Tuesday, March 21, 2017

9th Cir. Split: What's the Math Say?

Image result for let's splitThat's the title of Vanderbilt Professor Brian Fitzpatrick's article in today's DJ. He argues that "Smaller circuits might very well make fewer outlier decisions" in "both directions" (i.e., from the left or right). He then uses math to prove this, looking at "the probability of randomly selecting a three-judge panel with a majority of outlier judges" --  and the en banc process isn't an answer, because it too can end up with a majority-outlier panel. And he argues that "For the last 20 years, the 9th Circuit has had the highest reversal rate of any regional circuit." 

In other news... "President Donald Trump announced Tuesday that he nominated his first circuit judge, tapping Judge Amul Thapar, of the U.S. District Court for the Eastern District of Kentucky, to sit on the U.S. Court of Appeals for the Sixth Circuit." See Thapar Is First to Be Tapped by Trump for Circuit Judgeship

Monday, March 20, 2017

Appellate Tidbits

  • Today's Moskovitz on Appeals column is Writs: Part II, explaining that to pique an appellate court's interest in your writ petition, you should show: immediacy ("the issue must be resolved now"); a need to clarify the law; and a serious injustice by the trial court.
  • There are several hundred Certified Appellate Law Specialists in California now. The vast majority of these lawyers are in California, of course. But a few (9) list out-of-state addresses. There are our neighbors: Oregon (has two) and Nevada (which created its own intermediate appellate court in 2014). But then there're also Illinois, Texas (also has two), New Mexico (probably the first state to implement appellate specialization), Ohio, and Vermont! It's surprising not to see Hawaii on this list!
  • An interesting fn.1 here re use of unpublished decisions.
The DJ just reported as a "breaking news" alert: State Bar Prevails in Contentious Legal Battle, regarding the case involving former Executive Director Joseph Dunn.
And this afternoon The Recorder offers Arbitrator Rejects Remainder of Ousted Bar Leader's Claims.

Saturday, March 18, 2017

Book Review: Allegiance



As an appellate practitioner, you recognize the name Eugene Gressman, right? As in "Stern & Gressman" -- the colloquial way of referring to the SCOTUS bible/practice guide (actually titled Supreme Court Practice). Well, did you know that Gressman was actually murdered when he was a SCOTUS law clerk? At least, he was in Kermit Roosevelt's novel Allegiance.
Roosevelt's novel is so well researched and presented, it's hard to know where the truth ends and the "legal thriller" begins. (Anyone else out there similarly confused about where to draw that line in Michael Chabon's latest, Moonglow?!)
As Roosevelt explains in his afterword, the real Gene Gressman "was considered very influential. He was not murdered but went on to a career in appellate litigation and law teaching. And he did, as the clerks joke in the novel, write an outstanding book on Supreme Court practice."
So only in the alternate reality of the novel is Gressman killed as part of an evil conspiracy. Entering an alternate reality is what Japanese Americans must have felt when their own country rounded them up in prison camps. That internment led to several fascinating Supreme Court cases, which are, of course, a big part of the novel. 
Should appellate nerds read Allegiance? Definitely. Despite dealing with a very serious subject in a very serious way, it's still a lot of fun. It's also especially timely given the anniversary of the Japanese internment. (And don't confuse it with the George Takei Broadway musical, on the same subject, also titled Allegiance.)

Friday, March 17, 2017

Some case notes

1953 Bowman Yogi Berra.jpgThe Yogi Berra-Opening Line-Judicial Efficiency award goes to Justice Ikola for a pair of decisions here and here, that begin like this: "This appeal is déjà vu all over again. It is one of several cases presenting similar fact patterns, and in some cases, they are functionally identical. This is one of
those cases."


