John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. In the previous episode we discussed why it was controversial. (Short version: because the Court of Appeal, sub silentio, thumbed its nose at the Supreme Court and concluded that a missing finding required by statute gives you a an automatic get-a-new-trial-free card.) In this second part of our discussion, we discuss analogous situations with the Racial Justice Act, and in the example of family law financial disclosures—where in a closely analogous situation the Court of Appeal held exactly the opposite of Abdelqader.
John explains what attorneys are supposed to do with two conflicting authorities—with one of them being the Supreme Court. Hint: you have both arguments available to you, but as an attorney, unlike the Court of Appeal, when the Supreme Court has rejected your argument you have to say so.
John Sylvester’s biography and LinkedIn profile.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.
Announcer 0:00
Music. Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis,
Jeff Lewis 0:17
welcome everyone.
Tim Kowal 0:17
I am Jeff Lewis and I'm Tim kowall, As certified appellate specialist, both Jeff and I face a lot of unusual problems that come up at trial and on appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. If you find this podcast useful, please recommend it to a colleague
Jeff Lewis 0:34
and drop us an email. Let us know if you like this new shorter format with interviews cut in half. Yeah,
Tim Kowal 0:39
and to continue our our discussion from last time with John Sylvester, a dual certified family law and appellate law attorney, we were talking about Abdel Kader versus Abraham. It's a case that Jeff and I have talked about multiple times on this podcast. It's from back in 2022 and we can't stop talking about it because of the interesting issues it presents in the statement of decision process, many attorneys would probably yawn and fall asleep when talking about state statement of decision process. But John and Jeff and I can't get enough of it. The Abdel Kader case, just to recap from last time, creates what we'll talk about whether, whether John thinks it creates some tension in the law. We talked about the California Supreme Court case of FP Monier, which says that, well, yeah, I mean, there's a there's a requirement for a statement of decision and findings have to be included in it, but if there's a missing finding, that's only step one in getting a reversal. Step two is the constitutional requirement to establish that that missing finding caused a miscarriage of justice, or sometimes referred to as prejudice, that it was prejudicial error, not just error, but prejudicial error. And in some cases, there are what we call per se errors or structural errors. A good textbook example of a structural error would be you were denied a right to a jury trial. How the heck you supposed to prove that? Well, I would have gotten a different result if I had, if I had a jury rather than a bench trial. So those kinds of errors are, are structural, but other types of errors are, are subject to the prejudicial error standard. And in an in an Abdel Kader case, where John was the was the respondent, counsel of record, he made the made that argument based on the Constitution and F p Monier that even though there was a missing finding, there was no prejudicial error as a result. But again, but to recap for us, John, how did the How did the Abdel Kader case come out on that argument? Ultimately,
John Sylvester 2:35
the court found that the failure to make the Express findings in the statute was itself prejudicial, and so it found that, in essence, without saying, this is structural, it basically found that the failure to make findings on its own, on its face, warranted reversal.
Tim Kowal 2:56
Now, where do you think we go with that? With that ruling? Abdel Kader is a published decision, so we can cite to it if ever we come across a finding that was made that where that finding is required to be made by statute, we could say, Aha adaire says that if a finding is required to be made by statute, then then if it's missing, that's per se reversal. But on the on the other hand, we have California Supreme Court case FP Monier saying that, no, I'm missing finding is not per se reversal. So how, how should we attorneys, and especially we appellate attorneys, think about using these two authorities that is, well, first of all, is there a tension between these authorities? Is there or there's a way to navigate between them? Yeah.
John Sylvester 3:40
I mean, there definitely is a tension. You've got a Supreme Court case which, which, you know, in terms of, you know, relying on strength of precedent, you know, certainly Trump, say, a court of appeal decision. But more importantly, there's a precept that we use in appellate law that decisions can't be used as precedent for for holdings that they don't make. And so my perspective when I look at the Abraham case is that there wasn't a significant discussion of prejudicial versus harmless error. There was the mention of the use of the word harmless almost in passing, when really the decision fell on the idea that the doctrine of implied findings couldn't be used to invent findings that weren't expressly put on the record. So in my cases where I've had to go against avlo, KDR, I have essentially held that, because it didn't go in depth into the per se error analysis, that it can't be held as precedent on it, that it's just simply something that was disregarded. And so, you know, if I'm in a different court of appeal, or if I'm in a different division of the same court of appeal, I'm going to argue that they don't have to follow any sort of parallel stare decisis with abdicator. Yeah, so
Tim Kowal 4:52
you're saying because there's not a broader doctrinal discussion that tried to square the circle between the. The statement of decision rules and the constitutional rules of miscarriage of justice that Abdelkader basically should be limited to its facts and maybe only applies in the very specific statute of 3044, of the family code,
John Sylvester 5:15
exactly, unless you're the one who is fighting for the mandatory findings that aren't there in which case have at it. That is your shining case. Yeah, before you
Tim Kowal 5:25
make your argument, always refer to to the check, see who is paying you, and make your arguments accordingly. So is that? Is that similar to an argument that this is, it's not dicta, though it doesn't meet the it's, I mean, it was necessary to to the decision in Abdel Kader. So it's not that it's dicta, it's just that it is a very narrow holding.
