Saturday, January 22, 2011

Forced Abortion Constitutes Political Persecution

Last summer, the United States Court of Appeals for the Ninth Circuit held that the Board of Immigration Appeals must reconsider its denial of an asylum application by Nai Yuan Jiang, a Chinese man whose girlfriend was forced to have an abortion in China. In his application, Jiang claimed he was persecuted under China's coercive family planning policies. The Court agreed. The key to the Court's decision in Jiang's favor was its finding that forced abortion constitutes political persecution within the meaning of our immigration laws. (Jiang v. Holder, 611 F.3d 1086 (9th Cir. 2010)).

Upon reading the Court's opinion, one is readily inclined to agree that the Court made the right call; after all, it must be horrible to live in a country where the government controls population growth through the barbaric practice of forced abortion. But wait, in the context of abortion, what is the difference between China and the United States ? Well, U.S. citizens are not forced to have abortions; to the contrary, they volunteer to have them! How enlightened we are; how superior we are to those barbarians in China. China's abortions constitute political persecution but ours are politically correct.

Is the difference between China and the U.S. simply freedom of choice? Does a person's freedom to choose change the nature of the act itself? Of course not. Any act is objectively good or bad in itself; the goodness of the act does not depend on whether the act is done freely or under force. Forced action changes a person's culpability for an action, but it does not change the nature of the act itself. A person can be absolved of responsibility for an act done against their will, but the act itself does not change.

So again, one must ask what is the difference between the U.S. and China? Thomas Aquinas teaches that there are three parts to the morality of any act and all three parts must be good for any act to be morally good. The three are (1) the objective act itself, (2) the subjective motive, and (3) the situation or circumstances. (Peter Kreeft, Making Choices, Practical Wisdom for Everyday Moral Decisions, (Servant Books, Cincinnati, Ohio, 1990) pp. 29-30). By applying this test to the act of abortion we can see that we are more culpable than the Chinese.

Of course, there are some who will say that an abortion, in and of itself, is neither good nor bad; rather, it's no different than disposing of hamburger, both are just lifeless flesh. It's possible that such people have never laid their hand on a pregnant woman's stomach and felt the movement of a child in the womb. On the other hand, it is impossible that such people have ever felt a pound of packaged hamburger moving and kicking.

On this day, the 38th anniversary of the Roe v. Wade holding, we must stop and think. How can we look down our noses at China for its law of forced abortions while at the same time seeing ourselves as superior for our law of free abortions?

The abortion issue is the most important issue of our time. The next generation might well ask of us, like we have asked of Germans who lived next door to concentration camps during WWII, why more wasn't done to stop these murders. Six million people were killed under Nazism; 30,000,000 were killed under Stalinism, and approximately 54,000,000, so far, have been killed in the name of individualism since Roe v. Wade. (See statistics kept by the U.S. Center for Disease Control).

Mother Teresa said "the greatest destroyer of peace today is abortion because it is war against the child...A direct killing of the innocent child, murder by the mother herself...And if we can accept that a mother can kill even her own child, how can we tell other people not to kill one another?"

Friday, January 21, 2011

An Appeal Filed Before Trial Court's Intended Ruling is Untimely.

Late filing of a notice of appeal is always a fatal error, and sometimes filing too soon can also be fatal. The recent case of Silver v. American Fish Co., Inc. (2010) 198 Cal. App.4th 688, illustrates this point. Silver filed a notice of appeal after rendition of judgment and after the defendant filed a motion for attorney's fees and costs, but well before the trial court heard and ruled on the attorney's fees motion. By court rule, a notice of appeal filed after rendition of judgment or statement of intended ruling but before entry of judgment may be treated as being filed immediately after entry of judgment. (Cal. Rules of Court, rule 8.104(e)(1) and (2)). Such appeals are referred to as "premature" appeals, meaning they are timely though early.

Silver's appeal, however, did not come within the rule because his appeal was filed before the trial court announced its intended decision on the motion for attorney's fees. (Silver, supra at 691).

If the issue of entitlement to attorney's fees has been adjudicated prior to judgment, such that a judgment includes an award of attorney's fees and leaves only the amount to be determined later, then an appeal from the judgment would include the subsequent award of the amount of attorney's fees. (Silver, supra, citing Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998). But Silver could not bring himself within this rule because the trial court had not adjudicated the issue of entitlement until after Silver's notice of appeal was filed. As a result, Silver's attempted appeal from the award of attorney's fees was untimely, and since an appellate court lacks jurisdiction to hear an untimely appeal, Silver's appeal had to be dismissed.

