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TABLE OF CONTENTS

Page

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS................................ N/A

TABLE OF CONTENTS ...................................................................................... i

TABLE OF AUTHORITIES ................................................................................ iii

ISSUES PRESENTED ..................................................................................... 2

WHY REVIEW SHOULD BE GRANTED ............................................................. 3

STATEMENT OF FACTS AND CASE ................................................................. 8

ARGUMENT .................................................................................... 12

I. IN AN APPEAL NOT VOLUNTARILY TAKEN WITHOUT A REPORTERS TRANSCRIPT THE DENIAL OF A MOTION TO TAKE EVIDENCE CRITICAL TO RECONSTRUCTING THE TRIAL COURT PROCEEDINGS UNREASONABLY IMPEDES THE RIGHT TO A MEANINGFUL APPEAL . 12

II. THE CONSTITUTIONAL GUARANTEES OF DUE PROCESS, EQUAL PROTECTION, AND ACCESS TO THE COURTS REQUIRE PROVIDING APPELLANTS ALTERNATIVE METHODS OF RECONSTRUCTING THE TRIAL COURT PROCEEDINGS IN JURISDICTIONS THAT DO NOT PROVIDE COURT REPORTERS .................................................................. 15

A. In the Absence of a Compelling State Interest, the Unequal Treatment of Family Court Litigants Based On Geography is Prohibited by Equal Protection Principles .................................. 15

B. Under the Circumstances of this Case, Petitioners Right of Due Process of Law is Unreasonably Obstructed by the Denial of His Motion to Take Evidence on Appeal. .......................................... 17

C. Under the Circumstances of this Case, Petitioners Right of Access to the Courts is Unreasonably Obstructed by the Denial of His Motion to Take Evidence on Appeal ................................ 18

III. THE COURTS ORDER DENYING THE MOTION TO TAKE EVIDENCE AND JUDGMENT ROLL APPEAL POLICY INTERFERE WITH THE RIGHT TO A MEANINGFUL APPEAL ....................................................................... 18

CONCLUSION .................................................................................... 20

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CERTIFICATE OF WORD COUNT .................................................................. 22

PROOF OF SERVICE

COURT OF APPEAL DECISION

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TABLE OF AUTHORITIES

Published Cases Pages Denham v. Superior Court (1970) 2 Cal.3d 557 .......................................... 18

Garcia v. Santana (2009) 174 Cal.App.4th 464 ............................................. 18

Hearn v. Howard (2009) 117 Cal.App.4th 1193 ........................................... 20

In re Geoffrey G. (1979) 98 Cal.App.3d 412 ................................................ 20

In re Eric J. (1979) 25 Cal.3d 522 ................................................................. 16

In re King (1970) 3 Cal.3d 226 ..................................................................... 16

In re Marriage of Arceneaux (1990) 51 Cal.3d 1130 ................................... 18

In re Marriage of Flaherty (1982) 31 Cal.3d 637 ......................................... 17

In re Mary G (2007) 151 Cal.App.4th 184 ..................................................... 16

In re Zeth S. (2003) 31 Cal.4th 396 .............................................................. 14

Jersey v. John Muir Medical Center (2002) 97 Cal.App.4th 814 .................. 18

Kucker v. Kucker (2011) 192 Cal. App. 4th 90 .............................................. 20

Maria P. v. Riles (1987) 43 Cal.3d 1281 ...................................................... 19

Tupman v. Haberkern (1929) 203 Cal. 256 ................................................. 14

Unpublished Cases Pages Ballard v. Tuimavave

(3d Dist. 2008) No. C055067 .................................................................... 6

County of Colusa v. Crawshaw (3d Dist. 2008) No. C054929 .................................................................... 6

In re Marriage of Alvarez .............................................................................. 6 (3d Dist. 2010) No. C063155

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In re Marriage of Carvalho (2d Dist. 2010) No. B214701 ............................................................. 20

In re Marriage of Fathali ................................................................................ 6 (3d Dist. 2008) No. C057521 In re Marriage of Joann ................................................................................. 6 (3d Dist. 2009) No. 057967 In re Marriage of Nesbitt

(3d Dist. 2008) No. C058175 .................................................................... 6

In re Marriage of Sharma .............................................................................. 6 (3d Dist. 2011) No. C062094 Rucker v. Wells ..................................................................................... 6 (3d Dist. 2008) No. C054663 California Constitution ......................................................................... Pages

Article I, 11, 21 ................................................................................... 16

California Rules of Court ...................................................................... Pages

Rule 8.500(a)(1)........................................................................................ 1

Rule 8.500(b)(1).. ..................................................................................... 3

Rule 8.252(c).... ..................................................................................... 9

Rule 8.252(c)(3).... ................................................................................. 7

Rule 10.960(b).... ................................................................................. 18

California Statutes .............................................................................. Pages

Assembly Bill 590 (Sargent Shriver Civil Counsel Act)17, 19 (Government Code 68650-68651) Code of Civil Procedure

909 .................................................................... 1,7, 9, 12,14

Other Authorities

Elkins Family Law Task Force Final Report and Recommendations ...... 12

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ISSUES PRESENTED

1. Family courts throughout California have different court

reporter policies whereby some jurisdictions provide court reporters for all

hearings and trials, while other jurisdictions do not. In an appeal from a

family court jurisdiction which does not provide court reporters for all

hearings and trials, may an appellate court deny to an appellant a motion

to admit undisputed extrinsic documentary evidence that will help

reconstruct the trial court record in the absence of a reporters transcript?

2. Is there a compelling state interest which justifies dissimilar

appellate court treatment of family court litigants taking appeals from trial

court jurisdictions that do not provide court reporters?

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WHY REVIEW SHOULD BE GRANTED

Review is necessary in this case both to settle an important

question of law involving the record to which an indigent, involuntarily pro

per appellant is entitled and to secure uniformity of decision and practice

among the Courts of Appeal. (Cal. Rules of Court, rule 8.500(b)(1).) This

case presents issues of first impression, public policy and the

administration of justice. The issues affect similarly situated indigent,

involuntarily self-represented family court parties within the Third District,

and throughout the state. Family court litigants in jurisdictions that include

Contra Costa (First District), Santa Clara (Sixth District) and El Dorado

(Third District) counties are provided court reporter services for all family

court proceedings. In other jurisdictions, including counties within the

same three appellate court districts, court reporter services are not

provided or are only provided on advance request. This case originates in

Sacramento County, a jurisdiction that provides court reporters only by

advance request. Although most family law attorneys are aware of the

court reporter only by request policy, the family court does not provide

adequate notification about the policy to self-represented parties, many of

whom, including petitioner, are indigent, involuntarily self-represented,

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and face an opposing party with counsel. In addition, self-represented

parties in contested dissolution cases in Sacramento County family court

are provided through the office of the family law facilitator erroneous self-

help information indicating that court reporters are provided for all

hearings and trials. There does not appear to be a compelling state

interest which justifies the unequal treatment of family court users in

Sacramento County versus similarly situated family court litigants in

Contra Costa, Santa Clara and El Dorado County. The ramifications of

taking a family court appeal without a reporters transcript are uniquely

severe in the Third District Court of Appeal.

When a self-represented party takes an appeal from the

Sacramento County family court without a reporters transcript, the Third

District Court of Appeal designates it as a judgment roll appeal. Although

the historical body of decisional law that applies to judgment roll appeals

makes clear that the designation is appropriate only where an appeal is

deliberately and voluntarily, or for tactical reasons, taken on the judgment

roll, the Third District apparently applies the designation to all family court

appeals that do not include a reporters transcript. Contrary to controlling

precedent, the court does not appear to distinguish cases where an

indigent pro per party does not voluntarily and deliberately take an appeal Ca

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without a reporters transcript. An appeal without a transcript is by the

Third District subjected to the judgment roll standard of review, which

rarely, if ever, does not result in affirmance. The judgment roll standard

restricts review to determining whether any error appears on the face of

the record. As the standard is explained by the Third District in

unpublished decisions, the court must conclusively presume evidence was

presented that is sufficient to support the trial courts findings. The

standard is indisputably harsher on appellants than the substantial

evidence, abuse of discretion, or independent review standards. Pro per

parties taking an appeal from trial court jurisdictions which provide court

reporters benefit from review under the substantially more favorable

standards.