John Sylvester 5:50
Yeah, I think that when you have in depth treatment, and you see this, when you shepherdize cases on Westlaw or Lexis, that they kind of draw a difference between, you know, in depth treatment, where something's been distinguished, versus where it's just kind of cited in a in a parallel or a string citation, almost in passing, and not really, you know, the crux of the opinion. So that's how I would treat this case. You're right. That on its face, it seems it does say in black letter, you know, statement, that this was not harmless error, but it almost says that in passing on its way to reversing the case, because it relies much more on again, the implied findings issue. So I would say that if you have a Supreme Court case like FP versus Monier, which goes into great deal, the issue of you know is it, can there be per se error when you don't follow an express statutory mandate. I think that that should carry the day over a court of appeal decision that only touched upon it in passing. Yeah,
Tim Kowal 6:47
yeah. I agree with you there. Well, we talked last time I asked you if, if there was, if there was a mention, you mentioned that there was no mention of the Supreme Court case of FP versus Monier in the Abdelkader versus Abraham opinion, what do you make of that? Well, I
John Sylvester 7:07
know it was in my respondents brief. So, you know, it stings me to this day.
Tim Kowal 7:13
My next question, does it sting? There was no mention of it.
John Sylvester 7:17
But honestly, I think that, you know, sometimes when you get these decisions, there's, it's a spaghetti on the wall approach where you're trying to say that, here are the five different reasons why you can affirm. You only have to pick one. And sometimes they find that four out of five were met, and so they're just going to overlook the fifth and not really give it significant treatment. Yeah,
Tim Kowal 7:38
and that's, that's tough when you're the respondent, because you really do want to put out, look there, there's six ways from Sunday that you can affirm this. This case, I've shared this with with Jeff on the podcast, that the decision, that the loss, the appellate loss, that stays with me the most, that stings me the most is where my best argument was just there wasn't even, was there was no mention of it in the opinion, and I even filed one of those petitions for rehearings. You know those, you know those, those last refuge of the loser that never work, even when you have them dead to rights, just thinking that maybe they forgot, maybe those pages got stuck together and they just didn't see it. I had, I had to bring it to their attention, because it was a, it was a, an untimely appeal, for heaven's sake, a jurisdictional problem. No mention of it whatsoever. Killed me.
John Sylvester 8:26
Yeah, I agree completely. And one of the things that I learned in my briefing process as part of this case is usually we're taught in some brief writing classes to have our arguments track the opening brief. If they say arguments one through five, then we should respond with one through five. Well, because the appellant didn't press too heavily on it being a reversible error, I found that my argument was a little buried in my brief near the end there, maybe when they were starting to doze off a little bit reading it, you know, by candlelight at 11pm and perhaps if I put it front and center as a glaring issue for affirmance, perhaps the result would have been different. Yeah.
Tim Kowal 9:02
Well, to your point, John, about the maybe other appellate courts will limit application of Abdel Kader. Jeff and I covered another, another case from, also from 2022 a little bit later in the year, but it did. Abdel Kader did get a mention in that case, it was an unpublished case, marriage of burger, and it dealt with with another section of the family code, 2033, for need based attorney fees. And you had mentioned in our first part of our discussion, John, that there are many, many provisions of the family code where the family judge is obliged, under statute, to make Express findings on things. And so the appellant here, who didn't get the relief that she wanted, jumped up and down on appeal and said, Aha, there were missing findings that are statutorily required. Abdel Kader said that missing findings that were statutorily required result in per se reversal. So I want per se reversal too. And. And the Court of Appeal there, the fourth district, third division, said, No, we still have the Supreme Court case in FP Monier that says generally missing findings, even if they're required. Our only error, not necessarily prejudicial error, you have to show us prejudice, and we don't see it. And so there was an affirmance. So that seems to vindicate your your expectation that courts will probably still just stick with FP Monier, but still, you know, if, if you can make the argument under Abdel Kader do so, but I think, I think there probably is a tension in the law there. You know, you're, you mentioned, John, that you're, you're a member of the associate Association of Certified family law specialists and I know that that group is very active in, as you mentioned, kind of trawling the wires to see what family law decisions are coming down, how it's going to affect the practice of family law, and often submitting amicus briefs or requests for publication or maybe de publication of cases. What do you think of that? What do you have any inkling as to why the Court of Appeal published the Abdelkader decision.
