Thursday, July 31, 2014

CJ Kozinski on Firing Squads

Self-professed "avid reader" and "big fan" of SCAN David Hackett at GMSR draws our attention to this LA Times interview of Chief Judge Kozinski, in which he discusses his reviews on the death penalty and his recent dissental: Judge Alex Kozinski on bringing back firing squads: No, I wasn't kidding


See here too.

Aug. 28 Hearing date for nominees

Hearings to consider judicial seats on the Supreme Court of California, and the Court of Appeal Second and Third Appellate Districts

SAN FRANCISCO—Four public hearings have been scheduled by the Commission on Judicial Appointments for Thursday, August 28, 2014, beginning at 9:00 a.m. in the Supreme Court Courtroom in the Ronald M. George State Office Complex, Earl Warren Building, 350 McAllister Street, Fourth Floor, San Francisco:
9:00 – 11:00 a.m. Professor Mariano-Florentino Cuéllar, as Associate Justice of the Supreme Court of California
Commission members: Chief Justice Tani G. Cantil-Sakauye (Chair), Attorney General Kamala D. Harris, and Senior Presiding Justice Joan Dempsey Klein
11:15 a.m. – 12:15 p.m. Mr. Jonathan K. Renner, as Associate Justice of the Court of Appeal, Third Appellate District (Sacramento)
Commission members: Chief Justice Tani G. Cantil-Sakauye (Chair), Attorney General Kamala D. Harris, and Administrative Presiding Justice Vance W. Raye
1:00 – 2:00 p.m. Judge Lee S. Edmon, as Presiding Justice of the Court of Appeal, Second Appellate District, Division Three (Los Angeles)
Commission members: Chief Justice Tani G. Cantil-Sakauye (Chair), Attorney General Kamala D. Harris, and Senior Presiding Justice Joan Dempsey Klein
2:15 – 3:15 p.m. Judge Brian M. Hoffstadt, as Associate Justice of the Court of Appeal, Second Appellate District, Division Two (Los Angeles)
Commission members: Chief Justice Tani G. Cantil-Sakauye (Chair), Attorney General Kamala D. Harris, and Senior Presiding Justice Joan Dempsey Klein

