Friday, May 26, 2017

PJ Turner stories

Today's DJ includes My Reflections on Justice Paul Turner, by H&L's Jeremy Rosen, with some anecdotes and reflections. No doubt nearly every SoCal appellate practitioner has stories to share. And now's the time. So raise a glass over this holiday weekend and share those tales. To get you started, here's one:
My very first appellate oral argument before an appellate justice was a law school moot court competition in which Justice Turner was the presiding justice. He asked thoughtful questions that made the experience very enjoyable. On my scoring sheet, he gave me "excellent" ratings: 95s for preparation, presentation, and performance in response to questions, a 98 for verbal skills, and 100 for personal qualities! What a rush! Such praise from a real justice--I can't wait to become a real appellate lawyer. (I never stopped to ponder whether he always gave all students this sort of encouragement.)
Flash forward a few years, and my first oral argument in the California Court of Appeal puts me before none other than PJ Turner, this time in his real day job. I was representing an insurance company in a bad faith coverage case as respondent trying to defend a demurrer sustained without leave to amend. Uh oh. At argument, PJ Turner was still jocular, but not especially inclined to my side. He asks something along the lines of, "Don't we need to give the plaintiff the benefit of the doubt, since this is coming to us just on summary judgment?" Walking into his trap, I correct him and say, "No, Your Honor, this appeal isn't from a summary judgment, it's from a demurrer." He quips back, "Well, isn't that worse?!" Outcome: reversal, of course. But the pleasure of appearing before him remained constant over the years (decades now!) to come. We have lost a legend.
Feel free to submit your own PJ Turner tale to SCAN to publicly share your memories. (But do it quickly! No further extensions will be granted!)

Contributions can be made in Justice Turner's name to the UCLA Jonnson Comprehensive Cancer Center.

Thursday, May 25, 2017

IRAP v. Trump En Banc opinion (intros)

Today's IRAP v. Trump 4th Circuit en banc opinion is 205 pages long. Here's a breakdown: The first 11 pages lists the parties and numerous amici.