John Sylvester 11:03
So there hadn't really been a clear case that said, you know, when we say you have to put these expressly on the record in the statute in 3044 do we really mean it? And so I think that that gave the Court of Appeal what it needed, and this wasn't nobody asked for this to be published. It was published by them on their own, without a request. And I do think that they saw a potential gap in the law there, because we did already have law on the books saying that the fee statute that you just referenced in the Berger case, that that requires Express findings. And we do have law in the books talking about other aspects of family law, like the spousal support factors of family code, section four to 320 that those require the court to consider all the findings. But it just so happened, there really hadn't been a case that had said that with with absolute certainty under 3044, but
Tim Kowal 11:58
but just given the fact that there was, there was no articulation of the larger doctrinal problems. I wonder why the why the court just didn't if it wanted to reach that result, and you had mentioned that? Well, I'm not sure why. Why the judge one, why the Court of Appeal, wanted to reach that result that do you think that it was that it felt that, that that equity demanded that result sometimes, if it, if the court will, thinks that, well, maybe the better result for these parties in these circumstances is, is, you know, is to affirm or to reverse in this case. But we don't want to create a big doctrinal earthquake, so let's just mark it not to be published, and then problem solved, but the court did publish this decision, which strikes me as odd.
John Sylvester 12:47
Well, I think that there's an inherent disconnect between the legislature making very clear in these statutes that we want express findings and we expect the court to make them on the record, and then having case law on the books, following FP versus Monier that says, actually, it doesn't matter whether you make the findings, because we can apply them and fill in the blanks. And I think that's one of the reasons why we see a split here between people calling this a structural error versus a harmless error, because if we can just follow FP versus Monier, which is certainly my position, then it kind of takes the teeth out of statutes that say you must do this.
Tim Kowal 13:27
Yeah, yeah. I certainly understand that. As a as the appellate attorney who's usually getting getting calls from people who want to take up a challenge, you know, I like seeing Abdel Kader. I thought because it's, it's it's more, though it's more opportunity when in family law, where everything is abuse of discretion, and usually as a rule, you know you don't have a good, appealable issue, Abdelkader suddenly makes a whole bunch of potential appealable issues. Every statute that requires findings, you just, you know, check, you know, you create a checklist for yourself. Does the written ruling have these findings? Did I can I find a missing one? Aha, I've got a good appeal is, do you expect, or do you do you see that there has been any kind of uptick in the number, number of appeals, probably too soon to tell. But I wonder if a group like Association of Certified family law specialists anticipates that this type of result may result in a floodgates type of problem. Yeah,
John Sylvester 14:21
I think it works from the ground up when a decision like this comes out, because I do know that what has happened with both the fee statutes and section 3044 is that the trial judges have wised up and they're now given checklists, you know, during during their training, and get passed around that. And I use the term paint by number in the last podcast, where literally follow the statute, A, B, C, D, F, and insert the facts here that you heard at trial, and then you won't get reversed, because you follow the mandatory findings. And so I think that's actually resulting in a lot more affirmances On appeal of people trying to appeal these statutes, because the result is, is that if they've at least followed those findings, then you're looking at an abuse of discretion. Appeal, not a de novo appeal. And as you know, those are very difficult.
Tim Kowal 15:03
Yeah, both, both Jeff and I are fans of Text Expander. And I can imagine a judge having a text expander for Okay, 30, you know, 3044, presumptions. Just give me the text expander for that, and I'll make those findings. I I sometimes wonder if judges have that for, you know, in their in their rulings or statements of decisions, for I found plaintiff to be totally credible and trustworthy and defended to be totally lacking in credibility and trustworthiness, like that must be a macro somewhere on the judge's keyboard.
John Sylvester 15:32
Oh, absolutely. You have a family law calendar of you know, 50 different cases, all that are given five minutes each on the morning calendar. You know that they love checklists.