The uniqueness of the Third District judgment roll policy is

corroborated by review of published and unpublished appellate court

decisions from all districts, which show that the Third District applies the

judgment roll designation and standard of review far more often than any

other court of appeal. There does not appear to be a compelling state

interest which justifies this unequal treatment of family court litigants

based solely on geography. Calif

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While it is reasonable to assume that many attorneys are aware of

the Third Districts judgment roll appeal policy, it is equally reasonable to

infer that few, if any, self-represented family court parties are. The Third

District apparently has never published a family court decision disclosing

the policy. The policy can only be found in unpublished Third District

family court decisions.2

After the first trial court hearing in this case, which addressed

several issues including pendente lite attorney fees and support, petitioner

took this appeal. Prior to the trial court hearing, petitioner relied on the

self-help material provided through the office of the family law facilitator

and believed that court reporters were provided for all family court

proceedings.3 The lack of a reporters transcript in this appeal therefore is

not a voluntary or tactical choice made by petitioner.

2 Although unpublished opinions are available at the California Official Reports website for only 60 days, the Google Scholar search engine archives unpublished opinions indefinitely. The Google archive indicates that virtually every unpublished Third District family court case without a reporters transcript is designated a judgment roll appeal. Examples include Ballard v. Tuimavave (2008) No. C055067; County of Colusa v. Crawshaw (2008) No. C054929; In re Marriage of Alvarez (2010) No. C063155; In re Marriage of Joann (2009) No. C057967; In re Marriage of Nesbitt (2009) No. C058175; Rucker v. Wells (2008) No. C054663; In re Marriage of Fathali (2008) No. C057521; In re Marriage of Sharma (2011) No. C062094. 3 There is at least circumstantial evidence that Sacramento County directly or indirectly discourages court reporter requests: A comparison of

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As a means of partly mitigating the lack of a reporters transcript,

petitioner filed a Code of Civil Procedure 909 motion to take evidence on

appeal. Under Cal. Rules of Court rule 8.252(c)(3), which permits

admission of documentary evidence without a hearing, petitioner sought

to admit two pages of undisputed extrinsic documentary records which

reconstructed a portion of the trial court hearing at issue. In other

jurisdictions, the same evidence would be part of the record on appeal

because it would be memorialized in the reporters transcript. In a single

sentence order, the Court of Appeal denied the motion. The courts

refusal to allow the admission of the evidence aggravates the inherently

grave implications of the court reporter policy of Sacramento County, and

underscores the disadvantages faced by family court parties in

jurisdictions that do not provide court reporters for all family court

proceedings.

Under these circumstances, the denial of the motion to take

evidence on appeal is contrary to the constitutional principles of due

process, equal protection of the laws, and access to the courts. The courts

practice of restricting the admission of evidence deprives a class of

unpublished cases among all appellate courts shows that a disproportionate number of appeals originating from Sacramento County are taken without a reporters transcript.

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appellants in general, and in this case, of a basic prerequisite for a

meaningful and fair appeal: the opportunity to present a relevant and

complete record for review, and the ability to seek a fair and appropriate

standard of review.

STATEMENT OF FACTS AND CASE

This petition arises in the context of an appeal from more than a

dozen collateral final orders from the first and only trial court hearing in

this case, held on October 27, 2011. The orders include denials or failure

to rule on oral and written requests for pendente lite attorney fees,

temporary support, a continuance, motion to strike, sanctions payable to

the court, and orders granting requests for residence exclusion, and

attorney fee sanctions.

There were troublesome irregularities in the post-hearing

proceedings. The minute orders issued by the trial court did not include

the legal and factual basis for most rulings, and omitted other rulings

entirely. In writing, petitioner brought the minute order errors and

omissions to the attention of the court several times. The court declined

to respond to petitioners written requests to correct the record. The trial

court also rejected petitioners proposed orders after hearing (OAH), Ca

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which corrected most of the errors and omissions, and instead endorsed

the OAH submitted by opposing counsel, which mirrored the defective

minute orders. Ultimately, the trial court judge declined four opportunities

to put into the record the legal and factual basis for the orders that were

memorialized, and to memorialize the omitted orders.

At the end of the trial court hearing, petitioner asked the judge how

to obtain the record of the hearing, and was told there was no transcript

because neither party had requested a court reporter prior to the hearing.

As a result, Petitioner took this appeal on the clerks transcript alone.

Because both the trial court and opposing counsel vigorously and

successfully thwarted petitioners attempts to correct the defective

minute orders and OAH so that they accurately reflected the trial court

proceedings, it would have been a manifestly futile act for petitioner to

seek an agreed or settled statement on appeal.

On August 26, 2011, petitioner brought in the Court of Appeal a

Code of Civil Procedure 909 motion to take evidence on appeal. The

motion was made pursuant to the interests of justice provision of 909,

and Cal. Rules of Court rule 8.252(c), which permits the admission of

documentary evidence without a hearing. The motion was necessitated by

the absence of a reporters transcript, and the incomplete minute orders Ca

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and OAH, and did not request or require factual findings or

determinations. The extrinsic evidence consisted of two undisputed

documents authored by opposing counsel which memorialized (1) sua

sponte constructive orders issued in open court by the trial court judge,

and (2) sanction payment terms orally requested by opposing counsel at

the hearing, but denied by the judge. The documents are included with the

appellate court order attached to this petition. Among other things, the

documents memorialize important, non-cumulative material facts which

were omitted from the minute orders, and omitted from the OAH drafted

by opposing counsel and adopted by the trial court. And under the Third

Districts judgment roll standard of review, the records reveal error on the

face of the minute order and OAH records.

On Sept. 6, 2011 respondent filed an opposition to the motion to

take evidence. On Sept. 7, by telephone petitioner notified the Court of

Appeal that he would file a reply to the opposition. Petitioner received the

opposition pleading by mail on Sept. 8, and mailed a reply to the

opposition to the court on Sept. 9. Before receiving the reply, the court

issued a ruling denying the motion on Sept. 8. The one sentence ruling,

which also returned to petitioner the rejected documentary evidence, is

attached to this petition. Ca

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The opposition pleading was drafted by an experienced appellate

attorney who court records show has since 2007 been associated with

more than 15 cases in the Third District Court of Appeal. It is logical to

assume that the attorney is aware of the judgment roll appeal policy of the

court. In the opposition pleading, the attorney did not dispute the

accuracy of the extrinsic documentary evidence, nor make an argument

against the appellate court exercising discretion to admit the evidence

under the interests of justice provisions of 909. The opposition simply

decreed that the motion to take evidence was instead a motion to

redesignate the record or a motion to augment, and, as either, was

untimely.

This petition seeks review of the courts order denying the motion

to take evidence. In doing so, it also challenges the circumstances which

compelled the motion: the lack of a reporters transcript and the

geography-based unequal treatment of petitioner, and similarly situated

dissolution parties in California.

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ARGUMENT

I. IN AN APPEAL NOT VOLUNTARILY TAKEN WITHOUT A REPORTERS

TRANSCRIPT THE DENIAL OF A MOTION TO TAKE EVIDENCE CRITICAL TO RECONSTRUCTING THE TRIAL COURT PROCEEDINGS UNREASONABLY

IMPEDES THE RIGHT TO A MEANINGFUL APPEAL

In its final report, the Elkins Family Law Task Force emphasized the

importance of protecting the appeal rights of family court litigants.