Beware of Separately Appealable Post-Judgment Orders

Most litigators and trial attorneys know that an appeal from the final judgment includes an appellate court's review of all the non-appealable orders and rulings the trial court made before the final judgment. However, many attorneys mistakenly assume the appeal from the judgment also includes trial court orders made after the judgment. This assumption is a trap for the unwary because some post-judgment orders are separately appealable, meaning that another notice of appeal must be filed in order to secure appeallate review of the post-judgment order.

If a second, separate notice of appeal is not filed, then the appellate court has no jurisdiction to review the post-judgment order. Failure to timely secure appellate review means the separately-appealable order will become final and enforceable, i.e., collectible.

In most instances, post-judgment orders awarding attorney's fees are separately appealable, yet attorneys repeatedly fail to file a separate notice of appeal from the post-judgment award of attorney's fees, thinking that the notice of appeal from the final judgment includes the subsequent award of attorneys fees. (See for example: Silver v. American Fish Co., Inc., (2010) 190 Cal.App.4th 688, 690-694).

The term "separately appealable" means that an order may be appealable independently, and apart from, the appeal taken from the final judgment. In practical procedural terms, this means that one notice of appeal would be filed from the final judgment, and later, another notice of appeal would be filed from the "separately appealable" order. Most often, when two or more separate appeals are filed in the same case, the appellate court consolidates all the appeals.

Tuesday, January 4, 2011

Appeal Timely Though Filed 193 Days After Order

The last possible day to file a notice of appeal from an appealable order is 180 days after the signed order is filed. (Cal. Rules of Court, rule 8.104(d)(3)). But "what happens when a file-stamped appealable order disappears into the judicial equivalent of a sock drawer?" (In re Marriage of Mosley (2010) 2010 Cal. App. Lexis 2079). The Fourth Appellate District of the Court of Appeal of the State of California addressed this question and held that an order is not "filed" unless it is filed in a public place where its presence is capable of being known.

A proposed order modifying child and spousal support, prepared by the ex-husband, was signed by the court and file-stamped on April 1, 2010, but for unknown reasons, the order was not physically placed in the court's file, was not entered on the court's computerized case management system, and was not served on the parties. The appellant wife phoned the court to inquire about the order, but she was told by the court clerk that the judge would be getting to it as soon as she was able. When the appellant phoned back she was told nothing had been filed. On August 20, 2010, the court clerk located the order that had been "misplaced." On September 10, 2010, the order was entered into the court's computerized case management system. On October 1, 2010, the wife filed her notice of appeal from the order, 193 days after the file-stamped date of April 1, 2010.

The Court of Appeal issued an order to the parties that it was considering dismissing the appeal as untimely because the notice of appeal was filed more than 180 days after the appealable order modifying child and spousal support.

The appellant wife submitted a letter brief in response to the appellate court's order, along with evidence in the form of her sworn declaration, copies of her telephone records, and copies of her e-mails with respondent husband, all of which showed that the order had been misplaced and that she had been diligent in searching for it. Also, the court clerk submitted a declaration stating the order had been misplaced and had not been located until August 20, 2010. The respondent husband did not oppose or contradict any of the wife's evidence.

The Court of Appeal found that wife successfully rebutted the presumptive filing date of April 1, 2010, by showing that the order was not a public record and that she had been diligent in searching for it. Under these circumstances the Court of Appeal ruled that the 180-day limit, within which an appeal must be filed, begins to run from the date the appealable order was filed as a public record. Since the order was placed in the court's computerized case management system on September 10, 2010 (where it was presumably viewable by the public) the notice of appeal filed on October 1, 2010, was timely.

The Court of Appeal explained that the purpose of the 180-day time limit to appeal derives from the the need for finality. "Without an outside limit, orders could be appealed years after the fact based on deficiencies in service." Hence, "Litigants are on inquiry notice that a judgment may be forthcoming and have an outside deadline of 180 days from entry of that judgment to appeal." The lack of notice of entry of judgment does not stop the 180-day clock from running. The lack of notice does not jeopardize the judgment.

But, the 180-day rule presupposes that so-called "filed" documents in the offical record are open and available to the public. Such records need to be available to the public in order to avoid an absurdity and to preserve the constitutional right of appeal. "Without such a reasonable and sensible construction, trial courts (whether wittingly or unwittingly) could shield judgments from appellate review by holding them in pectore until the 180-day outside time limit had run its course. This plainly cannot be the law."