O.C. Appeals Court Finds Itself Subject to Review

A wall clock ticks softly as lawyers rise one by one from rows of restored church pews to argue in front of three justices in black robes.

In one case, a lawyer tries to get a crack addict’s robbery conviction overturned. In another, attorneys argue technicalities over who’s to blame for a little boy left paralyzed when his mother’s car was hit by a stolen Mercedes chased by police.

These are not trials. There are no juries, no witnesses, no dramatic closing arguments. All that was done before, in other courtrooms, before other judges.

This is instant replay. Here the cases are reviewed, not presented. It’s the judicial version of quality control, where trial judges, juries, prosecutors and other trial attorneys are held to account for the way they applied state laws, whether both sides got a fair hearing, whether justice was, indeed, achieved.

This is the 3rd Division of the 4th District Court of Appeal of the State of California, a sterile, bureaucratic designation for six justices who work in rotating teams of three within a Victorian-style building in Santa Ana’s historic, downtown French District.

For the most part, their work goes unnoticed. Few of the nearly 800 rulings they issue each year catch the public’s attention; most are followed only by those directly involved.

That has changed, though, as Orange County bankruptcy cases--some of the most closely followed local legal wrangles in recent years--have made their way to the appeals court.

So far, the court has dismissed charges against two county supervisors accused of willful misconduct in the bankruptcy, and barred the Orange County district attorney’s office from involvement in a similar case against County Auditor-Controller Steven E. Lewis because of conflicts of interest “so grave as to render it unlikely [Lewis] will receive fair treatment.” Still pending is an appeal of the criminal conviction of former Assistant Treasurer Matthew R. Raabe.

The court also recently upheld a Superior Court order that 5,000 pages of grand jury testimony about Merrill Lynch’s involvement in the scandal be made public in defiance of decades of tradition. The state Supreme Court, though, is reviewing that case.

In addition to elevating the public profile of the court, the bankruptcy cases have drawn rare attention to simmering tensions--and occasional full-boil feuds--between the court and prosecutors.

At issue is how the 3rd Division perceives its role, how it looks at state law, and how it assesses courtroom behavior during trials.

Allies say the six justices make up one of the hardest-working state appeals courts, its members bright and fair and well-qualified to review Orange County Superior Court decisions.

Yet critics say the court has a renegade cast, going its own way in defiance of established judicial tradition. Conservative critics call three of the justices--half the court--”Jerry’s kids” after the liberal governor who gave them their jobs.

One of those justices, Edward J. Wallin, who once was a federal prosecutor, argues that he and the other justices do not necessarily reflect the politicians who appointed them.

“Except to shake his hand once or twice when I saw him, I didn’t know Gov. Brown,” Wallin said. “The truth is, we’re a hopeless collection of moderates.”

While the liberal-conservative issue might strike some as just so much inside baseball--lawyers sniping at lawyers about their lawyerly behavior--how the appeals court works eventually affects the way laws guide daily public life in Orange County.

And since the California Supreme Court only reviews a small fraction of cases, the Court of Appeal usually has the last word in any given case.

That makes the Santa Ana court a pivotal arbiter of justice in Orange County.

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To prosecutors--most of whom shy from discussing the appeals court justices publicly--the 3rd Division can be an obstacle to truth and justice, overturning more cases than warranted and leading to costly retrials unless the California Supreme Court steps in.

The depth of prosecutors’ frustrations can be discerned from some of their filings. In asking the Supreme Court to review the appeals court’s decision on Lewis’ bankruptcy-related case, prosecutors contended the court has shown a pattern of disregarding established legal standards.

“Once again, the Court of Appeal reached its decision by ignoring a voluminous evidentiary record developed over four months of litigation in the Superior Court and the careful findings and conclusions of an estimable Superior Court judge,” state prosecutors wrote in their petition. “Instead, the Court of Appeal found its own evidence, substituted its judgment for that of the trial judge and reached its own contrary conclusion.”

Although the Supreme Court let the Lewis decision stand, prosecutors have had some success in getting around the appeals court in other matters. No officials compile statistics on how often state appellate rulings are overruled by the Supreme Court.

One 3rd Division case that did reach the Supreme Court involved Dr. Thomas A. Gionis, convicted of orchestrating an attack on his estranged wife, the daughter of actor John Wayne, and her former boyfriend. The Santa Ana court threw out the conviction, in part because of the trial prosecutor’s “vitriolic rebuttal and personal attacks” on Gionis’ flamboyant New York attorney.

The prosecutor had quoted Charles Dickens, playwright Jean Geraudoux, William Shakespeare and Danish proverbs in telling jurors that it is an attorney’s “duty to lie, conceal, distort, and slander everybody.”