Access to the record in family law is a serious access-to-justice issue and must be significantly improved both to ensure that parties understand and can finalize the courts orders and to ensure that the parties right to appeal is protected. Parties current inability to access the record in their family law proceedings is an area of long-standing concern. This inability to have an accurate record of their family law cases makes the ability of family law litigants to appeal often illusory. (Judicial Council of Cal., Admin. Off. Of Cts., Elkins Family Law Task Force, Final Report and Recommendations (2010) p. 80 8.) Under the circumstances of this case, the denial of petitioners

motion to take evidence on appeal unreasonably impedes his ability and

right to have an accurate and complete record of the trial court

proceedings. The circumstances include the lack of a reporters transcript,

and trial court orders containing material errors and omissions. Code of

Civil Procedure 909 provides that a reviewing court may take additional

evidence of or concerning facts occurring at any time prior to the decision

of the appeal for any purpose in the interests of justice. The principle that Ca

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new evidence on appeal must enable the appellate court to affirm the

judgment, not lead to reversal, does not apply under the circumstances

presented in this case. As Petitioners motion to take evidence on appeal

explained:

Pursuant to Rule 8.252, subdivision (c), of the California Rules of Court, the Appellant, Steven R. James, moves this Court to take two pages of documentary evidence for the purpose of reconstructing the trial court proceedings. The documents are a record of relevant portions of the trial court hearing at issue in this appeal. This motion is made pursuant to Code Civ. Proc. 909 and on the grounds that because there is no reporters transcript in this appeal, the evidence is critical to a fair, informed, and meaningful determination of the appeal. The evidence provides material and non-cumulative facts recorded by Respondents attorney one and two days after the Oct. 27, 2010 hearing.

The motion to take evidence consisted of a five-page declaration

and an 11-page memorandum of points and authorities. The declaration

and memorandum detailed the purpose and justification for the motion:

As explained herein, the trial court record is incomplete and requires reconstruction because several orders were not adequately memorialized, and because there is no reporters transcript. (Declaration of Steven R. James (James Decl.,) at 3-7) In the trial court proceedings, Appellant made extensive efforts to ensure an accurate record of the orders was produced. Appellants efforts were rebuffed by both the trial court judge, and Respondents attorney. (James Decl., at 9, 14)

In this motion, Appellant requests this court take evidence consisting of one letter and one email written one and two days, respectively, after the hearing at issue. The

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letter and email, written by Respondents attorney, reference orders issued by the trial court that were not memorialized in the minute orders and orders after hearing (OAH). (Ibid.) Both the attorney and the trial court declined Appellants multiple post-hearing written requests that the orders be memorialized in a statement of decision or the subsequent OAH. (Ibid.) The records are a material admission by the attorney that the orders were issued. (James Decl., at 9, 17) Immediately after the hearing, two of the orders were used by the attorney, along with a sanctions threat, to coerce Appellant to drop all pending matters. (James Decl., at 10)

The denial of a motion to take evidence on appeal under these facts

constitutes abuse of discretion by the court of appeal. In the language of

909, the Legislature directed that the statute be liberally construed.

Virtually all of the precedent interpreting 909, from Tupman v.

Haberkern (1929) 203 Cal. 256 through In re Zeth S. (2003) 31 Cal.4th 396

are inapplicable under these circumstances because they presuppose a

reporters transcript, and the holdings pertain to evidentiary findings by a

reviewing court. Where, as here, a reporters transcript is not part of the

record on appeal, and the lack of a transcript is not voluntary or based on

a tactical decision, decisional law assuming a reporters transcript is

inapposite. The records petitioner seeks to admit as evidence have never

been disputed and will not usurp the fact finding authority of the trial

court. This application of 909 is essentially an issue of first impression Ca

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necessitated by court austerity measures which have reduced court

reporter services in some jurisdictions but not others. Petitioner and

similarly situated family court litigants throughout the state are subject to

this difficult situation, and this court should grant review to ensure

uniformity of decisions and practice among the Courts of Appeal.

II. THE CONSTITUTIONAL GUARANTEES OF DUE PROCESS, EQUAL

PROTECTION, AND ACCESS TO THE COURTS REQUIRE PROVIDING APPELLANTS ALTERNATIVE METHODS OF RECONSTRUCTING THE TRIAL

COURT PROCEEDINGS IN JURISDICTIONS THAT DO NOT PROVIDE COURT REPORTERS

A. In the Absence of a Compelling State Interest, the

Unequal Treatment of Family Court Litigants Based On Geography is Prohibited by Equal Protection Principles.

Family courts in Santa Clara, Contra Costa, El Dorado and other

counties provide court reporters for all family court proceedings.

Sacramento County provides court reporters only on advance request of a

party, does not adequately notify self-represented litigants of the court

reporter policy, and provides erroneous self-help information to pro per

parties in contested cases indicating court reporters are provided for all

proceedings. Depending on where they reside, family court litigants

throughout California may or may not be provided a reporters transcript

on appeal. The concept of the equal protection of the laws compels

recognition of the proposition that persons similarly situated with respect

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to the legitimate purpose of the law receive like treatment. (In re Eric J.

(1979) 25 Cal.3d 522, 531.) It is basic that the guarantees of equal

protection embodied in the Fourteenth Amendment to the United States

Constitution, and article I, sections 11 and 21, of the California

Constitution, prohibit the state from arbitrarily discriminating among

persons subject to its jurisdiction. This principle, of course, does not

preclude the state from drawing any distinctions between different groups

of individuals, but does require that, at a minimum, classifications which

are created bear a rational relationship to a legitimate government

purpose. In cases involving suspect classifications or touching on

fundamental interests the state bears the burden of establishing not only

that it has a compelling interest which justifies the law, but that

distinctions drawn by the law are necessary to further its purpose. (In re

King (1970) 3 Cal. 3d 226, 232.) In a voluntary parentage case, the Fourth

District Court of Appeal held that sections of the family code violated

equal protection principles. [T]he disparate treatment here is based solely

on geography, and location of a father inside or outside the state bears no

more relation to the purposes of the presumed father statute than

differing locations of fathers within California. (In re Mary G. (2007) 59

Cal.Rptr. 3d 703, 714 [emphasis added].) Ca

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In 2009, the Legislature passed Assembly Bill 590, which, among

other provisions, set up pilot programs to provide funding for indigent

litigants in cases where the opposing party has counsel.

The doctrine of equal justice under the law is based on two principles. One is that the substantive protections and obligations of the law shall be applied equally to everyone, no matter how high or low their station in life. The second principle involves access to the legal system. Even if we have fair laws and an unbiased judiciary to apply them, true equality before the law will be thwarted if people cannot invoke the laws for their protection. For persons without access, our system provides no justice at all, a situation that may be far worse than one in which the laws expressly favor some and disfavor others. (AB 590 [Feuer]; Stats. 2009, ch. 457, pp. 3-4.)

B. Under the Circumstances of this Case, Petitioners Right of Due Process of Law is Unreasonably Obstructed by the Denial of His Motion to Take Evidence on Appeal

Without admission of the extrinsic evidence, petitioners right to a

fair and meaningful appeal, encompassed by the constitutional guarantee

of due process, is substantially hindered. Due process is a flexible concept,

and must be tailored to the requirements of each particular situation. The

very nature of due process negates any concept of inflexible procedures

universally applicable to every imaginable situation. (In re Marriage of

Flaherty (1982) 31 Cal.3d 637, 650.) Where a party is denied a reporters

transcript, and denied the ability to reconstruct the trial court record by

other means, due process is implicated. This is an issue of first impression

that affects similarly situated family court parties throughout the state,

and therefore should be reviewed by this court.

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C. Under the Circumstances of this Case, Petitioners Right of Access to the Courts is Unreasonably Obstructed by the Denial of His Motion to Take Evidence on Appeal

The constitutional right of access to the courts in California is well

established. (See Garcia v. Santana (2009) 174 Cal.App.4th 464, 471-473

[tracing to 1917 the history of the right of access to the courts in

California].) Numerous cases, in a variety of contexts, may be cited for the

obvious importance of this right to our system of government and, indeed,

to the very fabric of our society [Citations]. (Jersey v. John Muir Medical

Center (2002) 97 Cal.App.4th 814, 831.) Providing access to justice for self-

represented litigants is a priority for California courts. (Cal. Rules of Court

rule 10.960(b).) Under the circumstances of this case, the Court of

Appeals denial of petitioners motion to take evidence on appeal

unreasonably obstructs petitioners right of access to the courts.

