MEEHAN RASCH, University of California, Los Angeles - School of Law
Email: meehan.r@stanfordalumni.org

The availability of appellate review is integral to our contemporary justice system and serves important practical and symbolic functions. Appeal as of right, while not constitutionally guaranteed, is assured by statute for the vast majority of final decisions by trial courts, and with good reason. For one, the principle of open access to the courts is a key value of American law. An accessible public forum for the adversary process ensures that grievances are properly heard and fairly disposed of. Accordingly, justice is best served when parties are able to comprehensively litigate their rights at every level of the judicial system. Appellate review allows novel legal theories and untested questions of law to be advanced and considered, and affirms the continuing applicability-or not-of precedent. Additionally, the existence of successive levels of appellate review functions to reassure individual litigants and the general public that decisions of lower court judges are, at least theoretically, accountable to higher authority. The appeals process hence plays an important role in maintaining the stability and trustworthiness of the judicial system at large.

Nevertheless, the right to appeal a valid final judgment or appealable order does not presume the propriety of every appeal. "[A] defendant has no right to file a frivolous appeal," and the decision "whether to appeal from an order of the District Court is not a matter to be taken lightly by either a losing party or her counsel." As a consequence, the federal courts of appeal possess the power under Federal Rule of Appellate Procedure 38 (Rule 38) and other sources of authority to sanction appellants who pursue completely meritless or vexatious petitions for review. Historically, though, courts have been reluctant to rigorously announce findings of frivolity or to impose full Rule 38 sanctions, for fear of chilling zealous advocacy or impeding novel claims. And even courts with a greater propensity to sanction under Rule 38 traditionally often have refrained from imposing sanctions on pro se appellants. However, mounting caseloads have increased the pressures on courts of appeal in recent years, leading to increased willingness by courts to identify and penalize frivolous appeals as well as provoking calls by some scholars and practitioners for substantially stricter imposition of Rule 38 sanctions.

In this changing environment, inconsistencies among circuits in determining when an appeal is frivolous and when to impose sanctions carry significant impact for appellants, particularly vulnerable pro se appellants proceeding without the benefit of counsel. While interests of judicial economy are certainly substantial, access to appellate review must be safeguarded for all tenable claims, even those of marginal merit. The assurance of thoughtful consideration by a court of last resort must not, instead, become merely a myth of last resort.

This Article argues for adoption of consistent standards across circuits for determining the frivolity of appeals, particularly those by pro se appellants, as well as for consideration of different criteria for sanctioning frivolous appeals by pro se appellants than for attorneys. Part I provides an overview of the function and purpose of Rule 38, and clarifies the relationships among Rule 38, other sources of authority for finding frivolity, and analogous rules such as Federal Rule of Civil Procedure 11, which operates to identify sanctionable frivolous suits at the trial court level. Part II discusses the interest of courts in stemming an "avalanche of appeals," as well as the competing interest in not applying Rule 38 so strictly as to chill legitimate advocacy. Part III explores the implementation of Rule 38 by various circuits and identifies an increasing trend in the federal courts of appeal toward stricter implementation and stronger sanctions for frivolity, including against certain categories of pro se appellants. Part III also notes inconsistencies in how frivolous appeals are determined in general and with respect to pro se appellants, and examines how an appellant's pro se status affects the factors courts consider in deciding whether to exercise their discretion to impose sanctions for filing a frivolous appeal.

Part IV argues that indeterminacy and varying standards among circuits hinders both the efficiency of courts and the access of pro se litigants to appellate review. In conclusion, this Comment recommends adoption of a standardized process for Rule 38 review based on combined best practices of the circuits. Initial determination of frivolity should be objective, limited to consideration of the merits of the appeal as filed. Then, the decision whether to sanction should take into consideration the totality of the circumstances, including subjective factors such as bad faith on the part of the appellant and whether she is proceeding pro se. In this analysis, there should remain a presumption against imposing sanctions in the case of a pro se appellant, as well as an explicit advance warning requirement before sanctioning pro se appellants. Courts should retain their historical caution and reserve Rule 38 only for cases of objective and unquestionable frivolity, remaining mindful of other avenues for sanctioning for delay or vexatious litigation. Additionally, courts of appeal should consider the alternative of issuing an affirmance without opinion under local court rules providing for summary disposition.

EDWARD J. IMWINKELREID, University of California, Davis - School of Law
Email: EJIMWINKELRIED@ucdavis.edu

Beginning in the late 1980s, reformers began developing new strategies for dealing with pretrial discovery misconduct. There was a consensus that such misconduct was widespread and often prevented litigants from successfully prosecuting meritorious claims.

Legislatures and courts adopted a much more aggressive attitude to combat such misconduct. For example, sanctions were imposed more frequently; and Federal Rule of Civil Procedure 37 was amended to permit the aggrieved party to introduce evidence of the opponent's pretrial discovery misconduct at trial as proof of the opponent's consciousness of the weakness of their position in the litigation.

The downside of this development, though, was that pretrial hearings over such misconduct became commonplace and expensive. When the parties became mired down in such hearings, they were sometimes distracted from their primary task of litigating the merits of the case.