“We have repeatedly condemned this particular prosecutor’s tactics. . .,” the court noted in the opinion written by Justice Thomas F. Crosby Jr., with Presiding Justice David G. Sills and now-deceased Henry T. Moore Jr. concurring. “No theme permeated the prosecutor’s rebuttal so much as this: Defense counsel’s ordained purpose and deliberate goal was deception of the jury. This accusation was an insult to the bar in general, and slander of this defense attorney in particular.”

The Supreme Court later reinstated the conviction, saying the 3rd Division justices had no basis upon which to overturn it.

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Despite criticism from prosecutors, the 3rd Division upholds convictions at a rate close to the statewide average, according to 1995-96 statistics compiled by the Judicial Council of California.

In that fiscal year, the court upheld convictions in 81% of criminal appeals for which it issued written opinions, compared with a statewide rate of 78%. And it upheld with modification--the conviction stands, but the court changes elements such as length of sentence--13% of its cases, compared with a statewide rate of 18%. Overall, the court upheld 94% of the convictions, compared with a statewide rate of 96%.

The previous year, the court upheld 95% of the convictions, nearly the same as the statewide rate.

The court also was in line with the statewide rate for appeals in civil cases, supporting about three-fourths of the cases in which it issued written opinions.

Similarly, the Santa Ana court fares about average in having its rulings “published,” which means its decisions are accepted as legal precedents for future cases. The 3rd Division published 10% of its cases in the last fiscal year, up from 7% the year before. The statewide average has ranged around 8% to 9% in recent years.

“They don’t just rubber-stamp everything the trial court does,” veteran appellate attorney John Dodd said. “The majority of cases should be affirmed and are going to be affirmed, but this court doesn’t come up with phony baloney reasons to affirm cases.”

Senior Assistant Atty. Gen. Gary W. Schons, whose San Diego office represents the state in post-conviction criminal appeals in the 4th District, described a professional relationship with the court.

“There is no trend in rates of reversals or the legal reasoning of the court which suggests it’s philosophically liberal,” Schons said. “Our office has the sense that we get a fair review from the court and it’s not hostile to the positions we take. Our only concern of the court is those rare cases when the court seems to step out of its role as a court of review and tends to second-guess the facts.”

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To some critics, the 3rd Division is its parent’s child.

In 1981, the Democratic-controlled Legislature authorized 18 new appellate positions, including four for a new division in Orange County. After a political battle that culminated in legal challenges before the state Supreme Court in San Francisco, the positions were ready to be filled in late 1982.

In a last-minute act, liberal Democrat Jerry Brown filled the four seats as he was turning the governor’s office over to Republican George Deukmejian. Three of those original Brown appointees still serve: Crosby, a former county prosecutor and criminal defense attorney; Sheila P. Sonenshine, a family law specialist; and Wallin, the onetime federal prosecutor who was also a business litigator.

The court has increased to six judges since its founding, and is now evenly split between Democratic and Republican appointees. Deukmejian named Sills, a former Irvine mayor and business lawyer, as presiding justice in 1990. Gov. Pete Wilson subsequently appointed William F. Rylaarsdam, a former civil attorney, in 1995 and William W. Bedsworth, a longtime county prosecutor, this past February.

All of the appointees previously sat on the Superior Court bench.

The court’s political history makes it stand out in other ways as well.

Crosby, considered the most liberal judge on the panel, once joked that the Supreme Court had reviewed or depublished so many of his opinions that he felt as if the justices were “playing man-to-man defense” against him.

Depublishing allows the Supreme Court to uphold a specific appellate decision without giving it the added power of serving as precedent for other cases. In a 1993 study, former Santa Clara University School of Law Dean Gerald F. Uelmen found the Supreme Court depublished a high number of the division’s opinions, despite a publishing rate that was well below the state average.

Although reasons for depublishing are varied and elusive, Uelmen concluded that divisions with a high number of Democratic appointees were more likely to see their work “consigned to oblivion” by a Supreme Court dominated by Republican appointees.

While the Orange County division is one of only two with half its members Democratic appointees, Uelmen described the court as “middle of the road.”

“Our 4th District Court of Appeal is probably the best rounded of all the district courts in this state,” said Orange County Superior Court Judge David O. Carter, who oversees the court’s criminal caseload. “It’s very diverse, and that’s its strength. . . . Our district court, whether you agree or disagree with a particular opinion, has a reservoir of talent.”

Superior Court Judge Thomas N. Thrasher Sr., who supervises civil operations, said the justices’ background as former Orange County judges limits inherent tensions that come with someone saying you made a mistake.

“They used to be in the same seats we are in now,” he said. “They are aware of our problems.”

The appeals justices themselves say they form a collegial team that transcends politics.

“We may disagree, but we are never disagreeable about it,” Rylaarsdam said. “In law, it’s really the process that counts. We try very hard and very conscientiously . . . to follow what we believe the law demands us to do. If the law requires a particular result, I think we should be judged on how faithful we are in following the law.”

