Effective date: 10/25/07
The following process was developed following discussions among the Third District Court of Appeal, CCAP and CADC representatives. This process applies only to opinions that specifically designate an argument as “frivolous” – it does not apply if the opinion uses other words such as “meritless,” “waived,” “defaulted,” etc. (For historical background, read the Third District's opinion in People v. Craig (1991) 234 Cal.App.3d 1066 [Craig is the origination of the Third District’s frivolous-issue policy in appointed counsel cases].)
Frivolous Issue Designation in Third District Opinions
If the Third District Court of Appeal designates an issue as “frivolous” in the opinion, CCAP must treat the argument as an unbriefed issue on the final compensation claim recommendation forwarded to the AOC for payment. In addition, no compensation can be recommended for that portion of a petition for rehearing that only challenges the court’s characterization of the argument as frivolous.
A panel attorney who disagrees with the court’s designation of an issue as frivolous may send CCAP (as part of the final compensation claim) a letter request to authorize payment for the argument, addressed to the Court of Appeal. The letter should explain why the argument was not frivolous. CCAP will forward to the court a copy of the final claim, along with counsel’s request to authorize payment and CCAP’s final claim recommendation. If CCAP believes that the issue should not be treated as frivolous, CCAP will recommend that the court grant counsel’s request for payment. Please remember that all aspects of CCAP’s recommendation will be subject to court review for appropriateness.
If the court grants the payment request, CCAP will treat the argument as a briefed issue and make an appropriate recommendation that, along with the final claim, will be forwarded to the AOC for payment.
If the court denies the request to authorize payment on the issue found to be frivolous, the final recommendation will treat the argument as an unbriefed issue and reflect an appropriate reduction in the time recommended for it. The final claim, the final recommendation, and the payment order will then be sent to the AOC.
On the subject of frivolous issues, it is important to remember that the appointed attorney is the final arbiter of what issues are included in the brief, whether appointed on an assisted basis or an independent basis. The CCAP staff attorney may suggest arguments and approaches, but the appointed attorney retains control over which issues will be argued and how they will be presented. Independent thinking is strongly encouraged. On the other hand, CCAP requests that panel attorneys thoroughly consider any suggestions we may make during the appeal.