Summary Biographies
Professor Cuéllar fills the vacancy created by the upcoming retirement of Associate Justice Marvin R. Baxter on January 4, 2015. He has been a Stanford Law School professor since 2001 and was appointed Stanley Morrison Professor of Law in 2012. Professor Cuéllar has been director of Stanford University’s Freeman Spogli Institute for International Studies since 2013, Professor of Political Science at Stanford’s School of Humanities and Sciences since 2010, and was co-director of Stanford’s Center for International Security and Cooperation from 2011 to 2013. He serves as a presidential appointee to the Council of the Administrative Conference of the United States, and is a member of the Board of Directors for the Constitution Project, the American Law Institute Council and the American Constitution Society Board of Directors.
Professor Cuéllar co-chaired the National Equity and Excellence Commission created by Congress from 2011 to 2013. Under President Obama, he served as special assistant to the President for Justice and Regulatory Policy at the White House Domestic Policy Council in 2009 and 2010 and was co-chair of the Obama-Biden Transition’s Immigration Policy Working Group in 2008 and 2009. He was a law clerk to Judge Mary M. Schroeder at the U.S. Court of Appeals for the Ninth Circuit from 2000 to 2001 and a senior advisor to the Under Secretary for Enforcement at the U.S. Department of the Treasury from 1997 to 1999.
Mr. Renner fills the vacancy created by the elevation of Associate Justice Tani G. Cantil-Sakauye to Chief Justice of California in 2011. He has served as legal affairs secretary in the Office of Governor Brown since 2011 and as senior assistant attorney general at the California Department of Justice, Office of the Attorney General from 2009 to 2010, where he was supervising deputy attorney general from 2006 to 2009 and deputy attorney general from 2000 to 2006. Mr. Renner was an associate at Kronick, Moskovitz, Tiedemann and Girard from 1998 to 2000 and at Porter, Scott, Weiberg and Delehant from 1997 to 1998.
Judge Edmon fills the vacancy created by the upcoming retirement of Presiding Justice Joan Dempsey Klein on January 4, 2015 and has served as a judge of the Superior Court of California, County of Los Angeles since 2000, where she served as Presiding Judge from 2011 to 2012. She was partner at Dewey Ballantine LLP from 1990 to 2000, where she was an associate from 1987 to 1990, and was an associate at Adams Duque and Hazeltine from 1981 to 1987. Judge Edmon was president of the Los Angeles County Bar Association from 1998 to 1999.
Judge Hoffstadt fills the vacancy created by the retirement of Associate Justice Kathyrn D. Todd and has served as a judge of the Superior Court of California, County of Los Angeles since 2010. He was a partner at Jones Day from 2007 to 2010 and served as an assistant U.S. Attorney at the U.S. Attorney’s Office, Central District of California from 2000 to 2007, as senior counsel at the U.S. Department of Justice, Office of Policy Development from 1998 to 2000, and at the Federal Communications Commission, Office of General Counsel from 1997 to 1998. Judge Hoffstadt was a law clerk for Associate Justice Sandra Day O’Connor at the U.S. Supreme Court from 1996 to 1997 and for Judge Cynthia H. Hall at the U.S. Court of Appeals, Ninth Circuit from 1995 to 1996.
Testimony and Comment
Anyone wishing to testify before the commission must state that request in writing and include a summary of the facts on which any testimony or opinion will be based. A request to be included on the speakers’ list must be received by the commission by 5:00 p.m. on Thursday, August 21, 2014.
And all communications to the commission by persons who wish to comment should be received by 5:00 p.m. on Thursday, August 21, 2014.
The commission’s address is:
Commission on Judicial Appointments
c/o Chief Justice of California
Supreme Court of California
350 McAllister Street
San Francisco, California 94102
Attention: Secretary to the Commission on Judicial Appointments
The Guidelines for the Commission on Judicial Appointments are published as an appendix to the California Rules of Court and are available on the California Courts website.

Wednesday, July 30, 2014

The 5 Types of Appellate Briefs You Don't Want to Write

In today's Recorder Cameron Gilbert (director of Counsel Press Legal Research Group) offers The Five Types of Appellate Briefs You Don't Want to Write. In short, his dreadful quintet are:

1. The See-What-Sticks Brief -- Defect = presenting too many issues.
2. The Remix Brief -- Defect = merely converts trial briefing into appellate briefing.
3. The Frankenstein Brief -- Defect = too many cut-and-pastes from too many other docs.
4. The Too-Many-Cooks Brief -- Defect = multiple collaborators prevent a harmonious brief.
5. The Un-Brief Brief -- Defect = not enough editing, resulting in a wordy, rambling document.



And how does one serve a Franken-brief?

International Shoe (and "Stella!")

Nothing from law school relates to practice, right? Well, here's a published opinion today that cites International Shoe Co. v. Washington (1945) 326 U.S. 310-- a name that resonates with anyone who took first year civil procedure! Heck, where's Pennoyer v. Neff, when you need it?
Speaking of International Shoe, did you know that this fellow worked there:
Tennessee Williams NYWTS.jpg
And while there, he met a co-worker named Stanley Kowalski...

"Personal jurisdiction!!!"

Tuesday, July 29, 2014

Tino video

Want to see nominee Tino Cuellar in action?

Here he is in 2012 at the 9th Circuit Judicial Conference (yes, THAT conference on Maui...):
Tracking the Trackers, Part 2: Tracking and the Government
(His presentation begins around 17:30 minutes into the recording.)

Here's his TedTalk:

What Borders Tell Us About The World: Mariano-Florentino Cuéllar at TEDxStanford

And here's an interview about his book, "Governing Security: The Hidden Origins of American Security Agencies." ("The book looks at the origins of the Federal Security Agency under President Franklin D. Roosevelt and the Department of Homeland Security under President George W. Bush.")