And to "Finnish," in the appellate sanctions department, note this case here, involving an admonishment of defendants and the imposition of monetary appellate sanctions on plaintiffs "for unreasonable violations of the California Rules of Court."
We further observe that Defendants’ brief was itself woefully inadequate. The procedural history in the brief is not supported by citations to the record, and record citations in the brief’s statement of facts cite to exhibit numbers rather than page numbers in the appendix. More frustrating, however, is that the substantive arguments in the brief do not meet Plaintiffs’ arguments on appeal. Defendants seem to have simply reworked arguments made in the prior appeal without acknowledging the different procedural posture of the instant appeal. We recognize, however, that Defendants have had to deal with the burden of Plaintiffs’ voluminous and disorganized filings over an extended period of time. While we could sanction Defendants and their counsel for these rule violations, we will instead admonish them, as we did Plaintiffs previously, that they may well face similar sanctions if they commit violations in a future appeal.
[Plaintiff Party 1] and counsel for [Plaintiff Party 2], [named], are each sanctioned in the amount of $950, payable to the clerk of this court within 45 days of the date of this order.

Today's MetNews has Ninth Circuit Judge Slams ‘Personal Attacks’ on Jurists
Bybee Says Travel Ban Was Lawful, but in Apparent Reference to Trump, Says Courts Should Not Be Politicized -- "Judge Jay Bybee did not mention the president by name. But in an opinion filed late Wednesday–which was joined by Judges Alex Kozinski, Consuelo Callahan, Sandra Ikuta, and Carlos Bea—he said such “personal attacks” were “out of all bounds of civic and persuasive discourse.” See also, in the ABA Journal, In apparent reference to Trump, 5 dissenting 9th Circuit judges criticize attacks on judiciary

Want more great tidbits? The March edition of Justice Moore's Litigation Update for the State Bar's Litigation Section is now available here.

And see Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute

Eastman says Yes, Split!

John Eastman's say, Split: Yes, goes the other way: "there are simply too many cases and too many judges in the 9th Circuit to effectively administer justice in an efficient and cohesive manner," "there is the loss of collegiality on the court," there is "lack of predictability in regard to the law of the circuit," "there is no conceivable way that any judge of that court can read, or even meaningfully scan and digest, anywhere near that number of opinions so as to be abreast of circuit law." In any circuit in which the judges are physically incapable of keeping up with the decisions of their colleagues, the law of the circuit becomes fragmented and contradictory, resulting in the loss of predictability," "and the overly large size of the 9th Circuit is producing a demonstrably higher summary reversal rate than exists in her sister circuits,"
"In a circuit with 29 active judgeships, for example, there are 3,654 possible three-judge panel combinations. Add in the 9th Circuit's 19 senior judges and there are a whopping 17,296 possible three-judge combinations!"
Dr. John Eastman

Kozinski says "No"!

Alex Kozinski cropped.jpgToday's DJ also features Judge Kozinski's anti-split article: "I am against [split proposals] because a circuit as large as ours is, in fact, better situated to bring justice closer to the people than a smaller one."
He outlines the "many advantages to having a large circuit with greater geographic scope" and how the Circuit has been a technology leader: The 9th Was among the first to embrace e-filing, and is one of only two appellate courts using the NextGen e-filing system. (Actually, the 2d Cir. and the 8th Cir. are also on NextGen too.)
The most obvious way in which we make our proceedings accessible is to offer live video streaming of all our oral arguments. We began in 2000 with audio recordings posted on our website, in 2010 we added video recordings, and in 2013 we began live streaming videos of our en banc hearings. Finally, in 2014 we began live streaming audio, and in 2015, we completed our project and began live streaming high-definition videos of every hearing from every location. We have also successfully implemented a program in three of our district courts (Western Washington, Northern California and Guam) that allows proceedings in their courtrooms to be recorded for later broadcast. And we stand ready to expand that program to other districts whenever we are permitted to do so by the Judicial Conference of the United States.

Law360 has 9th Circ. Judges Say Split Would Be Step In 'Wrong Direction', noting the testimoney from CJ Thomas, and Judges Kozinski and Bea:
“Splitting the Ninth Circuit is really going in the wrong direction,” Judge Kozinski told the panel chaired by Rep. Darrell Issa, R-Calif. “What this Congress ought to be looking at is bringing together smaller circuits to help them gain efficiency and collegiality the Ninth Circuit now enjoys.”

Lawmakers also heard from two law professors, John Eastman of Chapman University’s Dale E. Fowler School of Law and Brian Fitzpatrick (a former O'Scannlain clerk) of Vanderbilt Law School, who both support an effort to divide the Ninth Circuit.