Tim Kowal 15:42
That's right now to go off on a little bit of a tangent, but that, I think it's related. Jeff and I have have discussed once or twice whether the Racial Justice Act might be unconstitutional, at least in part, because, by statute, the legislature dictates that any violation of the statute, such as a challenge to a prospective juror that the defendant believes is motivated by by bias, including even implicit bias, and if the judge fails to properly vet the prosecutor's basis For the determination and make specific findings that the to support that the challenge was proper and not motivated by implicit bias. Any violation of those procedures is a constitutional miscarriage of justice. But as Justice Egan has has mentioned, and as Justice Gilbert also has kind of cosigned to this problem, this creates a separation of powers problem, because as we've talked about, and as FP versus Monier has talked about, the requirement that the Court of Appeal make a determination that the error committed by the trial court resulted in a miscarriage of justice is rooted in the Constitution, and so whenever There is a constitutional requirement that the court has to determine whether whether the constitutional requirement has been met in a given case. But here in the in the Racial Justice Act, the legislature has purported to dictate to the judiciary that when this happens, you have to find that the constitutional trigger has been met. And justice? Egan has said, No, the court, the judiciary, is a separate and equal branch of government. We have an independent obligation to enforce the Constitution. And I wonder if we've wondered if this is similar to the problem we're seeing in Abdel Kader, where the court understandably says, As you says as you acknowledge, it's understandable that the court would say, well, the legislature tells the courts that you have to make these findings, and we can't just overlook it when the judges fail to make the findings. But on the other hand, it's the constitution that requires that the that the judicial that this error be be found to be a miscarriage of justice. We can't just just take direction from the legislature to just deem them a miscarriage of justice. We have to make that finding independently. Do you? Do you see a connection between what Justice Egan argues as a separation of powers problem when it comes to the Racial Justice Act and the way that Abdel Kader understandably treats these, these legislative directives that that certain findings be made in these family law matters. Yeah, and
John Sylvester 18:35
I agree with the approach. I'm not you know closely working in my research on the Racial Justice Act just because, obviously it's family law is my bread and butter, but I completely agree with the reasoning, which is that the miscarriage of justice requirement that gives right gives rise to us having to prove reversible error as a key component of every appeal other than those structural errors that we talked about, is something that actually has to take precedence, even in a statute that says otherwise. And I can actually give a family law example of this. There's a statute and family law. It's section 2107 it talks about financial disclosures that have to be exchanged between the parties before they get to settlements. And there is actually a section of that statute eerily similar to the Racial Justice Act, which states that failure to do those disclosures shall not be deemed harmless error, and that was actually taken up on appeal on a case whose name escapes me because it's getting late in the day on Friday, but that case essentially held that that portion of the statute was unconstitutional because it removed the miscarriage of justice requirements, and, like you said, created this, this problem of you know, you can look at it either as a as a separation of powers issue, or you could also look at it just simply, as a statute that is rendered illegally. Because of the Constitution, we know we have a constitution that trumps the statutes, which trumps the local rules, and in this case, you've got a statute that was on its face unconstitutional by removing that miscarriage of justice element. Yeah,
Tim Kowal 20:12
no, you're right. And I should have mentioned the 2107 because I had a case myself once, and because I don't practice in family law enough, you know, I went through that learning, that learning curve that you just outlined. I first found that statute that said that it's a that it's basically per se reversible. And I said, Aha, I got it. And then I digged a little bit deeper, shepherdized the case, and then found the case that you mentioned that said, No, that that's no good, that statutes no good, because the you know, you can't just over statute can't overwrite the constitutional requirement
John Sylvester 20:47
Absolutely. So, I mean, obviously there's a certain, you know, great deal of value in the Racial Justice Act, but I think that you know, the reasoning by Justice Egan is sound in terms of the issue and the inherent disconnect it creates between what the legislature has spoken on and what the Constitution has spoken on. Interesting
Jeff Lewis 21:04
fact about that case involving the Racial Justice Act, as of the recording of this podcast, which might be a few weeks before were published, there was a request filed by the Santa Barbara DAs office to de publish. The decision hasn't been acted on yet, so it'll be interesting to see if that case remains published law or not. Interesting. All
Tim Kowal 21:25
right, John, any predictions for how this split will play out? We talked about that there. There is a tension between FP Monier and Abdelkader. Do you expect that the Supreme Court is interested in taking this up at any point, or is it going to let it percolate
John Sylvester 21:44
as of right now, I think it would be percolating. I see it as an outlier. It's unfortunate that I had to be a part of the outlier. But, you know, once again, I kind of view it as a case that just simply kind of gave short shrift to the issue of FP versus Monier and reversible error, and that if other decisions come out that have the opportunity to touch upon this issue, they're likely to distinguish themselves from applicator, because I think that Monier is the better reason decision. And so, you know, until we get, you know, a few cases on either side that are agreeing and disagreeing with it, I'm hoping that it will just float into that E, that Westlaw ether, you know, and get old enough that people stop citing to
Tim Kowal 22:28
it. Yeah, well, and we've talked about it, you acknowledge that that there is a there. There's something uncomfortable about just letting courts, you know, fail to comply with the statutory directive to make findings, and so you can understand why the court maybe wanted to publish this decision. Is there. So I was going to ask you, is this the right result, or is there another way that the Abdelkader court could have addressed that problem?