III. THE COURTS ORDER DENYING THE MOTION TO TAKE EVIDENCE AND JUDGMENT ROLL APPEAL POLICY INTERFERE WITH THE RIGHT TO A

MEANINGFUL APPEAL An adequate record of the trial court proceedings is indisputably

the single most critical prerequisite to an appeal. Without it, neither the

court nor the parties can ascertain what occurred and what errors, if any,

were committed. The governing principle of appellate review is that [a]

judgment or order of a lower court is presumed to be correct on appeal

(In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133), and error

must be affirmatively shown (Denham v. Superior Court (1970) 2 Cal.3d

557, 564). Because the burden is on the appellant to overcome the

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presumption of correctness, the appellant must procure an adequate

appellate record to demonstrate error, and failure to do so will result in

affirmance of the order appealed from. (Maria P. v. Riles (1987) 43 Cal.3d

1281, 1295-1296.)

Petitioner is at a substantial disadvantage in this case because he is

indigent and involuntarily self-represented, while the opposing party has

two experienced attorneys. The Legislature has specifically recognized the

substantial challenges faced by pro per parties in cases where the

opposing party has counsel.

Many judicial leaders acknowledge that the disparity in outcomes is so great that indigent parties who lack representation regularly lose cases that they would win if they had counsel. A growing body of emphirical research confirms the widespread perception that parties who attempt to represent themselves are likely to lose, regardless of the merits of their case, particularly when the opposing party has a lawyer, while parties represented by counsel are far more likely to prevail. (AB 590 [Feuer]; Stats. 2009, ch. 457, p. 4.)

Petitioner and similarly situated parties taking appeals in the Third

District face the additional hurdle of having an appeal designated as a

judgment roll appeal. In virtually all family court appeals without a

reporters transcript, the court limits its review to determining whether

any error appears on the face of the record. The court states that it must

conclusively presume evidence was presented that is sufficient to support

the trial courts findings. The standard is indisputably harsher on

appellants than the substantial evidence, abuse of discretion, or Ca

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independent review standards. Pro per parties taking an appeal from trial

court jurisdictions which provide court reporters benefit from review

under the substantially more favorable standards. In other appellate court

jurisdictions, even appeals without a reporters transcript are rarely

subjected to the judgment roll appeal standard of the Third District.4 To

ensure uniformity of decisions and settle this important question of law,

the court should grant review.

CONCLUSION

Under the conditions presented in this case, the denial of a motion

to take evidence on appeal unfairly impedes the right to a meaningful

appeal, due process of law, equal protection, and access to the courts, and

constitutes abuse of discretion. There is no compelling state interest which

justifies the unequal treatment based on geography of petitioner, and

similarly situated, indigent pro per family court litigants in the jurisdiction

of the Third District, and throughout the state. There is no rational

justification for the judgment roll appeal policy of the Third District

4 See, e.g., Hearn v. Howard (2009) 117 Cal.App.4th 1193 (Second District) [applying abuse of discretion standard]; In re Marriage of Carvalho (2010) No. B214701 (Unpublished Second District) [designating judgment roll appeal but applying substantial evidence and abuse of discretion standards]; Kucker v. Kucker (2011) 192 Cal.App.4th 90 (Second District) [designating as judgment roll appeal then applying independent review standard and reversing] In re Geoffrey G. (1979) 98 Cal.App.3d 412 (Fifth District) [applying abuse of discretion standard].

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COURT OF APPEAL ORDER

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Attachment 1: October 28, 2010 Letter from Paula D. Salinger to Steven James

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Attachment 2: October 29, 2010 Email from Paula D. Salinger to Steven James

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PROOF OF SERVICE

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Court data last updated: 07/16/2015 01:35 PM

Case Summary Docket BriefsDisposition Parties and Attorneys Lower Court

Docket (Register of Actions)JAMES, MARRIAGE OFCase Number S197327

Date Description Notes

10/20/2011 Received untimely petition for review

Appellant: Steven Richard JamesPro Per

10/20/2011 Letter sent to: Steven Richard James, appellant, in pro per, to submit Application for Relief from Default.

10/20/2011 Application for relief from default filed

10/25/2011 Application for relief from default denied (case closed)

Click here to request automatic e-mail notifications about this case.

Careers | Contact Us | Accessibility | Public Access to Records | Terms of Use | Privacy 2014 Judicial Council of California / Administrative Office of the Courts

1Stephen James

From: Stephen James @gmail.com>Sent: Wednesday, March 14, 2012 3:02 PMTo:Subject: Follow Up to Judicial Administrative Records RequestAttachments: 2011-10-19-LetterRePostage.pdf; PhoneCallRecords.pdf; AmicusRequestReplies.pdf;

PetForReview.pdf; Jan&FebRequestLetters.pdf; 2012-03-06-OhlrichEmail.pdf; 2011-10-19-LetterRePostage.pdf; PhoneCallRecords.pdf; AmicusRequestReplies.pdf; PetForReview.pdf; Jan&FebRequestLetters.pdf; 2012-03-06-OhlrichEmail.pdf

Dear Justice Chin, On March 5 I wrote to the court to ask for help with a January request for judicial administrative records, and a February follow-up request. The next day I received a response from Frederick Ohlrich. On March 9, from Mr. Ohlrich I received the requested records. Based on what the records show, I am now writing to convey several concerns about irregularities in the courts handling of a petition for review I filed in October, 2010. I mailed the petition for review to the court at midnight on October 18, 2010, the last day of the 10-day window in which the petition could be filed. The petition was mailed at that hour because in the process of printing the required 14 petition copies, my computer printer broke down earlier that day. The postal receipt for the priority mail postage used to mail the petition reflects a date of Oct. 18, and a time of 11:58 p.m. Under Cal. Rules of Court rule 8.25(b)(3)(A), the petition therefore was timely. However, the actual postage sticker affixed to the envelope reflects a date of Oct. 19, 2010. To clarify any confusion over the conflicting dates, the next day I sent a letter to the court explaining why the postage sticker on the envelope reflected a date of Oct. 19. A copy of my letter to the court is attached to this email as the pdf file 2011-10-19-LetterRePostage. The letter included a copy of the post office receipt for the priority mail postage used to mail the petition (rule 825(b)(3)(A)). As a precaution, at the end of the letter, I requested relief from default under rule 8.500(e)(2) if for any reason the petition is deemed untimely. This letter was mailed Oct. 20. On Oct. 21 I received a form letter from the court regarding the timeliness of the petition. I called the court to explain the letter I had sent the day before, and also to ask if I should revise and resend my letter pursuant to the instructions in the courts form letter, which said a request for relief should include a sworn verification. On the phone, I was told that based on the postage date mix-up I didnt need to revise and resend my letter, and it was inferred that my petition would be considered timely. The phone record for this six minute call is attached as the pdf file PhoneCallRecords. The first concern I am writing to convey is that this phone call is not reflected in the case docket. During this same time period, I sent out a number of emails seeking amicus curiae support for my petition. David Ettinger, the president of the California Academy of Appellate Lawyers reviewed my petition and approved it for submission to the Academys amicus curiae committee. I also received responses from law school professors at Stanford, Hastings, USC, UCLA, University of San Diego, and two Bay Area Legal Aid attorneys indicating that my petition had merit and raised an important issue. Copies of these emails are attached as the pdf file AmicusRequestReplies. On Oct. 25 I received an email from Mr. Ettinger withdrawing consideration of the petition by the Academy because that day the Supreme Court docket reflected that the case had been closed based on denial of an application for relief from default. Assuming a mistake had been made, that afternoon I called the court and was informed that the chief justice had denied my request for relief from default. During this call, I recounted what I had previously been told by court staff and that it was my understanding that, based on my Oct. 20 letter and post office receipt, my petition had never been in default. Although the clerk I talked to seemed as baffled about the dismissal as I was, she said the decision was made by the chief justice and was final. This five minute phone call is reflected in the attached phone records. This call also was not memorialized in the court docket.