The justices also dispute the notion that their court is liberal.

“Those who lose always say there is something wrong,” Sills said. “And those who win rarely compliment anyone.”

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For all the arguments in court over technicalities, the appeal process itself is relatively simple.

In the Santa Ana court, each appeal is assigned randomly to panels of three of the six judges. If the justices believe an error affected a trial’s outcome, they can reverse the decision and return it to the trial court. The justices also rule on writ requests, which generally deal with legal issues before trial.

While judges might have only seconds to make a decision during a trial, appellate justices have the luxury of time, allowing them to digest the intricacies of how trials were conducted.

It also gives them time to tee up some of the players in the trials.

In a celebrated 1992 gender bias ruling, the court rebuked a now-retired Superior Court judge for comments in the divorce of a couple who had married after living together for a number of years. The wife contended in the divorce case that the husband first broached the subject of marriage, to which the judge said: “Why . . . buy the cow when you can get the milk free?”

“The day is long past when appellate courts can disregard judicial action rooted in racial or sexual bias as harmless error,” wrote Sills, joined by Wallin.

Moore also agreed that a retrial was needed, but in a dissent said he would not “join in the zeal of my colleagues in flogging the trial judge.”

More recently, the court scolded a judge in reversing the murder conviction of a Newport Beach woman, saying jurors should not have been shown a gruesome crime scene photo, since the shooting occurred after the woman had left the house.

Superior Court Judge Robert R. Fitzgerald had allowed the photo to be used in the trial of Nanette Scheid, in part because it wasn’t “particularly gruesome as these cases go.”

To that, Crosby, writing for the majority in 2-1 opinion, replied in a footnote: “ ‘As these cases go’ reveals, perhaps, a skin thickened by too many gruesome murder trials.”

The Supreme Court, though, overruled the Court of Appeal and reinstated the conviction.

Although the justices on the appeals court usually agree on cases, some of their sharpest words have been directed at each other.

In an opinion holding that twin Anaheim Hills brothers cannot be excluded from Boy Scouts because they don’t believe in God, Sills wrote in dissent: “To read the majority opinion, one would think we are writing about a pizza parlor where the proprietor requires prayers before serving a medium pepperoni with anchovies. It may come as a surprise to my colleagues, but there are those who still seek membership in an organization which teaches duty to God and country and the virtues of order and discipline.”

Sometimes the differences are more subtle.

And more playful.

Sonenshine, in a recent concurring opinion in a dental malpractice case, wrote: “What follows is an opinion which comes to the same conclusion, but with fewer words.”

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Also contributing to this report were Times library researchers Sheila Kern and Lois Hooker.

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The California Court System

Here’s the basic structure of the state’s court system and where the Courts of Appeal fit in:

Supreme Court

Agrees to review only about 5% of appeals filed from rulings by Courts of Appeal. Death penalty cases automatically appealed from Superior Court directly to Supreme Court.

* 1 chief justice, 6 associate judges

Courts of Appeal

The 3rd Division of the 4th Court of Appeal reviews cases tried at Superior Court level, or appealed to Superior Court from Municipal Court. Appeals of 3rd Division’s rulings go to Supreme Court.

* 18 divisions with six districts statewide and 93 judges

* 3rd Division: Six justices in Santa Ana

Superior Courts

Hear all felony trials and civil cases involving more than $25,000 in claims, as well as Municipal Court appeals. Orange County appeals of rulings at this level go to the 3rd Division of the 4th Court of Appeal.

* 58 (1 for each county) with a total of 804 judges; 177 commissioners and referees

Municipal Courts

Five in Orange County handle all arraignments and preliminary hearings, and trials of misdemeanor cases (which carry sentences of one year or less). They also hear civil cases involving claims of $25,000 or less. Appeals of criminal and civil rulings at this level go to Orange County Superior Court.

* 109 with total of 676 judges; 179 commissioners and referees

Long Days of Justice

Average number of days from notice of appeal to filing of opinion on civil or criminal case:

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4th District Statewide Civil 878 524 Criminal 476 394

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Source: Judicial Council of California; Researched by SCOTT MARTELLE / Los Angeles Times

Faces of Justice

The six justices of the 4th District Court of Appeal, 3rd Division, include three appointed by the state’s last Democratic governor, Edmund G. Brown Jr.:

William W. Bedsworth

Age: 49

Professional background: Appointed by Gov. Pete Wilson in February. Elected to Orange County Superior Court judgeship in 1986; presided primarily over criminal trials. Orange County prosecutor from 1972 to 1986, at one point running district attorney’s writs and appeals section.