The Recorder has House Panel Restarts Debate on Splitting Ninth Circuit: "Familiar battle lines and talking points resurfaced Thursday as a congressional hearing delved into the possibility of splitting the U.S. Court of Appeals for the Ninth Circuit, the nation's largest court in terms of case­load, territory, and population governed."

Chief says "No"!

SidneyRThomas2015.JPGIn Split: No, in today's DJ, Chief Judge Sid Thomas opposes division of the Ninth Circuit, which he says would have a "devastating effect on the administration of justice in the western United States," but increasing delay, reducing access to justice, and wasting taxpayer dollars. "Critical programs and innovations would be lost, replaced by unnecessary bureaucratic duplication of administration." And all that's just in the first paragraph!
For those who like figures: "We have 14 district and bankruptcy courts. The 9th Circuit as a whole has 164 district judges, 131 magistrate judges, 79 bankruptcy judges, and 119 pre-trial/probation officers."
the 9th Circuit is not the largest producer of opinions. The statistics show that both the 7th and 8th Circuits consistently produce more published opinions than the 9th Circuit. If division of a circuit is justified on this basis, other circuits will have to be divided.
Reversal rates have nothing to do with circuit administrative performance. The Supreme Court may review anywhere between 13 and 25 cases a year out of the 9th Circuit's 11,000 case filings. The question of how a court would decide the merits of a handful of cases is not reflective of court administration. It is not a proper measure, under any circumstances, of whether a circuit should be structurally divided.

Thursday, March 16, 2017

Restructuring the Ninth Circuit

Care about the 9th Circuit? Well, click Bringing Justice Closer to the People: Examining Ideas for Restructuring the 9th Circuit to follow today's hearing see what's happening.

Today's DJ cover story is Hearings on potential 9th Circuit split revived, noting "Republican-nominated Judges Carlos T. Bea and Alex Kozinski are also scheduled to testify, as are Professors John Eastman of Chapman University and Brian Fitzpatrick of Vanderbilt University Law School."
Image result for earthquake split
the push to carve out a 12th Circuit will be renewed Thursday, as 26 members of the House Judiciary Subcommittee on Intellectual Property and the Internet, led by chairman Darrell Issa, R-Vista, will hear testimony from conservative judges and scholars on whether the nation's largest circuit court has finally become too unwieldy to effectively serve the public, as its opponents have claimed since 1941.
With Republicans in control of the presidency and Congress, and the Senate's willingness to invoke the 'nuclear option' of simple majority votes, a bill to fracture the 9th Circuit has never been more likely to succeed.


Wednesday, March 15, 2017

Retired justice remembered for fair, straightforward demeanor

That's the headline for the DJ's obituary for Justice Daniel Curry.
In the eight years Curry spent at the appellate court, he authored more than 800 opinions, each containing a unique perspective stemming from Curry's time in the private sector.
Fellow Division 4 Justice James G. Hastings, who is retired, said when Curry joined in 1998, the court was playing catch-up after Justice Elizabeth A. Baron had retired. Curry's head-down approach could not have come at a better time.
"He came in and rolled up his sleeves and worked his tail off with the rest of us and by 2001 we got it down," Hastings said. "He never complained. He did his job."
Also in today's DJ, Justice Hoffstadt's latest: The Unbreakable Structure of Structural Errors (print version title The nucleus of structural errors), about SCOTUS's Weaver v. Massachusetts case this term. (Despite the article's nuclear physics theme, it is far from Bohring.)



Tuesday, March 14, 2017

Appellate MCLE events

Tonight is LACBA's Appellate Courts Section's Phil Goar Night of the Roundtables.

Next Monday Dean Chemerinsky presents his Supreme Court Review lunch program at the L.A. Hotel to Black Women Lawyers Association of Los Angeles.

On March 30 the Public Interest Law Foundation is holding its Gala Dinner and Silent Auction at the DoubteTree in Orange, and PJ Kathleen O'Leary will be honored with the M. Katherine Baird Darmer Commitment to Public Service Award.