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2 I researched the procedure for reconsideration of the order, and finding nothing in the Rutter Group publication California Practice Guide-Civil Appeals and Writs (which I used in drafting my petition) I called the court two days later to ask if there was a court rule or other reference providing for reconsideration of the order. I was told the order was final and no reconsideration process was available. The attached phone records reflect four phone calls on Oct. 27: three outgoing calls from me, and one incoming call from the court. The court docket does not reflect this communication. My petition for review is attached to this email. The petition raised several issues that are unique to the Third District Court of Appeal, and to Sacramento County Superior Court. A component of the issues is an unusual and unusually harsh standard of review which the Third District currently applies to all appeals without a reporters transcript (RT), regardlessof whether the appeal was deliberately and voluntarily taken without a RT. The 3rd District gets a disproportionate number of appeals of this type because Sacramento County family court does not provide court reporters for all hearings and trials. I explain this situation in the Why Review Should Be Granted portion of the petition. I find myself in an awkward position because at the time I submitted the petition, I assumed that the chief justice would not participate in the case because she is the author or co-author of several of the more than 25 unpublished 3rd District opinions which reflect the standard of review policy I contend violates the due process, equal protection and access to the courts constitutional rights of mostly indigent and self-represented family court parties like myself. The chief justice is a co-author of two of the opinions (Alvarez and Nesbitt) I cite at footnote 2 on page six of the petition, and the primary author of InreMarriageofNewby (No. C062596), filed December 27, 2010 - one of her last opinions before taking the helm at the Supreme Court. In Newby, the chief justice used the standard of review which I contend is unconstitutional as it is applied under the circumstances in Newby, the 25+ other cases, and my own case. I have great respect for the judicial branch, and with all due respect to the chief justice and to the court, the chief justices failure to recuse, and summary dismissal of my petition for review nonetheless conveyed the appearance that she wanted to prevent consideration of the petition by the full court. In January 2012 I made a request for judicial administrative records to the court. I requested statistical and case data regarding the number of untimely petitions for review which the court receives. I didnt receive a response to the request, and sent a follow-up letter in February. Both letters are attached to this email as the file Jan&FebRequestLetters. On March 5, I sent an email to Justices Werdegar, Liu and Baxter asking for help with the request. On March 6, I received a response from Mr. Ohlrich acknowledging my letters from January and February were properly addressed, but that the letters may have been improperly routed. Mr. Olrichs email is attached as the file 2012-03-06-OhlrichEmail. I received the requested records on March 9, 2012. The records show that in 2011 the court granted relief from default for 43 civil appeal petitions for review filed late. Most were filed late by a week or more, and several were months late. The court denied relief from default in 16 civil appeal cases. These cases were late by days, weeks or months. As I have found no reference for the criteria the court uses in assessing a request for relief from default, I cannot make any firm conclusions from this data. But if my petition for review was somehow construed as being untimely, it stands alone as being dismissed for being less than one day late. I am writing to convey this information to the full court, and to express that I find the totality of these circumstances to be troublesome. Sincerely, Stephen James Stephen James Independent Investigative Journalism & Photography www.stephenjames.us

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1Stephen James

From: Stephen James @gmail.com>Sent: Wednesday, March 14, 2012 3:11 PMTo:Subject: Judicial Administrative Records Request Follow-UpAttachments: 2011-10-19-LetterRePostage.pdf; PhoneCallRecords.pdf; AmicusRequestReplies.pdf;

PetForReview.pdf; Jan&FebRequestLetters.pdf; 2012-03-06-OhlrichEmail.pdf; 2011-10-19-LetterRePostage.pdf; PhoneCallRecords.pdf; AmicusRequestReplies.pdf; PetForReview.pdf; Jan&FebRequestLetters.pdf; 2012-03-06-OhlrichEmail.pdf

Dear Justice Corrigan, On March 5 I wrote to the court to ask for help with a January request for judicial administrative records, and a February follow-up request. The next day I received a response from Frederick Ohlrich. On March 9, from Mr. Ohlrich I received the requested records. Based on what the records show, I am now writing to convey several concerns about irregularities in the courts handling of a petition for review I filed in October, 2010. I mailed the petition for review to the court at midnight on October 18, 2010, the last day of the 10-day window in which the petition could be filed. The petition was mailed at that hour because in the process of printing the required 14 petition copies, my computer printer broke down earlier that day. The postal receipt for the priority mail postage used to mail the petition reflects a date of Oct. 18, and a time of 11:58 p.m. Under Cal. Rules of Court rule 8.25(b)(3)(A), the petition therefore was timely. However, the actual postage sticker affixed to the envelope reflects a date of Oct. 19, 2010. To clarify any confusion over the conflicting dates, the next day I sent a letter to the court explaining why the postage sticker on the envelope reflected a date of Oct. 19. A copy of my letter to the court is attached to this email as the pdf file 2011-10-19-LetterRePostage. The letter included a copy of the post office receipt for the priority mail postage used to mail the petition (rule 825(b)(3)(A)). As a precaution, at the end of the letter, I requested relief from default under rule 8.500(e)(2) if for any reason the petition is deemed untimely. This letter was mailed Oct. 20. On Oct. 21 I received a form letter from the court regarding the timeliness of the petition. I called the court to explain the letter I had sent the day before, and also to ask if I should revise and resend my letter pursuant to the instructions in the courts form letter, which said a request for relief should include a sworn verification. On the phone, I was told that based on the postage date mix-up I didnt need to revise and resend my letter, and it was inferred that my petition would be considered timely. The phone record for this six minute call is attached as the pdf file PhoneCallRecords. The first concern I am writing to convey is that this phone call is not reflected in the case docket. During this same time period, I sent out a number of emails seeking amicus curiae support for my petition. David Ettinger, the president of the California Academy of Appellate Lawyers reviewed my petition and approved it for submission to the Academys amicus curiae committee. I also received responses from law school professors at Stanford, Hastings, USC, UCLA, University of San Diego, and two Bay Area Legal Aid attorneys indicating that my petition had merit and raised an important issue. Copies of these emails are attached as the pdf file AmicusRequestReplies. On Oct. 25 I received an email from Mr. Ettinger withdrawing consideration of the petition by the Academy because that day the Supreme Court docket reflected that the case had been closed based on denial of an application for relief from default. Assuming a mistake had been made, that afternoon I called the court and was informed that the chief justice had denied my request for relief from default. During this call, I recounted what I had previously been told by court staff and that it was my understanding that, based on my Oct. 20 letter and post office receipt, my petition had never been in default. Although the clerk I talked to seemed as baffled about the dismissal as I was, she said the decision was made by the chief justice and was final. This five minute phone call is reflected in the attached phone records. This call also was not memorialized in the court docket.