Education: Law degree, UC Berkeley, 1971; bachelor’s degree in English literature, Loyola Marymount, 1968

Notable cases: Wrote two precedent-setting opinions in 1994: One set new guidelines for what qualifies as a criminal street gang and what evidence can be submitted in court to prove membership in a gang; the second clarified when fingerprint evidence would be needed to help prove probation violations for probationers caught using different names.

Thomas F. Crosby Jr.

Age: 59

Professional background: Appointed associate justice by Gov. Edmund G. Brown Jr. in 1982. Worked five years as a prosecutor in Orange County district attorney’s office before going into private practice, specializing in criminal defense work.

Education: Master’s of law, University of Virginia, 1988; law degree, UC Berkeley, 1965; bachelor’s degree in political science, Stanford University, 1962

Notable cases: Wrote decision invalidating Santa Ana’s “camping” ordinance, which was aimed at keeping homeless from living on public property. Wrote another that made its way to the U.S. Supreme Court, which agreed with stricter guidelines he proposed for car trunk searches by police. Upheld validity of environmental studies for San Joaquin Hills tollway, which cleared the way for the controversial project.

William F. Rylaarsdam

Age: 60

Professional background: Appointed associate justice in 1995 by Gov. Pete Wilson. Served year as a Los Angeles Superior Court judge. Orange County Superior Court judge from 1986 to 1995, primarily handling complex civil cases. Both judgeship appointments by Gov. George Deukmejian. Previously practiced law in Los Angeles and Orange counties for 20 years, specializing in business and insurance litigation and defending fellow attorneys or doctors accused of malpractice.

Education: Law degree, Loyola University School of Law, 1964; bachelor’s degree in business administration, UC Berkeley, 1957

Notable cases: Wrote precedent-setting opinion disqualifying district attorney’s office, because of an apparent conflict of interest, from prosecuting bankruptcy-related civil complaint against Auditor-Controller Steve E. Lewis. Also wrote the opinion upholding two 1994 ballot measures blocking a $500-million resort-housing complex on Dana Point Headlands, but affirmed landowners’ right to eventually build there.

David G. Sills

Age: 59

Professional background: Appointed as presiding justice in 1990 by Deukmejian, who in 1985 had named him to Orange County Superior Court.

Before that, Sills maintained a private law practice in Newport Beach and in Orange for 20 years, specializing in business litigation.

Education: Law degree, University of Illinois College of Law, 1961; bachelor’s degree in political science from Bradley University (Peoria, Ill.), 1958

Notable cases: Wrote precedent-setting opinion denying surrogate mother Anna Johnson parental rights to child she delivered, and more recently assailed Orange County’s Social Services for removing 4-year-old boy from his home because parents were poor housekeepers. Barred Santa Ana officials from using strict residential occupancy limits to combat overcrowding, reasoning the city’s proposed limit “would criminalize a level of occupant density which the state has determined is safe.” Also handed a stinging defeat to local judges in 1992, saying they were wrong in trying to jail Sheriff Brad Gates for his controversial practice of freeing inmates to avoid overcrowding in County Jail.

Sheila P. Sonenshine

Age: 52

Professional background: Appointed to Orange County Superior Court bench and then elevated to associate justice in 1982 at age 37--the youngest appellate justice in California. Both appointments by Brown. Spent 10 years in private practice, specializing in family law.

Education: Law degree, Loyola University School of Law, 1967; bachelor’s degree in economics, UCLA, 1967

Notable cases: Was asked in 1984 to draft majority decision by state Supreme Court in case involving rights of natural fathers in custody cases. In another instance, state Supreme Court adopted her dissenting opinion in a dispute involving businesses offering promotional “Ladies Night” discounts to women. She said that treating one sex differently violated the law, regardless of the situation. “When I speak about gender bias, I say, change the issue to race or religion, and people would not hesitate. Imagine going down the street, and seeing a car wash advertising, ‘Christians half price,’ ‘Jews for free,’ ‘No blacks on Thursday.’ ”

Edward J. Wallin

Age: 55

Background: Appointed associate justice by Brown in 1982. Four years earlier, Brown had appointed him to the Orange County Superior Court, making him, at 36, the youngest Superior Court judge in California. Before his appointment to the bench, he spent 2 1/2 years as an assistant U.S. attorney, prosecuting tax fraud and white-collar crimes. Spent 18 years in private practice, specializing in business litigation.

Education: Law degree, University of Minnesota Law School, 1967; bachelor’s degree in political science, University of Minnesota, 1964

Notable cases: Held that common police practice of photographing youths suspected of gang involvement was a civil rights violation. Recently wrote decision dismissing all civil charges against two Orange County supervisors accused of misconduct in connection with county bankruptcy, saying district attorney cannot seek their removal without evidence of corruption or a specific intent to break the law. Decision, which Supreme Court allowed to stand, set standards for removing public officials from office in California.

Source: Times reports and legal journals; Researched by ANNA CEKOLA / Los Angeles Times