Pages 12-79 is the majority opinion which begins like this:
The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.
Next is a concurring opinion by one judge on page 80:
I concur in the judgment of the majority insofar as it affirms the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the Executive Order against the officers, agents, and employees of the Executive Branch of the United States, and anyone acting under their authorization or direction, who would attempt to enforce it, because it likely violates the Establishment Clause of the United States Constitution. I also concur in the judgment of the majority to lift the injunction as to President Trump himself.
Then there is a concurring in part/concurring in the judgment opinion on pages 81-93:
I concur in the majority opinion’s analysis with respect to its conclusions: (1) that the stated “national security purpose” of the Second Executive Order1 likely fails Mandel’s “bona fide” test and violates the Establishment Clause, see Kleindienst v. Mandel, 408 U.S. 753 (1972); and (2) that the record before us supports the award of a nationwide injunction.2 I write separately to express my view that although the plaintiffs are unlikely to succeed on the merits of their claim under Section 1152(a)(1)(A), their request for injunctive relief under the INA nevertheless is supported by the failure of Section 2(c) to satisfy the threshold requirement of Section 1182(f) for the President’s lawful exercise of authority.
On pages 94-147 is another concurring opinion that begins:
Invidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination. We have matured from the lessons learned by past experiences documented, for example, in Dred Scott and Korematsu. But we again encounter the affront of invidious discrimination—this time layered under the guise of a President’s claim of unfettered congressionally delegated authority to control immigration and his proclamation that national security requires his exercise of that authority to deny entry to a class of aliens defined solely by their nation of origin. Laid bare, this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims. Such discrimination contravenes the authority Congress delegated to the President in the Immigration and Nationality Act (the “Immigration Act”), 8 U.S.C. § 1101 et seq., and it is unconstitutional under the Establishment Clause.
This is followed by a dissent at pages 148-178, which starts:
The district court issued a nationwide preliminary injunction against Executive Order No. 13,780 issued by President Donald Trump on March 6, 2017, to suspend temporarily, while vetting procedures could be reviewed, the entry of aliens from six countries, reciting terrorism-related concerns. While the court acknowledged the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a) to enter the Order and also acknowledged that the national security reasons given on the face of the Order were legitimate, the court refused to apply Kleindienst v. Mandel, 408 U.S. 753 (1972), which held that courts are precluded from “look[ing] behind” “facially legitimate and bona fide” exercises of executive discretion in the immigration context to discern other possible purposes, id. at 770. Relying on statements made by candidate Trump during the presidential campaign, the district court construed the Executive Order to be directed against Muslims because of their religion and held therefore that it likely violated the Establishment Clause of the First Amendment.
Another dissent appears at pages 179-189, and begins:
National security is a complex business with potentially grave consequences for our country. Recognizing this fact, the Supreme Court has observed that “it is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981).2 This observation is especially true in today’s world, where we face threats from radical terrorists who seek to cross our borders for the purpose of harming us and destroying our way of life. Although we often are quick to forget the fact, “the real risks, the real threats, of terrorist attacks are constant and not likely soon to abate,” Boumediene v. Bush, 553 U.S. 723, 793 (2008); therefore, “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010). Given the multitude of critical factors involved in protecting national security, including the delicacy of foreign relations and the worldwide intelligence information that is constantly generated, combined with the ever-changing threatening circumstances, “questions of national security . . . do not admit of easy answers, especially not as products of the necessarily limited analysis undertaken in a single case,” Lebron v. Rumsfeld, 670 F.3d 540, 549 (4th Cir. 2012), and “they are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil,” Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
 And finally from pages 190-205 is another dissent (about standing):
In their haste to reach the merits of the plaintiffs’ Establishment Clause claim, my colleagues in the majority neglect to follow the longstanding and well-defined requirements of Article III of the United States Constitution. They err, as did the district court, in holding that the plaintiffs had standing to bring an Establishment Clause claim. For that reason, I respectfully dissent from the majority’s decision to uphold the district court’s preliminary injunction. The plaintiffs do not have standing to bring the current action.
In sum:
Affirmed in part, vacated in part by published opinion. Chief Judge Gregory wrote the opinion, in which Judges Motz, King, Wynn, Diaz, Floyd, and Harris joined in full. Judge Traxler wrote an opinion concurring in the judgment. Judge Keenan wrote an opinion concurring in part and concurring in the judgment, in which Judge Thacker joined except as to Part II.A.i. Judge Wynn wrote a concurring opinion. Judge Thacker wrote a concurring opinion. Judge Niemeyer wrote a dissenting opinion, in which Judges Shedd and Agee joined. Judge Shedd wrote a dissenting opinion, in which Judges Niemeyer and Agee joined. Judge Agee wrote a dissenting opinion, in which Judges Niemeyer and Shedd joined.
See also Just The Hits: Key Excerpts From 4th Circuit Travel Ban Ruling

Supreme Court appealability opinion today & 4th Cir.'s Travel Ban opinion

Ok, here's one today on appealability from the Supremes for true appellate nerds only!
Dhillon v. John Muir Health begins:
As a general rule, a litigant may appeal an adverse ruling only after the trial court renders a final judgment. (Code Civ. Proc., § 904.1.) The question in this case concerns the application of this general rule when a trial court has granted a petition for writ of administrative mandamus and remanded the matter for proceedings before an administrative body. The issuance of the writ did not definitively resolve the dispute between the parties, but it did mark the end of the writ proceeding in the trial court. Is the court's order an appealable final judgment? We conclude that it is, and we reverse the contrary judgment of the Court of Appeal.

 Also in today's DJ, certified family law and appellate specialist Claudia Ribet offers Is it appealable in family law, or not? Ruling provides guidance.
Although many lawyers believe that anything after a trial on the merits is appealable under Code of Civil Procedure Section 904.1(a)(2), it is well established that temporary custody orders are not appealable. Lester v. Lennane, 84 Cal. App. 4th 536, 559 (2000). Stupp v. Schilders, 2017 DJDAR 4605 (Cal. App. 1st Dist., May 18, 2017), makes clear that not all post-judgment orders are not appealable because, although they follow an earlier judgment, they "are more accurately understood as being preliminary to a later judgment, at which time they will become ripe for appeal."
Also of interest today, the 4th Circuit's opinion in the travel ban case, IRAP v. Trump, in which many SoCal appellate lawyers participated as amici. (Good luck trying to access it right now; the 4th Cir. website appears to be overwhelmed... try here) Here's the opening paragraph:
The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.


Wednesday, May 24, 2017

Who'll admit to being an appellate lawyer?