There is now mounting pressure to deal more vigorously with evidentiary misconduct at trial. While such misconduct may not be as widespread as pretrial discovery misconduct, in at least one respect trial misconduct is arguably a more serious concern. When the misconduct occurs before trial, the judge has time - and numerous options - to prevent the misconduct from tainting the outcome of the trial. In contrast, if the misconduct occurs midtrial, there is less time, there are fewer viable options.

When a litigant engages in the misconduct of knowingly exposing the jury to inadmissible evidence, many of the existing remedial options available to the trial judge are unsatisfactory. The judge may grant a curative instruction directing the jury to disregard the inadmissible evidence, but empirical research raises grave questions about the effectiveness of such instructions. To be sure, in an extreme case the judge can declare a mistrial. However, the aggrieved litigant may have limited financial resources; and if he or she cannot afford a second trial, he or she may be compelled to settle on unfavorable terms.

This article proposes a new remedy for this evidentiary misconduct; analogizing to Rule 37, the article urges the courts to allow the innocent party to treat the misconduct as evidence of the opposition's consciousness of the weakness of their position in the litigation. On the one hand, the adoption of this proposal would provide a powerful disincentive to this species of misconduct. On the other hand, like pretrial discovery misconduct hearings, midtrial hearings devoted to this issue could potentially be both expensive and distracting. For that reason, the remedy should be granted only in extraordinary cases. The aggrieved party should have the burden of proving to the judge that the misconduct was intentional, and the measure of the burden ought to be clear and convincing evidence. Moreover, the judge should permit the aggrieved party to introduce the evidence only when the judge finds that any other available remedy would be ineffective.

MEEHAN RASCH, University of California, Los Angeles - School of Law
Email: meehan.r@stanfordalumni.org

Civil and criminal appellate review of lower court proceedings, for the most part, are seen as two distinct processes with differing standards for reversal of mistakes by the trial court. Indeed, for forty years, California appellate courts generally have applied one discrete test for harmless error in civil proceedings, while reserving a stricter standard exclusively for federal constitutional error in criminal cases, a distinction predicated on the fundamental rights at stake in state criminal trials. In appeals from convictions in California state criminal cases, errors rising to a federal constitutional dimension are governed by the standard of Chapman v. California, which requires that these errors be proven by the state to be harmless beyond all reasonable doubt. The more lenient standard (for the trial court) of People v. Watson, which holds errors of state law and procedure harmless unless there is a reasonable probability that such error prejudiced the outcome, is generally applicable to civil cases. Where a fundamental right such as personal liberty may be erroneously infringed upon, the logic goes, greater protection of such a right is required, in contrast to the errors merely of state statutory or procedural nature that by and large arise in state civil trials.

However, on several important occasions civil cases enter a gray area involving the suspension or infringement of fundamental constitutional rights. As a result, for the same forty years, appellate courts in the state have varied considerably regarding which of the two standards to apply in assessing the harmlessness of federal constitutional errors arising in civil proceedings. This twilight zone means that little definitive guidance exists for courts evaluating the effect of error in civil cases that nonetheless implicate fundamental rights. Such circumstances include, for example, involuntary civil commitments for sexually violent predators and mentally disordered offenders, conservatorship and competency hearings, and child protection and parental severance ("dependency") proceedings. Given the lack of guidance from higher courts, California appellate courts have varied widely regarding which harmless error standard should be applied to federal constitutional errors in such civil cases.

On appellate review of federal constitutional error arising in civil cases, the harmless error test a court applies may be dispositive of the outcome of the case. Moreover, the degree of protection that a litigant's constitutional rights receive may depend on the choice of harmless error test. Without a clear harmless error standard established for federal constitutional error in these instances, outcomes are rendered unpredictable and the level of protection afforded the affected parties' federal constitutional rights is problematically inconsistent.

Dependency proceedings present a complex case for harmless error analysis due to the unique rules governing dependency and the separate, often-conflicting fundamental rights of both parents and minor children. So, it is little wonder that this area has provoked quite divergent applications by different California appellate districts, with a consequent lack of guidance for all courts across the state. The California Supreme Court has never reached the open question of which harmless error standard should apply in dependency appeals, nor does United States Supreme Court precedent illuminate the matter. As a result, California appellate courts remain split on the issue. Outside of the judicial system, too, where the issue has not been addressed at all, no clear consensus exists among scholars or practitioners; some commentators even go as far as to advocate reversal per se for certain federal constitutional errors in dependency proceedings, precluding harmless error analysis altogether; others propose the application of an intermediate "clear and convincing evidence" standard somewhere between Chapman and Watson.

This Article argues for the application of the Chapman v. California harmless error standard on appeal when rights of federal constitutional magnitude arise in dependency proceedings. Part II provides an overview of the evolution of harmless error analysis in California appeals, and describes the People v. Watson test used for review of virtually all error in civil proceedings and the Chapman v. California "constitutional" test applied to constitutional error in criminal appeals. Part III explores the variety of applications of the Chapman and Watson standards to non-dependency civil proceedings, such as involuntary civil commitments, and identifies a perceptible trend toward application of Chapman in many instances. Part IV addresses the fundamental rights implicated by dependency proceedings and summarizes the inconsistency in California cases as to which harmless error standard should be applied to dependency reviews. Part V concludes that the Chapman standard best protects fundamental constitutional rights for both parents and children in the dependency context.