Appellate judge takes OC DA to task on choice of words in brief

An appellate judge chastised Orange County District Attorney Todd Spitzer for claiming in a brief that a trial court fabricated information and violated state and federal precedent. In a move legal experts said was unusual, Justice Eileen C. Moore devoted part of the court's opinion to take Spitzer and his deputies to task for assertions she said were subject to misinterpretation and unacceptable

"We advise the district attorney in the future to be more cautious and consider his language more carefully when challenging a ruling of a trial court in an appellate brief, or he may be subject to sanctions," Moore wrote Tuesday for a unanimous 4th District Court of Appeal panel. "Words are to lawyers, as scalpels are to surgeons. They are tools to be used with precision."

Justices Thomas M. Goethals and Martha K. Gooding concurred. The People v. Ramirez, G063224 (Cal. App. 4th Dist. Aug. 20, 2024).

The underlying case involved a defendant and respondent who had successfully moved to have police testimony that he had an illegal firearm in his car during a traffic stop suppressed on Fourth Amendment grounds.

Moore's ire was drawn by passages in Spitzer's appellate brief that she said implied that Orange County Superior Court Judge Elizabeth G. Macias acted in bad faith in granting the motion.

According to Tuesday's decision, Spitzer's brief said the "trial court here has fabricated a new requirement to vehicle detentions, and has done so in defiance of United States and California Supreme Court precedent."

Additionally, the decision said, a reply brief stated that this "fabricated legal theory was untenable as the justification for granting the suppression motion, and likewise cannot justify the denial of the instant appeal."

Moore specifically highlighted the use of the terms "fabricated" and "in defiance."

A deputy for Spitzer later told the court that his office didn't intend to make accusations of bad faith during oral argument, the opinion said.
"We accept the representation of the district attorney (through his deputy) that he did not intend to suggest that the trial court had acted in bad faith when making its ruling. Indeed, the prosecutor who appeared at the hearing on the motion (and authored the appellate briefs) was gracious and respectful to the trial court judge," Moore wrote. "However, the written assertions in the district attorney's briefs that the trial court 'fabricated' a legal theory are nonetheless subject to misinterpretation and are unacceptable."

The appellate panel agreed with Spitzer's assertion that there had been no Fourth Amendment violations and remanded the case back to the trial court with instructions to deny the motion to suppress.

"Our prosecutor made the correct legal argument and the district court agreed with us," Kimberly Edds, Public Information Officer for Spitzer's office, wrote in an email.

John J. Steele, a legal ethics attorney in San Mateo and lecturer at UC Berkeley School of Law, said the language in Spitzer's brief "came close to the line, but did not cross it."

"I would have advised the appellate court to gently chastise the lawyer at oral argument, but not put it in writing, because I don't think 'fabricate' was that terrible of a phrase to use," Steele said in a phone call on Wednesday.

Still, Steele said, the appellate panel's chastisement was "not inappropriate."

"In the final analysis, my view is that there are slightly safer phrases, like, 'the trial court missed the controlling standards,' 'the trial court failed to apply the controlling standards,'" he said.

Former U.S. District Court Judge Jeremy Fogel, now executive director of the Berkeley Judicial Institute, said the language was "problematic."
"Attorneys often use argumentative language in appellate briefs," Fogel wrote in an email Wednesday. "But the panel in this case evidently felt that the language in question here crossed a line and needed to be called out.

"Even if the brief writer didn't intend to suggest that the trial judge acted in bad faith, the use of 'fabricated' was subject to that interpretation," he added.

Catherine L. Fisk, a faculty director of the Berkeley Center for Law and Work and the Berkeley Center for Law & Technology, said the language was "unbecoming of any lawyer, especially one who represents 'The People of California,' as the District Attorney does."

"The Court of Appeal reminded the lawyers to be careful in their use of terms, which is not unusual and not unwarranted," Fisk said in an email on Wednesday. "Judges often take lawyers to task when they believe that the lawyers' words or conduct are insulting, inaccurate, or inappropriate. While it's more common to see it done verbally rather than in a written opinion, it's not unprecedented for a judge to do so."