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I researched the procedure for reconsideration of the order, and finding nothing in the Rutter Group publication California Practice Guide-Civil Appeals and Writs (which I used in drafting my petition) I called the court two days later to ask if there was a court rule or other reference providing for reconsideration of the order. I was told the order was final and no reconsideration process was available. The attached phone records reflect four phone calls on Oct. 27: three outgoing calls from me, and one incoming call from the court. The court docket does not reflect this communication. My petition for review is attached to this email. The petition raised several issues that are unique to the Third District Court of Appeal, and to Sacramento County Superior Court. A component of the issues is an unusual and unusually harsh standard of review which the Third District currently applies to all appeals without a reporters transcript (RT), regardlessof whether the appeal was deliberately and voluntarily taken without a RT. The 3rd District gets a disproportionate number of appeals of this type because Sacramento County family court does not provide court reporters for all hearings and trials. I explain this situation in the Why Review Should Be Granted portion of the petition. I find myself in an awkward position because at the time I submitted the petition, I assumed that the chief justice would not participate in the case because she is the author or co-author of several of the more than 25 unpublished 3rd District opinions which reflect the standard of review policy I contend violates the due process, equal protection and access to the courts constitutional rights of mostly indigent and self-represented family court parties like myself. The chief justice is a co-author of two of the opinions (Alvarez and Nesbitt) I cite at footnote 2 on page six of the petition, and the primary author of InreMarriageofNewby (No. C062596), filed December 27, 2010 - one of her last opinions before taking the helm at the Supreme Court. In Newby, the chief justice used the standard of review which I contend is unconstitutional as it is applied under the circumstances in Newby, the 25+ other cases, and my own case. I have great respect for the judicial branch, and with all due respect to the chief justice and to the court, the chief justices failure to recuse, and summary dismissal of my petition for review nonetheless conveyed the appearance that she wanted to prevent consideration of the petition by the full court. In January 2012 I made a request for judicial administrative records to the court. I requested statistical and case data regarding the number of untimely petitions for review which the court receives. I didnt receive a response to the request, and sent a follow-up letter in February. Both letters are attached to this email as the file Jan&FebRequestLetters. On March 5, I sent an email to Justices Werdegar, Liu and Baxter asking for help with the request. On March 6, I received a response from Mr. Ohlrich acknowledging my letters from January and February were properly addressed, but that the letters may have been improperly routed. Mr. Olrichs email is attached as the file 2012-03-06-OhlrichEmail. I received the requested records on March 9, 2012. The records show that in 2011 the court granted relief from default for 43 civil appeal petitions for review filed late. Most were filed late by a week or more, and several were months late. The court denied relief from default in 16 civil appeal cases. These cases were late by days, weeks or months. As I have found no reference for the criteria the court uses in assessing a request for relief from default, I cannot make any firm conclusions from this data. But if my petition for review was somehow construed as being untimely, it stands alone as being dismissed for being less than one day late. I am writing to convey this information to the full court, and to express that I find the totality of these circumstances to be troublesome. Sincerely, Stephen James

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1Stephen James

From: Stephen James @gmail.com>Sent: Wednesday, March 14, 2012 2:47 PMTo:Subject: Judicial Administrative Records Request Follow-UpAttachments: 2011-10-19-LetterRePostage.pdf; PhoneCallRecords.pdf; AmicusRequestReplies.pdf;

PetForReview.pdf; Jan&FebRequestLetters.pdf; 2012-03-06-OhlrichEmail.pdf; 2011-10-19-LetterRePostage.pdf; PhoneCallRecords.pdf; AmicusRequestReplies.pdf; PetForReview.pdf; Jan&FebRequestLetters.pdf; 2012-03-06-OhlrichEmail.pdf

Dear Justice Liu, On March 5 I wrote to the court to ask for help with a January request for judicial administrative records, and a February follow-up request. The next day I received a response from Frederick Ohlrich. On March 9, from Mr. Ohlrich I received the requested records. Based on what the records show, I am now writing to convey several concerns about irregularities in the courts handling of a petition for review I filed in October, 2010. I mailed the petition for review to the court at midnight on October 18, 2010, the last day of the 10-day window in which the petition could be filed. The petition was mailed at that hour because in the process of printing the required 14 petition copies, my computer printer broke down earlier that day. The postal receipt for the priority mail postage used to mail the petition reflects a date of Oct. 18, and a time of 11:58 p.m. Under Cal. Rules of Court rule 8.25(b)(3)(A), the petition therefore was timely. However, the actual postage sticker affixed to the envelope reflects a date of Oct. 19, 2010. To clarify any confusion over the conflicting dates, the next day I sent a letter to the court explaining why the postage sticker on the envelope reflected a date of Oct. 19. A copy of my letter to the court is attached to this email as the pdf file 2011-10-19-LetterRePostage. The letter included a copy of the post office receipt for the priority mail postage used to mail the petition (rule 825(b)(3)(A)). As a precaution, at the end of the letter, I requested relief from default under rule 8.500(e)(2) if for any reason the petition is deemed untimely. This letter was mailed Oct. 20. On Oct. 21 I received a form letter from the court regarding the timeliness of the petition. I called the court to explain the letter I had sent the day before, and also to ask if I should revise and resend my letter pursuant to the instructions in the courts form letter, which said a request for relief should include a sworn verification. On the phone, I was told that based on the postage date mix-up I didnt need to revise and resend my letter, and it was inferred that my petition would be considered timely. The phone record for this six minute call is attached as the pdf file PhoneCallRecords. The first concern I am writing to convey is that this phone call is not reflected in the case docket. During this same time period, I sent out a number of emails seeking amicus curiae support for my petition. David Ettinger, the president of the California Academy of Appellate Lawyers reviewed my petition and approved it for submission to the Academys amicus curiae committee. I also received responses from law school professors at Stanford, Hastings, USC, UCLA, University of San Diego, and two Bay Area Legal Aid attorneys indicating that my petition had merit and raised an important issue. Copies of these emails are attached as the pdf file AmicusRequestReplies. On Oct. 25 I received an email from Mr. Ettinger withdrawing consideration of the petition by the Academy because that day the Supreme Court docket reflected that the case had been closed based on denial of an application for relief from default. Assuming a mistake had been made, that afternoon I called the court and was informed that the chief justice had denied my request for relief from default. During this call, I recounted what I had previously been told by court staff and that it was my understanding that, based on my Oct. 20 letter and post office receipt, my petition had never been in default. Although the clerk I talked to seemed as baffled about the dismissal as I was, she said the decision was made by the chief justice and was final. This five minute phone call is reflected in the attached phone records. This call also was not memorialized in the court docket.

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I researched the procedure for reconsideration of the order, and finding nothing in the Rutter Group publication California Practice Guide-Civil Appeals and Writs (which I used in drafting my petition) I called the court two days later to ask if there was a court rule or other reference providing for reconsideration of the order. I was told the order was final and no reconsideration process was available. The attached phone records reflect four phone calls on Oct. 27: three outgoing calls from me, and one incoming call from the court. The court docket does not reflect this communication. My petition for review is attached to this email. The petition raised several issues that are unique to the Third District Court of Appeal, and to Sacramento County Superior Court. A component of the issues is an unusual and unusually harsh standard of review which the Third District currently applies to all appeals without a reporters transcript (RT), regardlessof whether the appeal was deliberately and voluntarily taken without a RT. The 3rd District gets a disproportionate number of appeals of this type because Sacramento County family court does not provide court reporters for all hearings and trials. I explain this situation in the Why Review Should Be Granted portion of the petition. I find myself in an awkward position because at the time I submitted the petition, I assumed that the chief justice would not participate in the case because she is the author or co-author of several of the more than 25 unpublished 3rd District opinions which reflect the standard of review policy I contend violates the due process, equal protection and access to the courts constitutional rights of mostly indigent and self-represented family court parties like myself. The chief justice is a co-author of two of the opinions (Alvarez and Nesbitt) I cite at footnote 2 on page six of the petition, and the primary author of InreMarriageofNewby (No. C062596), filed December 27, 2010 - one of her last opinions before taking the helm at the Supreme Court. In Newby, the chief justice used the standard of review which I contend is unconstitutional as it is applied under the circumstances in Newby, the 25+ other cases, and my own case. I have great respect for the judicial branch, and with all due respect to the chief justice and to the court, the chief justices failure to recuse, and summary dismissal of my petition for review nonetheless conveyed the appearance that she wanted to prevent consideration of the petition by the full court. In January 2012 I made a request for judicial administrative records to the court. I requested statistical and case data regarding the number of untimely petitions for review which the court receives. I didnt receive a response to the request, and sent a follow-up letter in February. Both letters are attached to this email as the file Jan&FebRequestLetters. On March 5, I sent an email to Justices Werdegar, Liu and Baxter asking for help with the request. On March 6, I received a response from Mr. Ohlrich acknowledging my letters from January and February were properly addressed, but that the letters may have been improperly routed. Mr. Olrichs email is attached as the file 2012-03-06-OhlrichEmail. I received the requested records on March 9, 2012. The records show that in 2011 the court granted relief from default for 43 civil appeal petitions for review filed late. Most were filed late by a week or more, and several were months late. The court denied relief from default in 16 civil appeal cases. These cases were late by days, weeks or months. As I have found no reference for the criteria the court uses in assessing a request for relief from default, I cannot make any firm conclusions from this data. But if my petition for review was somehow construed as being untimely, it stands alone as being dismissed for being less than one day late. I am writing to convey this information to the full court, and to express that I find the totality of these circumstances to be troublesome. Sincerely, Stephen James

