64D Installment. Ha!Ha! The State Bar Court thinks it has inherent powers

(5^h in Philip E. Kay series)

The State Bar's justification for defaulting Philip E. Kay has evolved or rather devolved. The State Bar first argued that discovery procedures could do double duty at trial. Unable to support this argument to justify radical expansion of discovery's domain, the State Bar tried a different line: failing to appear at trial includes refusal to testify. Still without an argument to make respectable its self-serving deafness to all distinction, the State Bar's July 1 reply emphasizes yet another fantastical theory: the State Bar Court's "inherent powers" authorize striking Kay's answer.

Despite an extensive California case law on the inherent powers of courts, the State Bar quotes no California cases; introducing California law would make this argument's meritlessness too obvious, since under California law the inherent powers of the courts derive from Article VI, section 1 of California's constitution. (Walker v. Superior Court (1991) 53 Cal.3d 257, 266-267.) The constitution defines "courts of record": the superior courts, Court of Appeal, and the Supreme Court; as only Article VI courts of record have inherent powers, the State Bar Court has none. "[E]very court of record has powers requisite to its proper functioning as an independent constitutional department...," the Supreme Court repeatedly recites. (Bauguess v. Paine (1978) 22 Cal.3d 626, 635 [emphasis added].) Inherent powers are specific to the courts of record because these powers are based on the separation of powers between governmental departments, a club the State Bar Court doesn't belong to. The State Bar Court has no judicial powers — hence, no inherent judicial powers — these vested in the courts of record.

The constitution vests judicial power in specific courts and denies judicial power to all other agencies. Many institutions nominally "courts" aren't courts for constitutional purposes. The Supreme Court resolved where the inherent powers of courts end when it held that striking an answer is an unconstitutional sanction without an order from and hearing before an Article 6 judge. (Summerville v. Kelliher (1904) 144 Cal. 155.) Commissioners, notaries, and other sub-Article 6 judicial officials, such as State Bar Court judges, could not thereafter constitutionally exercise any supposed inherent power.

The State Bar Court, an administrative arm of the California Supreme Court, doesn't inherit the Supreme Court's powers. The State Bar Court is a statutory creation, and statutes alone define its powers — none inherent.

Installment 64C. The State Bar Court gets even more illogical

(4^th 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.