Image result for california flag wavingToday's DJ has its annual Top Women Lawyers insert, which includes a handful who publicly admit they are appellate lawyers: Laura Brill of Kendall Brill & Kelly, Wendy McGuire Coats of Fisher & Phillips, Heather Guerena of Duane Morris, Anna-Rose Mathieson of California Appellate Law Group, and M.C. Sungaila of Haynes & Boone.  (And then there are some known appellate lawyers who don't list it as their "practice type," e.g., GDC's Theane Evangelis.) Say it loud, say it proud; wave that California appellate practice flag!

Monday, May 22, 2017

Special Session in Memory of Justice Schauer

Second District Court of Appeal to Host Special Session in Memory of Justice Richard Schauer
The Court of Appeal, Second Appellate District will host a special session to honor and celebrate the life and career of former Presiding Justice Richard Schauer.
Monday June 12, 2017 at 1 p.m., Court of Appeal Courtroom, Third Floor, 300 South Spring St., Los Angeles

MetNews article: Presiding Justice Turner Dies

Today's MetNews presents C.A. Presiding Justice Turner Dies, noting:
  • he "put in unusually long hour hours, and even had work brought to him at his home when he stopped going to the office at the start of this month, as he weakened, in the final stages of liver cancer ...."
  • The Chief said, "He was a force of nature in his approach to the law, his work ethic, with a real zest for live. I will always remember his razor wit, his collegiality, and his optimism."
  • He recently told friends, "I'm not afraid of dying -- I just can't bear the thought of not being a member of the Court of Appeal."
The article has great pictures and many other reminiscences from judges and practitioners.

SoCal Superior Court appointments today

Governor Brown Appoints Nine to Los Angeles County Superior Court

SACRAMENTO – Governor Edmund G. Brown Jr. today announced the appointment of Fernando L. Aenlle-Rocha, Robert S. Harrison, Sarah J. Heidel, Gus T. May, Rubiya Nur, Nancy A. Ramirez, Lynn H. Scaduto, Neetu S. Badhan-Smith and J. Christopher Smith to judgeships in the Los Angeles County Superior Court.

Governor Brown Appoints Two toOrange County Superior Court

SACRAMENTO – Governor Edmund G. Brown Jr. today announced the appointment of Carol L. Henson and Antony C. Ufland to judgeships in the Orange County Superior Court.


Governor Brown Appoints Two to SanBernardino County Superior Court

SACRAMENTO – Governor Edmund G. Brown Jr. today announced the appointment of Winston S. Keh and Antoine F. Raphael to judgeships in the San Bernardino County Superior Court.

Governor Brown Appoints Tana L.Coates to San Luis Obispo County Superior Court


SACRAMENTO – Governor Edmund G. Brown Jr. today announced the appointment of Tana L. Coates to a judgeship in the San Luis Obispo County Superior Court.

See in The Recorder: Brown's 23 New Trial Judges Include Ex-Big Law, Prosecutors

tidbits

A black and white photograph of Harvey Milk sitting at the mayor's deskThe State Bar has a new look for its website, www.calbar.ca.gov. "The website redesign and overhaul comes at a time of ongoing reforms for the State Bar, and aims to provide greater accessibility for the public, attorneys and applicants."

Per Government Code section 6721, today is Harvey Milk Day.
See today's official proclamation.

ABTL-LA's Judicial Reception (honoring 9th Cir. judges and 2d DCA justices) will be June 13, 6-8 p.m. at the Biltmore. Details here.

Much-Admired Justice Turner Remembered

Today's DJ presents Much-Admired Justice Remembered for his Enthusiasm and Way with People, about PJ Paul Turner who died last Thursday from liver cancer at 69.
Justice Kriegler said, "Paul was just the most energetic, positive, friendly person anyone could find."
Justice Baker: "His dedication and commitment to the work of the Court of Appeal was and remains unmatched."
The Chief said, "he was always optimistic and collegial" with "an incredible work ethic and a deep passion for the law."
Other quotes: "His sense of humor was legendary, and the legend was real." "He looked cancer and the possibility of death in the with defiance."

The memorial service will be Wednesday, May 31, at 11:00 a.m. at Rolling Hills Covenant Church, 2222 Palos Verdes Dr. North, Rolling Hills Estates, 90274.

Friday, May 19, 2017

Jury Clears JAMS in Resume-Padding Trial

The Recorder reports in a breaking news alert: "The jury couldn’t decide if retired appeals judge Sheila Sonenshine made misrepresentations on her JAMS bio, but they decided that didn’t cause harm to venture capitalist Kevin Kinsella." Read More
Judge John Meyer ordered judgment for JAMS on Friday afternoon after the jury found that, regardless of whether Sonenshine’s resume was truthful, it was not a substantial factor in causing Kinsella any damage. Jurors deadlocked 8-4 in favor of JAMS and Sonenshine on the first question, but voted 11-1 for them on the latter. Nine votes were needed for a verdict.