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1Stephen James

From: Stephen James @gmail.com>Sent: Wednesday, March 14, 2012 2:56 PMTo:Subject: Judicial Administrative Records Request Follow-UpAttachments: 2011-10-19-LetterRePostage.pdf; PhoneCallRecords.pdf; AmicusRequestReplies.pdf;

PetForReview.pdf; Jan&FebRequestLetters.pdf; 2012-03-06-OhlrichEmail.pdf; 2011-10-19-LetterRePostage.pdf; PhoneCallRecords.pdf; AmicusRequestReplies.pdf; PetForReview.pdf; Jan&FebRequestLetters.pdf; 2012-03-06-OhlrichEmail.pdf

Dear Justice Kennard, On March 5 I wrote to the court to ask for help with a January request for judicial administrative records, and a February follow-up request. The next day I received a response from Frederick Ohlrich. On March 9, from Mr. Ohlrich I received the requested records. Based on what the records show, I am now writing to convey several concerns about irregularities in the courts handling of a petition for review I filed in October, 2010. I mailed the petition for review to the court at midnight on October 18, 2010, the last day of the 10-day window in which the petition could be filed. The petition was mailed at that hour because in the process of printing the required 14 petition copies, my computer printer broke down earlier that day. The postal receipt for the priority mail postage used to mail the petition reflects a date of Oct. 18, and a time of 11:58 p.m. Under Cal. Rules of Court rule 8.25(b)(3)(A), the petition therefore was timely. However, the actual postage sticker affixed to the envelope reflects a date of Oct. 19, 2010. To clarify any confusion over the conflicting dates, the next day I sent a letter to the court explaining why the postage sticker on the envelope reflected a date of Oct. 19. A copy of my letter to the court is attached to this email as the pdf file 2011-10-19-LetterRePostage. The letter included a copy of the post office receipt for the priority mail postage used to mail the petition (rule 825(b)(3)(A)). As a precaution, at the end of the letter, I requested relief from default under rule 8.500(e)(2) if for any reason the petition is deemed untimely. This letter was mailed Oct. 20. On Oct. 21 I received a form letter from the court regarding the timeliness of the petition. I called the court to explain the letter I had sent the day before, and also to ask if I should revise and resend my letter pursuant to the instructions in the courts form letter, which said a request for relief should include a sworn verification. On the phone, I was told that based on the postage date mix-up I didnt need to revise and resend my letter, and it was inferred that my petition would be considered timely. The phone record for this six minute call is attached as the pdf file PhoneCallRecords. The first concern I am writing to convey is that this phone call is not reflected in the case docket. During this same time period, I sent out a number of emails seeking amicus curiae support for my petition. David Ettinger, the president of the California Academy of Appellate Lawyers reviewed my petition and approved it for submission to the Academys amicus curiae committee. I also received responses from law school professors at Stanford, Hastings, USC, UCLA, University of San Diego, and two Bay Area Legal Aid attorneys indicating that my petition had merit and raised an important issue. Copies of these emails are attached as the pdf file AmicusRequestReplies. On Oct. 25 I received an email from Mr. Ettinger withdrawing consideration of the petition by the Academy because that day the Supreme Court docket reflected that the case had been closed based on denial of an application for relief from default. Assuming a mistake had been made, that afternoon I called the court and was informed that the chief justice had denied my request for relief from default. During this call, I recounted what I had previously been told by court staff and that it was my understanding that, based on my Oct. 20 letter and post office receipt, my petition had never been in default. Although the clerk I talked to seemed as baffled about the dismissal as I was, she said the decision was made by the chief justice and was final. This five minute phone call is reflected in the attached phone records. This call also was not memorialized in the court docket.

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I researched the procedure for reconsideration of the order, and finding nothing in the Rutter Group publication California Practice Guide-Civil Appeals and Writs (which I used in drafting my petition) I called the court two days later to ask if there was a court rule or other reference providing for reconsideration of the order. I was told the order was final and no reconsideration process was available. The attached phone records reflect four phone calls on Oct. 27: three outgoing calls from me, and one incoming call from the court. The court docket does not reflect this communication. My petition for review is attached to this email. The petition raised several issues that are unique to the Third District Court of Appeal, and to Sacramento County Superior Court. A component of the issues is an unusual and unusually harsh standard of review which the Third District currently applies to all appeals without a reporters transcript (RT), regardlessof whether the appeal was deliberately and voluntarily taken without a RT. The 3rd District gets a disproportionate number of appeals of this type because Sacramento County family court does not provide court reporters for all hearings and trials. I explain this situation in the Why Review Should Be Granted portion of the petition. I find myself in an awkward position because at the time I submitted the petition, I assumed that the chief justice would not participate in the case because she is the author or co-author of several of the more than 25 unpublished 3rd District opinions which reflect the standard of review policy I contend violates the due process, equal protection and access to the courts constitutional rights of mostly indigent and self-represented family court parties like myself. The chief justice is a co-author of two of the opinions (Alvarez and Nesbitt) I cite at footnote 2 on page six of the petition, and the primary author of InreMarriageofNewby (No. C062596), filed December 27, 2010 - one of her last opinions before taking the helm at the Supreme Court. In Newby, the chief justice used the standard of review which I contend is unconstitutional as it is applied under the circumstances in Newby, the 25+ other cases, and my own case. I have great respect for the judicial branch, and with all due respect to the chief justice and to the court, the chief justices failure to recuse, and summary dismissal of my petition for review nonetheless conveyed the appearance that she wanted to prevent consideration of the petition by the full court. In January 2012 I made a request for judicial administrative records to the court. I requested statistical and case data regarding the number of untimely petitions for review which the court receives. I didnt receive a response to the request, and sent a follow-up letter in February. Both letters are attached to this email as the file Jan&FebRequestLetters. On March 5, I sent an email to Justices Werdegar, Liu and Baxter asking for help with the request. On March 6, I received a response from Mr. Ohlrich acknowledging my letters from January and February were properly addressed, but that the letters may have been improperly routed. Mr. Olrichs email is attached as the file 2012-03-06-OhlrichEmail. I received the requested records on March 9, 2012. The records show that in 2011 the court granted relief from default for 43 civil appeal petitions for review filed late. Most were filed late by a week or more, and several were months late. The court denied relief from default in 16 civil appeal cases. These cases were late by days, weeks or months. As I have found no reference for the criteria the court uses in assessing a request for relief from default, I cannot make any firm conclusions from this data. But if my petition for review was somehow construed as being untimely, it stands alone as being dismissed for being less than one day late. I am writing to convey this information to the full court, and to express that I find the totality of these circumstances to be troublesome. Sincerely, Stephen James

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1Stephen James

From: Stephen James @gmail.com>Sent: Wednesday, March 14, 2012 2:51 PMTo:Subject: Follow-Up to Judicial Administrative Records RequestAttachments: 2011-10-19-LetterRePostage.pdf; PhoneCallRecords.pdf; AmicusRequestReplies.pdf;

PetForReview.pdf; Jan&FebRequestLetters.pdf; 2012-03-06-OhlrichEmail.pdf; 2011-10-19-LetterRePostage.pdf; PhoneCallRecords.pdf; AmicusRequestReplies.pdf; PetForReview.pdf; Jan&FebRequestLetters.pdf; 2012-03-06-OhlrichEmail.pdf