Monday, July 28, 2014

News of the wonks


  • Today's Recorder reports High Court Appointee is Ready to Wonk and Governor Appoints Legal Adviser to Third District"Brown's selection of Renner continues a long tradition of governors nominating their legal secretaries to the bench. Renner will join Justice Andrea Lynn Hoch, who was appointed to the Third District by former Gov. Arnold Schwarzenegger in 2011 after serving as his legal affairs secretary for five years. Justices Peter Siggins and Charles Poochigian also served as secretaries under Schwarzenegger and former Gov. Pete Wilson before their respective appointments to the First and Fifth districts."

  • The Recorder's BAR-ometer also gives a thumbs up to the Ivory Tower: "With a second academic pick for the state Supreme Court, the governor is moving intellectuals—and maybe the court—back into the spotlight."

  • The DJ offers: Governor Nominates His Legal Affairs Secretary to Appellate Court Bench: Brown picks legal affairs secretary for 3rd District Court of Appeal in Sacramento, about the nomination of Jonathan Renner.
  • The MetNews provides Brown Taps Renner for Third District Court of Appeal.
  • Also of interest earlier this month is Onley v. Schneider National Carriers, a 4/2 case where settlement did not prevent issuance of an unpublished decision:
At the last minute, however, after this court had substantially finished preparing a tentative opinion (see Ct. App., Fourth Dist., Div. Two, Internal Operating Practices & Proc., VIII, Tentative opinions and oral argument), Schneider notified us that it had settled with Onley and asked us to dismiss the appeal. Although we will grant the request for dismissal (see Neary v. Regents of University of California (1992) 3 Cal.4th 273, 285), in light of the tardiness of the request (see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2014) ¶ 5:64) and the ultimately lack of merit of the appeal, we issue this opinion expressing our views on the issues. (Lara v. Cadag (1993) 13 Cal.App.4th 1061, 1065-1066.)
See also fn.2 at pg. 9, where the court makes an interesting point about a  use for unpublished cases.


Friday, July 25, 2014

Another nomination! (This one to the 3d)

Friday, July 25, 2014

Governor Brown Nominates Jonathan K. Renner
to the Third District Court of Appeal

SACRAMENTO – Governor Edmund G. Brown Jr. today announced the nomination of Jonathan K. Renner for associate justice of the Third District Court of Appeal.


Renner, 44, of Sacramento, has served as legal affairs secretary in the Office of Governor Edmund G. Brown Jr. since 2011. He served as senior assistant attorney general at the California Department of Justice, Office of the Attorney General from 2009 to 2010, where he was supervising deputy attorney general from 2006 to 2009 and deputy attorney general from 2000 to 2006. Renner was an associate attorney at Kronick, Moskovitz, Tiedemann and Girard from 1998 to 2000 and at Porter, Scott, Weiberg and Delehant from 1997 to 1998. He earned a Juris Doctor degree from the University of the Pacific, McGeorge School of Law and a Bachelor of Arts degree from the University of California, Davis.

This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Kamala D. Harris and Presiding Justice Vance W. Raye. If confirmed, Renner will begin his term on January 5, 2015 and will fill the vacancy created by the elevation of Justice Tani Cantil-Sakauye to the California Supreme Court. Renner is a Democrat.
The compensation for this position is $211,260.

Wednesday, July 23, 2014

Comment on proposed 9th Circuit rule changes!

The 9th Circuit has posted a request for public comment about possible rule changes here, including codification of the streamlined extension procedure. Weigh in by emailing comments before September 3.