Next month, on April 17, the San Diego County Bar Appellate Practice Section will again present (live and via webcast) The State of the Appellate Courts: A Joint Address, features Presiding Justice McConnell and Judge McKeown.


And here is some appellate catnip: A decision dismissing an appeal from an order approving a good faith settlement. Appellant should've taken a writ. But isn't there a split of authority on that question? Well, yes--but that doesn't apply to this case. The split exists only if there is a final, appealable judgment. As the fn. 3 explains, "Because we conclude that there is no final, appealble judgment, it is unnecessary for us to address whether an aggrieved party may challenged an order granting a section 877.6 motion on appeal from a final judgment. We express no view on the issue." The moral? If there's a writ to be had, better take it!

Federal Court Stats are out!

AO Releases Annual Report and Court Statistics


The year 2016 was a time of innovation and progress at the Administrative Office of the U.S. Courts, the agency reported today in two releases detailing its activities and programs over the 12-month period.

The second report, the 2016 Judicial Business of the United States Courts, provides statistical tables about federal cases filed by circuit, district, and offense or nature of suit, among many other topics. A multi-year comparison of judicial caseload indicators is included.

Caseload Highlights

U.S. Courts of Appeals

  • In the regional courts of appeals, filings grew 15 percent to 60,357.
  • Appeals involving pro se litigants, which constituted 52 percent of filings, rose 18 percent.
  • Criminal appeals remained stable, increasing 1 percent.
  • Civil appeals decreased 2 percent.
  • Appeals of administrative agency decisions declined 9 percent. 
Tables here

The Tables you care about!
Table B-4 U.S. Courts of Appeals -- Median Time Intervals
In the 9th Circuit, the median time from briefing to oral argument/submission = 14.7 months (by far the longest -- the next slowest is the 8th Circuit at 4.9 months)
From 9th Cir. oral argument to opinion = 1.l months, which is the second fastest turnaround.

Table B-5 U.S. Court of Appeals -- Decisions
In the 9th Circuit, the reversal rate in private civil cases = 16.3%


Judicial Conference Asks Congress to Create New Judgeships

The Judicial Conference of the United States today agreed to recommend to Congress the creation of 57 new Article III judgeships in the courts of appeals and district courts. If an omnibus judgeship bill is enacted into law, it would be first new comprehensive judgeship legislation to take effect in more than 26 years.
Read more.
(The Conference is recommending five more seats for the 9th Circuit.)

Monday, March 13, 2017

KFF: April 10 -- They Call Us Monsters

Movie night at the Ninth again!

Image result for they call us monstersThey Call Us Monsters follows three California juveniles who have been charged with violent crimes, await trial as adults and face the prospect of life in prison.  Filmed largely at a high-security juvenile facility in Los Angeles, where the teens are also enrolled in a screenwriting class, the documentary is a candid meditation on responsibility and rehabilitation here in our local community. 

We’ll be joined that evening by two very special guests.  Director Ben Lear will join us to discuss the evolution of this project and his close contact with the subjects of the film.  Executive Producer Scott Budnick (of The Hangover, War Dogs and many more) will discuss both his own work on the film and his broader efforts in criminal justice reform, including founding the Anti-Recidivism Coalition.  

Prior to KFF, we'll offer a tour of our historic Richard H. Chambers Courthouse.  If you'd like to participate in the tour, please meet in the first floor lobby just inside the main entrance at 5:45. The tour will start promptly at 6:00 so you can finish in plenty of time to get food, drink and a good seat.

If you're interested in joining us, please RSVP by clicking this link: https://goo.gl/QqnNLi

Also: In today's WSJ see 'Vinny' Still A Legal Ace to Lawyers -- After 25 Years, Movie Crops Up in Courts, Classrooms, which quotes Justices Scalia, Judge Janice Rogers Brown, and...
U.S. Circuit Judge Alex Kozinski says he views the film as a reassuring reminder of the presumption of innocence and "that a good lawyer can make a difference."
Judge Kozinski, who sits on the Ninth U.S. Circuit Court of Appeals in San Francisco, has organized two screenings of the film for his colleagues. He recalls that at a gathering of chief circuit judges in Washington, D.C., one judge handed everyone bags of raw grits as a "Vinny" homage.