RIP 2/5's PJ Paul Turner


Extremely sad news: Presiding Justice Paul Turner died last night.
No details about services yet.
(Watch him give a lecture from last June here. And an interview from 2007 is here.)

Much more to come on this, but already the appellate world is deeply saddened about the loss of such a dedicated, diligent public servant, with such good nature, wit, humor, and personality. He will be sorely missed.

Thursday, May 18, 2017

Visual aids in decisions

Image result for gulliver's travels wood cutIt's often helpful in realty cases to see maps of the property, especially in easement cases. So 2/6 provides color photos and maps in this decision here. Considering how easy it is nowadays to insert graphics into documents, it's surprising it's not done more often. And, as Judge Milan Smith has taught us (here), a nice graphic can liven up a dissent.
And there's a good blog post about this topic (with many Judge Posner examples) here.

Wednesday, May 17, 2017

PACER Class Action Notice

If you paid fees to access federal court records on PACER at any time between April 21, 2010 and April 21, 2016, a class action lawsuit may affect your rights.

So begins the notice for the PACER Fees Class Action notice available here. Odds are pretty good that if you're reading this, you're probably a class member!

Image result for members only jacket
Members Only [jacket]!

Tips From A Judge On Becoming A Better Legal Writer

Image result for murder your darlings
Law360 reports on an article in the NY State Bar Ass'n Journal by Acting Supreme Court Justice Gerald Lebovits, The Legal Writing Process for New Lawyers: Getting It Written and Right. The article discusses three stages of writing: pre-writing (e.g., thinking, researching, analyzing, outlining), writing (e.g., what parts to write first), and post-writing (revising and editing). He recommends spending 30% of your time on the fist and third stages, and the remaining 40% on the writing part. In the murder-your-darling department, he advises: "Don’t be in love with your writing. Let go of words, sentences, and citations that don’t help you.”

Looking for a frivolous appeal, vexatious litigant, appellate sanctions case? Look here.
But if you prefer dodged-a-sanctions-bullet stories, then look here.

Federalist Society article

Today's Washington Post's Monkey Cage Analysis presents Trump’s values are abhorrent to the Federalist Society of conservative lawyers. That doesn’t stop them from helping him.

Special items in reporters

Once upon a time we did legal research in libraries with books. We walked the stacks to locate volumes of case reporters and flipped actual pages to find particular cases. In the course of looking at book spines or cracking volumes open, sometimes one would chance upon something in the volume that was not an opinion. Those special items were often pretty darn interesting (to a certain type of mind) and a great momentary frolic from ordinary research. For those who miss that experience, here's a weak substitute: The California Official Reports Public Access Web site has a link to Special Sessions of the California Supreme Court and California Courts of Appeal. Here you will find Celebrations, Commemorations, Dedications, Memoriams, and transcripts from Special Sessions:

  1. Celebrations
    Honoring the Record Service of Justice Stanley Mosk, January 7, 2000
    150th Anniversary of the Supreme Court, February 8, 2000
    100th Anniversaries of the Orange County Bar Association and the Old Orange County Courthouse, October 4th, 2001
    100th Anniversary of the Courts of Appeal, April 11, 2005
  2.  
  3. Commemoration
    Honorable Earl Johnson, Jr. Retired October 7, 2007
  4.  
  5. Dedications
    Supreme Court of California Courtroom Dedication, January 8, 1999
    Stanley Mosk Library and Courts Building, November 6, 2002
    Courthouse Dedication, Court of Appeal, Santa Ana (4th Dist., Div. 3), January 14, 2010 
  6.  
  7. Memoriams
    Honorable David N. Eagleson (1924-2003)
    Bernard E. Witkin (1904 - 1995)
    Honorable Howard M. Dabney (1927 - 1996)
    Honorable Otto M. Kaus (1920 - 1996)
    Honorable Allen E. Broussard (1929 - 1996)
    Honorable Raymond L. Sullivan (1907 - 1999)
    Honorable Frank K. Richardson (1914 - 1999)
    Honorable Rose Elizabeth Bird (1936 -1999)
    Honorable Richard W. Abbe (1926 - 2000)
    Honorable Don Ross Work (1928 - 2001)
    Honorable Stanley Mosk (1912 - 2001)
    Honorable Robert E. Rickles (1922 - 2001)
    Brian Thomas Clearwater (1953 - 2003)
    Honorable Thomas Fulton Crosby, Jr. (1940 - 2004)
    Honorable Robert K. Puglia (1929 - 2005)
    Honorable Robert Gardner (1911 - 2005)
    Honorable Paul Boland (1942 - 2007)
    Honorable F. Douglas McDaniel (1920 - 2008)
    Honorable David G. Sills (1938 - 2011)
    Honorable Stephen Monahan Kelly (1948 - 2013)
    Honorable Margaret J. Morris (1922-2012)
  8.  
  9. Special Sessions
    Special Session of the Supreme Court, Fresno, California, October 8, 2002
    Special Session of the Supreme Court, San Jose, California, December 2, 2003
    Special Session of the Supreme Court, San Diego, California, December 7, 2004
    Special Session of the Supreme Court, Redding, California, October 5, 2005
    Special Session of the Supreme Court, Santa Barbara, California October 3, 2006
    Special Session of the Supreme Court, Santa Rosa, California October 2, 2007
    Special Session of the Supreme Court, Riverside County, California, October 7, 2008
    Special Session of the Court of Appeal, Fourth Appellate District, Division Two, Riverside, California August 13, 2009
    Special Session of the Supreme Court, Berkeley, California, November 3, 2009
    Special Session of the Supreme Court, San Francisco, California, September 7, 2011
    Special Session of the Supreme Court, Davis, California, October 3, 2012
    Special Session of the Supreme Court, San Francisco, California, February 5, 2013
    Special Session of the Supreme Court, Berkeley, California, October 9, 2013

Chemerinsky Named Law Dean at UC Berkeley

The Recorder reports that Dean Chemerinsky will leave UC Irvine to join Boalt Hall.
See Berkeley News here: "He will begin his five-year term on July 1."

Tuesday, May 16, 2017

CAAL elects officers & new members

CAAL's website has posted Academy News about new officers and members:

The California Academy of Appellate Lawyers is pleased to announce that at its May 7, 2017 meeting in Pasadena, the following officers were elected for the 2017-18 term: Margaret M. Grignon of the Grignon Law Firm in Long Beach, President; Susan Brandt-Hawley of the Brandt-Hawley Law Group in Glen Ellen, First Vice President; John A. Taylor, Jr. of Horvitz & Levy LLP in Burbank, Second Vice President; and Kirk C. Jenkins of Sedgwick LLP in Chicago, Secretary-Treasurer.
The Academy also admitted Alana H. Rotter and Rochelle L. Wilcox as new members.  Ms. Rotter is a partner at Greines, Martin, Stein & Richland LLP in Los Angeles.  Ms. Wilcox is a partner at Davis Wright Tremaine LLP in Los Angeles.  Both Ms. Rotter and Ms. Wilcox have been certified by the California State Board of Legal Specialization as specialists in appellate law.

Founded in 1972, the Academy is the nation's oldest lawyers’ organization dedicated to appellate practice. Our members are California lawyers with substantial appellate experience, who are elected to membership after rigorous scrutiny of their skill in advocacy before the appellate courts.

Monday, May 15, 2017

DJ trilogies & sequels

Today's DJ presents Moskovtiz on Appeals [sic!] Statement of Facts: Part III, with some additional thoughts about the importance of the standard of review in relating the facts, providing examples in the contexts of demurrers, summary judgments, verdicts after trial, and evidentiary rulings.

Not to be outdone in the trilogy department, Justice Hoffstadt launches a triple-header about the Fourth Amendment in Search Wars: A New Hope for Definitional Clarity. Yep, he uses the Star Wars trilogy as an "entertaining framework" for his series on the past, present, and possible future of the Fourth Amendment. And we'd be trying so hard lately not to geek out here at SCAN. We even intentionally resisted a forceful urge and did NOT do a special May 4 (Star Wars Day) post. But there's just no escaping nerd-dom in the appellate realm. Embrace it!

On the history side, see The California Circuit? tracing some federal appellate history.

Image result for dr. evil one million dollarsAnd don't miss Dr. Evil in this opinion here from the 6th Circuit today. Seriously.

On the appellate sanctions front, what happens to an appellant who offers a record that "is so silent that it all but disappears"? Answer: $2K in sanctions and a referral to the State Bar. See the gory details here.