The Power Of The Dork Side

"No Substitutions"

Settle v. State of California, published by 2/6's Justice Yegan today, begins and ends like this:
A patron orders a hamburger from the menu at a diner and asks the server if he can substitute edamame for french fries. "No substitutions," says the server. We, like the server who cannot add or substitute entries on the menu, cannot add or substitute words in a statute. 
 ***
Conclusion
Section 128.7 provides for attorney fees sanctions against an attorney. The Attorney General, relying on the Carroll case, here elected not to seek section 128.7 relief. Unless and until the Legislature amends section 1038 to authorize an award of "sanctions" against counsel, defense costs and fees may not be imposed against counsel pursuant thereto. Just as the server at the diner said, "No substitutions" [sic - no period here]

Pro tem update: Another couple months for Judge Burke in 2/6

2d DCA Assigned Judges

The following are currently sitting on assignment:

  • Judge Rita Miller of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until July 31, 2014
  • Judge John Shepard Wiley, Jr. of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until July 31, 2014
  • Judge Edward A. Ferns of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until July 31, 2014
  • Judge Lee Edmon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until July 31, 2014 -- {from pro-tem to PJ!}
  • Retired Judge Michael Mink will be sitting Pro-Tem in Division Five until July 31, 2014
  • Judge Earle Jeffrey Burke of the San Luis Obispo Superior Court, will be sitting Pro-Tem in Division Six until September 30, 2014
  • Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until July 31, 2014
  • Judge Russell S. Kussman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until July 31, 2014
Speaking of pro tems, here's an interesting published case from Judge Kussman in Div. 8, that starts like this:
Studying Sucks, I Prefer To Gamble
"When it comes to educating children, few things are more controversial than standardized tests. And few things generate more conflict than how, or even if, teachers should try to improve their students’ performance on such tests. But by law, school districts must establish standards of expected pupil achievement, and teachers are evaluated and assessed in regards to their students’ progress. Whatever the merits of standardized tests, they are part of the present educational environment in which students, teachers, and parents live."

Tuesday, July 22, 2014

Justice Sotomayor to speak in San Diego in October

The National Association of Women Judges will have its annual conference in San Diego October 15-19. SCOTUS Justice Sotomayor will give the keynote speech at the Gala Awards Banquet on October 18 and will also speak on "Access to Justice and Implicit Bias" (with 9th Circuit Judge McKeown) on October 19. Is that not enough of a draw? How about these names:
Brandeis University Professor Anita F. Hill and Harvard Law School Professor Charles G. Ogletree, Jr., will speak as keynotes at the plenary breakfast session Oct. 17, while Janet Napolitano, president of the University of California and former Secretary of the U.S. Department of Homeland Security, is the keynote luncheon speaker that day. California Supreme Court Chief Justice Tani Cantil-Sakauye is among those speaking at a session on “Election, Selection, and Retention of Judges: Challenges to Judicial Independence” on Oct. 18.
More info here: http://www.cwl.org/wcnews/NewsArticleDisplay.aspx?articleid=67

Gov Selects Mariano-Florentino Cuellar for California Supreme Court!

FOR IMMEDIATE RELEASE: Tuesday, July 22, 2014



Governor Brown Selects Mariano-Florentino Cuéllar
for California Supreme Court

SACRAMENTO – Governor Edmund G. Brown Jr. today announced Mariano-Florentino Cuéllar as his choice for associate justice of the California Supreme Court.

So we'll have a Tino and and a Tani!
Cuéllar, 41, of Stanford, has been a Stanford Law School professor since 2001 and was appointed Stanley Morrison Professor of Law in 2012. He has taught administrative law, criminal law and international law, among other subjects. Cuéllar has been director of Stanford University's Freeman Spogli Institute for International Studies since 2013 and Professor of Political Science, by courtesy, at Stanford's School of Humanities and Sciences since 2010. He served as co-director of Stanford's Center for International Security and Cooperation from 2011 to 2013. 

“Tino Cuéllar is a renowned scholar who has served two presidents and made significant contributions to both political science and the law,” said Governor Brown. “His vast knowledge and even temperament will – without question – add further luster to our highest court.”

Cuéllar was born in Matamoros, Mexico and for a number of years walked across the border each day to attend school in neighboring Brownsville, Texas. At age 14, he moved with his family to the Imperial Valley of California, where he graduated from Calexico High School. Cuéllar went on to earn a Bachelor of Arts degree from Harvard College, a Juris Doctor degree from Yale Law School and a Doctor of Philosophy degree in political science from Stanford University.

