Another 4/2 dissent

See this published opinion here today, which includes a dissent from Justice Menetrez, that begins:

The majority opinion works two significant changes in California law, one procedural and one substantive. First, the opinion reverses summary judgment on the basis of an argument that was not raised in the trial court. The opinion reasons that the argument was not forfeited because an appellant can always challenge summary judgment on the ground that the moving party did not carry its initial burden—the appellant need not have presented that argument to the trial court in order to preserve it for appeal. That is a new rule of California appellate procedure.

In today's Recorder, Kelly Woodruff's On Appeals column is On Appeals: Appellate Courts Won’t Save You When You Rely on Inadmissible Evidence

CJ Roberts on Covid-19

NLJ reports: Chief Justice Roberts Laments Hiatus of Handshake That Unites Justices

• In his first public statements about the COVID-19 pandemic, Chief Justice John Roberts Jr. said in a video posted Saturday that the crisis is “the world’s way of saying to mankind, ‘you’re not in charge.’” Roberts also praised “the boundless courage of the heroic healthcare workers” who have worked to save infected patients.

• Roberts made the remarks in a pre-taped video commencement speech recorded at a courtyard of the Supreme Court building. He was addressing students at Westminster School, a college preparatory school at Simsbury, Connecticut, where his son Jack was a member of the graduating class.

7th Circuit oral argument status

Here's what they're doing in Chicago:

Updated Notice to counsel and the public

Happy Memorial Day Weekend.
Have a Chicago-dog!

All cases scheduled for oral argument through August 31, 2020, will be argued by counsel either telephonically or by Zoom Video Communications. The Clerk's Office will contact counsel with remote argument instructions for their specific case. The courtroom will be closed to the public. The Court, on a temporary basis, will live stream the audio from oral arguments to YouTube. Arguments will also be recorded and posted on the court's website. If all parties agree among themselves to waive oral argument, they may jointly file a motion with the court seeking permission to do so.

2d Dist. Notice of Destruction

Want to feel normal again?
Here's a court notice that's NOT about the virus!

NOTICE OF DESTRUCTION OF COURT RECORDS

The California Court of Appeal, Second Appellate District hereby announces its intention to destroy the following civil records pursuant to California Rules of Court, rule 10.1028(d)(1). Records to be destroyed: 

All civil and juvenile cases with a disposition date prior to June 1, 2010.

 In the event anyone knows of any reason why a particular case, among the above numbered cases, should be retained, notify Daniel P. Potter, Clerk of the Court in writing setting forth in detail the reason(s) for retention. All requests must be received by June 18, 2020. 

   Clerk of the Court, Court of Appeal

   Second Appellate District

   300 South Spring Street

   Second Floor, North Tower

   Los Angeles, CA 90013

Ok, back to the virus: see in the Wall St. Journal, She Has Argued 40 Cases in Front of the Supreme Court. The Latest Was From Her Dining Room.

"The other side of the coin"

Today's DJ has SF Judge Curtis Karnow in Dangerous Fictions that makes a nice companion piece to Justice Hoffstadt's piece.

Legal fictions are problematic because, as Justice Hoffstadt implies, we're in the truth-finding business. These fictions are dangerous for judges, because judges believe the little stories they tell themselves, and the result is great mischief. And the public, which we serve, has no idea what we're talking about.

when judges believe their own magic and use extrapolated, perhaps metaphorical meanings as if they were real, the result can be peculiar. It may not be at all in accord with what the people, for whom all the laws are written and for whom we work, think is true.  

"Reality Check"

That's the title of today's DJ column by Justice Hoffstadt, which provides a great civics lesson as well as useful citations to various doctrines, and trenchant observations.

The U.S. Supreme Court has long observed that, of "the three great branches" of government -- legislative, executive and judicial -- the judicial is "the weakest."



doctrines and practices work together to ensure the courts' decisions are also grounded in a consistent, legal reality.

In other words, to the extent one believes that government decision-making should be grounded in reason and reality, the judiciary's greatest and most inherent weakness may also end up being one of its greatest strengths.

1-1-1 opinion

An avid and helpful reader draws attention to this remarkable opinion today here from 4/2.
This is a 1-1-1 decision. So is there a majority opinion? A plurality opinion? Appellate nerds should read Justice Menetrez's "concurring opinion." (And see more commentary here and here.)

Appellate sanctions imposed

Today's sanctions horror story is here, courtesy of 4/1:

• we are convinced this appeal is totally and indisputably without merit and, therefore, sanctions are warranted. [Appellant]'s primary argument on appeal was that the trial court erred when it determined the complaint was frivolous. He concedes the complaint contains "seemingly unusual" allegations, but asserts they are not outside "the realm of possibility" and do not describe "some impossible sci-fi scenario." We cannot agree. 
•  references to matters outside the appellate record violate at least two Rules: (1) Rule 8.204(a)(1)(C), which provides that each brief must "[s]upport any reference to a matter in the record," and (2) Rule 8.204(a)(2)(C), which provides that the opening brief must "[p]rovide a summary of the significant facts limited to matters in the record."
• we conclude sanctions are warranted in an amount necessary to compensate taxpayers for the cost of processing, reviewing, and deciding this frivolous appeal. Such sanctions typically range from $6,000 to $12,500 [cite], but have been imposed in amounts at least as high as $25,000.
• Given the outlandish arguments raised in this appeal and the extensive violations of the Rules in Brown's appellate briefing, we believe a sanctions order of $15,000 is appropriate.

