(4th in Philip E. Kay series)
The State Bar Court's Hearing Department has in fact narrowed — to a single issue of statutory interpretation — the issues on entering Kay's default and striking Kay's answer in reprisal for Kay's refusal to retake the witness stand. The State Bar claims entitlement under State Bar Rules of Procedure rule 201 to enter Kay's default for the refusal. Rule 201(b)(3) states:
If a respondent fails to appear as a party at the trial when that respondent's default had not previously been entered in the proceeding, then the Court shall order the Clerk to enter that respondent's default if the respondent has not appeared at trial.
The Order of June 17 encapsulates the State Bar's notion that testifying is part of "appearing" under rule 201:
Imposing sanctions for a party's failure to comply with a notice to appear at trial to testify is not a novel issue. ... Our rules of procedure therefore expressly provide for the imposition of sanctions for a party's failure to comply with a notice to attend trial to testify.
The narrow issue is: does a respondent fail to "appear at trial" when he refuses to retake the witness stand? Since this narrow issue has become dispositive, it deserves deep analysis, despite apparent triviality. I provide a skeletal textual analysis here.
Black's Law Dictionary's definition of "appearance" expands on the English dictionary definition, "coming formally before the court":
A coming into court as party to a suit, either in person or by attorney, whether as plaintiff or defendant. The formal proceeding by which a defendant submits himself to the jurisdiction of the court. The voluntary submission to the court's jurisdiction.
In civil actions the parties do not normally actually appear in person, but rather through their attorneys (who enter their appearance by filing written pleadings, or a formal written entry of appearance). Also, at many stages of criminal proceedings, particularly involving minor offenses, the defendant's attorney appears on his behalf.
Although "appearance" is used for a spectrum of acts from accepting the court's jurisdiction to coming to the courtroom on a specific matter, the common thread throughout these related meanings includes the notion an appearance is a kind of act that can ordinarily be performed equally by a party or his attorney; this meaning excludes testifying. Testifying isn't part of "appearing" because a party can ordinarily "appear" by counsel.
Usage in the State Bar's Rules of Procedure corresponds, as rule 210 shows:
The respondent has an obligation to appear at trial unless default has been entered and has not been vacated. The respondent may appear through counsel rather than in person, unless the respondent is properly served with a trial subpoena or notice to appear at trial.
An appearance is a kind of act that an attorney can perform for a party. Hence, "appearance" would change its meaning within the same set of rules if the term included testimony when applied to a party. Consider what happens if a party's attorney is called to testify in his client's case, and the attorney refuses. The client has appeared by attorney, and the client's appearance is unaffected by the attorney's refusal. Since the client can appear by attorney or in person, the party's refusal to testify doesn't negate his having appeared. Otherwise, "appear" would mean to attend and testify when applied to a party appearing in person and would mean merely to attend when applied to a party acting through attorney. Consistency requires construing "appearance" as merely attending. "Appearance" doesn't include testifying.
Philip Kay should prevail on his motion. Let's hope he raises the right arguments and doesn't bog down in discussion of legislative history. Sometimes we must move in a direction opposite to that suggested by Oliver Wendell Holmes Jr. when he remarked that experience plays a bigger role in law than logic. The key issue in the Kay matter has become one of textual interpretation, and logic will rule.