John Sylvester 22:55
Well, I think that one of the problems with with that case and with with finding that not making the statutory findings is just per se reversible error, is that a lot of times, the trial judge is aware of the statute in question and knew of the facts that it needed to find to support the statute in question. And literally, the only thing that didn't happen is they didn't put it down in the checklist on the minute order or in the findings in order after hearing. And so that's a very, you know, form over substance way of approaching these important family law cases. And so, you know, our position in AdvoCare and in other cases like it, is that if the record clearly shows that the trial judge was aware of the statute, and there's substantial evidence in the record that the statute would have been complied with had the judge put it in their checklist. And these aren't decisions that should be reversed, that that's a waste of judicial resources, because ultimately, what's going to happen on remand is not a complete reversal. It's going to be a reversal with instructions for the trial judge to follow the statute, and if the trial judge follows the statute and comes to the exact same result, why didn't we always start time on this? Yeah, right,
Tim Kowal 24:09
right. Can you, can you give us a little bit of a taste of the aftermath, what happened in the in the actual case of after the appeal? And Abdel Kader,
John Sylvester 24:19
yeah, yeah. And that's I was not the trial attorney. In fact, I was no longer the attorney of record, but there was public proceedings, publicly available proceedings, to be able to see how it turned out, and this is probably where some of my vindication does come, which is that exactly what I predicted came true. It came back down on remand, the trial judge made the findings they were supposed to make and essentially kept the orders exactly the same. So, yeah, whether that was worth the cost of the appellant's fees remains to be seen.
Tim Kowal 24:49
Yeah, that's one of Jeff's favorite warnings. Is that that you will wind up with a Pyrrhic victory. You just get the court to You reversed. Great. We got a reversal, but then remanded with further and. Instructions to basically do the same thing, just checking a few more boxes. Exactly.
Jeff Lewis 25:03
Yeah, remand with the rubber stamp, right?
Tim Kowal 25:07
Okay, John, any last big picture thoughts? Big
John Sylvester 25:10
Picture thoughts, well, it's always far easier to solve these cases at the trial level. So if this is, I guess somehow, probably a sales pitch for the three of us, it's consult with your appellate that trial level and help the trial judges help themselves by giving them the checklist, literally, whether it's in your trial brief or even you know after the fact, in your statement and decision, you know, tell them exactly what the statute says and what those factors are that they need to follow, and then, ideally, that will keep cases like advocator from happening in the first place.
Tim Kowal 25:44
Yeah, yeah. I love that tip. I even, I even have on the back of my business card. I have tips to prepare for an appeal, so and I have, you know, request a statement of decision right on there. So, yeah, have have those, those checklists ready and handy when you're getting ready for trial. All right, Jeff, well, that's going to wrap up this episode, I think,
Jeff Lewis 26:06
yeah, actually, before we wrap up, we're gonna have a mini mini lightning round, because we do have to go. But a mini mini lightning round. Are you ready? Absolutely. Is Tim right or is he wrong? And is utter rejection of the cleaned up rule,
John Sylvester 26:17
I think wrong as one of the as one of the few people who sat through the whole cleaned up rule podcast. I gotta say that it's a very strong pitch. It's easier to read absolutely
Tim Kowal 26:29
okay,
Jeff Lewis 26:30
you pass the lightning round, and that's nice reward for coming up with the correct answer. We'll send you a podcast mug, and with that, we're gonna wrap
Tim Kowal 26:38
up. How do you pronounce the word A, M, i, c, U, S,
Jeff Lewis 26:42
Amicus, okay, nicely done. That
Tim Kowal 26:46
one, unlike the last one, there is no wrong answer,
Jeff Lewis 26:49
nor is there a right answer. Okay, we're gonna wrap this episode up. Thanks again for joining us, and if you have questions or suggestions for future episodes, go ahead and email us at [email protected] and in our future episodes, look for tips on laying the groundwork for a successful appeal.
Tim Kowal 27:07
Thanks again, John,
John Sylvester 27:08
thank you.
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