Today's SCOTUS articles of note

Law360 has What We Learned From Supreme Court's First Telehearings

And see Tobi Young, First Native American SCOTUS Clerk, Recounts Year With Gorsuch: Being part of the first female-majority law-clerk class was also a special privilege.

"Calling Mrs. Palsgraf"

More asininity at play in Beds' latest column, I Don't Make These Things Up
"a life in the law is never dull. Forty-eight years into my practice my fellow human beings continue to come up with ideas that bring my imagination to a boggling halt."

5th DCA on "access to justice" via remote args

Virtual Oral Arguments
Oral arguments in a “virtual courtroom” promote access to justice during the COVID-19 pandemic, create educational opportunities, and ensure that the work of the justice system effectively continues for the benefit of all court users.

Videos on remote arguments

The website for the CLA's Committee on Appellate Courts now has short videos discussing remote arguments at the Cal Supreme Court, 9th Cir., and 1st, 2d, and 3d districts:
https://calawyers.org/section/litigation/standing-committees/committee-on-appellate-courts/covid-19-related-materials/

This is "must-see TV" for appellate nerds.

Comments re SCOTUS tele-args

The Nat'l Law Journal offers That's a Wrap: What Leading Appellate Lawyers Say About Historic SCOTUS Arguments

The U.S. Supreme Court on Wednesday finished its sixth and final day of first-ever telephonic arguments with a few surprises and generally positive reviews. But did the virtual format affect the substance of the arguments and will there be any long-lasting effects?
The surprises included the full participation of Justice Clarence Thomas, the toilet flush heard around the country, and the knowledge that, like many of us, some justices forgot to unmute their phones at times. And the format had a definite impact on the tenor and substance of the arguments, according to several advocates who provided observations to The National Law Journal.
The justices heard 10 arguments over the two-week May session after postponing its scheduled March and April argument sessions because of the COVID-19 virus. They also moved 10 cases from those two sessions into the new term beginning in October.
The NLJ reached out to a handful of veteran appellate lawyers for their assessment of the arguments—the pros and cons, and everything in between. The lawyers provided thoughts on the dynamics and tempo of the phone sessions—and the benefit of hearing regularly from Thomas, who often did not ask questions back when arguments were held in open court.

Campaign tees available now!

See also here: Frodo Baggins 2020? about Justice Thomas asking about the LOTR hero at oral argument.

Want to listen to 3d Dist. arguments?

Instructions for Telephonic Oral Argument for Public and Press — Listen-Only
Following are instructions to join a conference call with the California Court of Appeal, Third Appellate District, for purposes of telephonic oral argument. The public and members of the press can listen but will not be able to speak during oral argument. REMINDER: The court requests that if you would like to listen to the oral argument, join the conference call no later than 9:25 a.m. for the morning session, and no later than 1:55 p.m. for the afternoon session. When a caller joins, the conference line makes a beeping sound, which can be disruptive to the proceedings. If for any reason you get disconnected, immediately call the phone number and use the participant code listed below and you will be reconnected. If you experience any technical issues during the call (i.e. static on the line, hold music plays during call), press *0 and a CenturyLink technical support specialist will help you. For further assistance, please contact CenturyLink Technical support at 1-800-485- 0844 or 1-719-885-1577. Make sure you have your Toll-Free Number and passcode on hand when you call.
1. Dial 1-877-820-7831. If the line is busy, dial 1-720-279-0026.
2. Enter the participant code: 4809807#.
3. Hang up when the oral argument is completed.

Circuit Judge's view of SCOTUS args

In A Judge's Guide to the Supreme Court Livestream, 3d Circuit Judge Marjorie Rendell explains how she listens to SCOTUS arguments:

As I listen to Supreme Court arguments, I try to concentrate on the questions the justices are asking to figure out their thought process. Where is he or she going with this? Is the justice pushing back on the lawyer, or on a colleague? Is he or she throwing a curveball, or a softball? Is the skepticism expressed by a particular justice real, or is he or she trying to get a reaction from the lawyer that will be an ah-ha moment for others? 

Justice Lillie in new book

Law.com has New Book 'Shortlisted' Spotlights 9 Women Passed Over for Supreme Court:

The new book ”Shortlisted: Women in the Shadows of the Supreme Court”—from Renee Knake of the University of Houston Law Center and Hannah Brenner Johnson, vice dean of California Western School of Law in San Diego—”tells the overlooked stories” of those women. The book arose out of the authors’ study of media coverage of the nominations of Sonia Sotomayor and Elena Kagan.

The National Law Journal spoke with Knake about how that study spurred a book about the nine women and a short-listing phenomenon that exists in the legal and corporate worlds.
How did the media study inspire the short-listed book? We came across an Oct. 14, 1971, article in the New York Times, appearing above the fold, written about Mildred Lillie. It was the first time we were able to uncover such a public airing of a short list. Nixon had six names. What was most interesting was who the heck was Mildred Lillie and how many other women were short-listed before Sandra Day O’Connor was nominated? That was really the first seed planted for this book.