Dear Justice Werdegar, On March 5 I wrote to the court to ask for help with a January request for judicial administrative records, and a February follow-up request. The next day I received a response from Frederick Ohlrich. On March 9, from Mr. Ohlrich I received the requested records. Based on what the records show, I am now writing to convey several concerns about irregularities in the courts handling of a petition for review I filed in October, 2010. I mailed the petition for review to the court at midnight on October 18, 2010, the last day of the 10-day window in which the petition could be filed. The petition was mailed at that hour because in the process of printing the required 14 petition copies, my computer printer broke down earlier that day. The postal receipt for the priority mail postage used to mail the petition reflects a date of Oct. 18, and a time of 11:58 p.m. Under Cal. Rules of Court rule 8.25(b)(3)(A), the petition therefore was timely. However, the actual postage sticker affixed to the envelope reflects a date of Oct. 19, 2010. To clarify any confusion over the conflicting dates, the next day I sent a letter to the court explaining why the postage sticker on the envelope reflected a date of Oct. 19. A copy of my letter to the court is attached to this email as the pdf file 2011-10-19-LetterRePostage. The letter included a copy of the post office receipt for the priority mail postage used to mail the petition (rule 825(b)(3)(A)). As a precaution, at the end of the letter, I requested relief from default under rule 8.500(e)(2) if for any reason the petition is deemed untimely. This letter was mailed Oct. 20. On Oct. 21 I received a form letter from the court regarding the timeliness of the petition. I called the court to explain the letter I had sent the day before, and also to ask if I should revise and resend my letter pursuant to the instructions in the courts form letter, which said a request for relief should include a sworn verification. On the phone, I was told that based on the postage date mix-up I didnt need to revise and resend my letter, and it was inferred that my petition would be considered timely. The phone record for this six minute call is attached as the pdf file PhoneCallRecords. The first concern I am writing to convey is that this phone call is not reflected in the case docket. During this same time period, I sent out a number of emails seeking amicus curiae support for my petition. David Ettinger, the president of the California Academy of Appellate Lawyers reviewed my petition and approved it for submission to the Academys amicus curiae committee. I also received responses from law school professors at Stanford, Hastings, USC, UCLA, University of San Diego, and two Bay Area Legal Aid attorneys indicating that my petition had merit and raised an important issue. Copies of these emails are attached as the pdf file AmicusRequestReplies. On Oct. 25 I received an email from Mr. Ettinger withdrawing consideration of the petition by the Academy because that day the Supreme Court docket reflected that the case had been closed based on denial of an application for relief from default. Assuming a mistake had been made, that afternoon I called the court and was informed that the chief justice had denied my request for relief from default. During this call, I recounted what I had previously been told by court staff and that it was my understanding that, based on my Oct. 20 letter and post office receipt, my petition had never been in default. Although the clerk I talked to seemed as baffled about the dismissal as I was, she said the decision was made by the chief justice and was final. This five minute phone call is reflected in the attached phone records. This call also was not memorialized in the court docket.

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I researched the procedure for reconsideration of the order, and finding nothing in the Rutter Group publication California Practice Guide-Civil Appeals and Writs (which I used in drafting my petition) I called the court two days later to ask if there was a court rule or other reference providing for reconsideration of the order. I was told the order was final and no reconsideration process was available. The attached phone records reflect four phone calls on Oct. 27: three outgoing calls from me, and one incoming call from the court. The court docket does not reflect this communication. My petition for review is attached to this email. The petition raised several issues that are unique to the Third District Court of Appeal, and to Sacramento County Superior Court. A component of the issues is an unusual and unusually harsh standard of review which the Third District currently applies to all appeals without a reporters transcript (RT), regardlessof whether the appeal was deliberately and voluntarily taken without a RT. The 3rd District gets a disproportionate number of appeals of this type because Sacramento County family court does not provide court reporters for all hearings and trials. I explain this situation in the Why Review Should Be Granted portion of the petition. I find myself in an awkward position because at the time I submitted the petition, I assumed that the chief justice would not participate in the case because she is the author or co-author of several of the more than 25 unpublished 3rd District opinions which reflect the standard of review policy I contend violates the due process, equal protection and access to the courts constitutional rights of mostly indigent and self-represented family court parties like myself. The chief justice is a co-author of two of the opinions (Alvarez and Nesbitt) I cite at footnote 2 on page six of the petition, and the primary author of InreMarriageofNewby (No. C062596), filed December 27, 2010 - one of her last opinions before taking the helm at the Supreme Court. In Newby, the chief justice used the standard of review which I contend is unconstitutional as it is applied under the circumstances in Newby, the 25+ other cases, and my own case. I have great respect for the judicial branch, and with all due respect to the chief justice and to the court, the chief justices failure to recuse, and summary dismissal of my petition for review nonetheless conveyed the appearance that she wanted to prevent consideration of the petition by the full court. In January 2012 I made a request for judicial administrative records to the court. I requested statistical and case data regarding the number of untimely petitions for review which the court receives. I didnt receive a response to the request, and sent a follow-up letter in February. Both letters are attached to this email as the file Jan&FebRequestLetters. On March 5, I sent an email to Justices Werdegar, Liu and Baxter asking for help with the request. On March 6, I received a response from Mr. Ohlrich acknowledging my letters from January and February were properly addressed, but that the letters may have been improperly routed. Mr. Olrichs email is attached as the file 2012-03-06-OhlrichEmail. I received the requested records on March 9, 2012. The records show that in 2011 the court granted relief from default for 43 civil appeal petitions for review filed late. Most were filed late by a week or more, and several were months late. The court denied relief from default in 16 civil appeal cases. These cases were late by days, weeks or months. As I have found no reference for the criteria the court uses in assessing a request for relief from default, I cannot make any firm conclusions from this data. But if my petition for review was somehow construed as being untimely, it stands alone as being dismissed for being less than one day late. I am writing to convey this information to the full court, and to express that I find the totality of these circumstances to be troublesome. Sincerely, Stephen James

Calif

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1Stephen James

From: Stephen James @gmail.com>Sent: Wednesday, March 14, 2012 3:06 PMTo:Subject: Request for Judicial Administrative Records-follow upAttachments: 2011-10-19-LetterRePostage.pdf; PhoneCallRecords.pdf; AmicusRequestReplies.pdf;

PetForReview.pdf; Jan&FebRequestLetters.pdf; 2012-03-06-OhlrichEmail.pdf; 2011-10-19-LetterRePostage.pdf; PhoneCallRecords.pdf; AmicusRequestReplies.pdf; PetForReview.pdf; Jan&FebRequestLetters.pdf; 2012-03-06-OhlrichEmail.pdf

Dear Justice Baxter, On March 5 I wrote to the court to ask for help with a January request for judicial administrative records, and a February follow-up request. The next day I received a response from Frederick Ohlrich. On March 9, from Mr. Ohlrich I received the requested records. Based on what the records show, I am now writing to convey several concerns about irregularities in the courts handling of a petition for review I filed in October, 2010. I mailed the petition for review to the court at midnight on October 18, 2010, the last day of the 10-day window in which the petition could be filed. The petition was mailed at that hour because in the process of printing the required 14 petition copies, my computer printer broke down earlier that day. The postal receipt for the priority mail postage used to mail the petition reflects a date of Oct. 18, and a time of 11:58 p.m. Under Cal. Rules of Court rule 8.25(b)(3)(A), the petition therefore was timely. However, the actual postage sticker affixed to the envelope reflects a date of Oct. 19, 2010. To clarify any confusion over the conflicting dates, the next day I sent a letter to the court explaining why the postage sticker on the envelope reflected a date of Oct. 19. A copy of my letter to the court is attached to this email as the pdf file 2011-10-19-LetterRePostage. The letter included a copy of the post office receipt for the priority mail postage used to mail the petition (rule 825(b)(3)(A)). As a precaution, at the end of the letter, I requested relief from default under rule 8.500(e)(2) if for any reason the petition is deemed untimely. This letter was mailed Oct. 20. On Oct. 21 I received a form letter from the court regarding the timeliness of the petition. I called the court to explain the letter I had sent the day before, and also to ask if I should revise and resend my letter pursuant to the instructions in the courts form letter, which said a request for relief should include a sworn verification. On the phone, I was told that based on the postage date mix-up I didnt need to revise and resend my letter, and it was inferred that my petition would be considered timely. The phone record for this six minute call is attached as the pdf file PhoneCallRecords. The first concern I am writing to convey is that this phone call is not reflected i