds in support of a certificate of probable cause." (Rule 45(e).) This used to be implicit in the statement that the court could not relieve a party from failure to file a timely notice of appeal, because in guilty plea cases, the statement of reasonable grounds served as an "intended notice of appeal." That changed last year, and under Rule 30, both a notice of appeal and a statement of reasonable grounds must be filed. As I pointed out last year, there's no explicit provision in Rule 30 as to when a statement of reasonable grounds must be filed, but the Judicial Council's intention probably is that the deadline is the same as for the notice of appeal (Rule 30.1(a)) -- 60 days after judgment -- and the new provision in Rule 45 seems to support that interpretation. I'd still say that if you have a timely notice of appeal in a guilty plea case but no timely statement of reasonable grounds, and you need a certificate of probable cause to raise your issue, there's an argument to be made that you can file the statement of reasonable grounds at any time.
There are some changes to Rule 56, governing original proceedings, including application of a word-count limit. This rule doesn't govern habeas petitions but does govern petitions for writ of mandate or prohibition. If you're filing such a petition, I suggest thoroughly reviewing Rule 56.
Regarding habeas corpus petitions in the reviewing courts, the primary rule now is Rule 60; the provisions of former Rule 56.5 have been moved there. The rule now requires that, if the petition or the memorandum of points and authorities refers to any matter in the supporting documents, the index tab and page must be cited. (Rule 60(b)(5).) And if there was an evidentiary hearing on a habeas petition in the superior court, a certified transcript of that hearing must be filed with the habeas petition in the reviewing court. (Rule 60(b)(6).)
Rule 76.5, on appointment of appellate counsel, now officially recognizes that the right to appointed counsel exists in more than just criminal cases. (Rule 76.5(a)(1).)
There are some minor changes to the rules on letters requesting publication (Rule 978) or depublication (Rule 979) of Court of Appeal opinions. If you're planning to write such a letter, I suggest checking the rules.
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*All rule references are to the California Rules of Court.
Martin Kassman / marty@kassman.com
© Martin Kassman 2005