Cuéllar served as special assistant to the President for Justice and Regulatory Policy at the White House Domestic Policy Council in 2009 and 2010 and was co-chair of the Obama-Biden Transition’s Immigration Policy Working Group in 2008 and 2009. He served as a law clerk to the Honorable Mary M. Schroeder at the U.S. Court of Appeals for the Ninth Circuit from 2000 to 2001 and as senior advisor to the Under Secretary for Enforcement at the U.S. Department of the Treasury from 1997 to 1999.

“I am enormously honored by Governor Brown's nomination, and if confirmed, I look forward to serving the people of California on our state's highest court,” said Cuéllar. 

Cuéllar co-chaired the National Equity and Excellence Commission, created by Congress to advise the Secretary of Education on how to close the achievement gap in American public schools, from 2011 to 2013. He serves as a presidential appointee to the Council of the Administrative Conference of the United States, an agency charged with improving the fairness and efficiency of federal administrative programs, and is a member of the Board of Directors for the Constitution Project, a national bipartisan organization devoted to advancing support for the U.S. Constitution. Cuéllar is a member of the American Law Institute Council and the American Constitution Society Board of Directors. Cuéllar is married to U.S. District Judge Lucy H. Koh of the Northern District of California. They have two children.

He will fill the vacancy created by the retirement of the Honorable Marvin R. Baxter on January 4, 2015. The compensation for this position is $225,342. Cuéllar is a Democrat.

The Governor’s nomination must be submitted to the State Bar’s Commission on Judicial Nominees Evaluation and confirmed by the Commission on Judicial Appointments. The Commission on Judicial Appointments consists of Chief Justice Tani Cantil-Sakauye, Attorney General Kamala D. Harris and senior presiding justice of the state Court of Appeal Joan Dempsey Klein. If confirmed by the Commission, the nominee will appear on the November 4th ballot for voter approval.

[7/23/14 Want more? The Recorder offers Stanford's Cuéllar Brings Policy Chops to High Court and the DJ has Governor's Supreme Court Appointments Help Infuse Youth onto the Bench AND Mexico native has strong academic credentials, no courtroom experience. Law360 has a different angle: Judge Lucy Koh's Husband Tapped for Calif. High Court. The MetNews offers Brown Taps Law Professor Cuéllar for High Court. And see in the California Bar eJournal: Governor names Latino Professor to high court.]

Friday, July 18, 2014

Justice Huffman profiled

Richard D. Huffman, Associate Justice
"Inside the hardworking, intelligent mind, there is a heart of gold" -- Chief Justice Cantil-Sakauye


Wednesday's DJ profiled 4/1's Justice Richard Huffman, who is "very sharp," "knows the record inside and out," and is "hardworking, highly intelligent and takes on a variety of projects with aplomb," including his role as chair of the Judicial Council's financial accountability and efficiency committee. He's a recipient of the Judicial Council's Ronald M. George Award for Judicial Excellence.
He recounts that a friend talked him into going to law school, so he enrolled in night classes at USC.  He then took a job with the AG's office because: "The going rate at the time for a lawyer on Wilshire Boulevard was $600 a month, and the attorney general's office offered me $750." He assisted with the prosecution of "famed crime boss Jimmy 'The Weasel' Fratianno."
An SDCBA "Legends of the Bar" video interview with him is here.

The article also quotes one SD County Deputy DA  describing him as "humorous" and "flinty" -- which sounds more like a fine Chablis.

[8/1 update: If you want to see Justice Huffman, one opportunity will be at the Association of Southern California Defense Counsel's San Diego Litigation Conference, Sept. 19-20, where he will be a panelist discussing the "Status of the San Diego Courts."]

From How Appealing today: Among the documents released today by the William J. Clinton Presidential Library & Museum: PDF files described as "Supreme Court Nominations (Ginsburg/Breyer)" and "Judge Sonia Sotomayor."

Thursday, July 17, 2014

It's official! We have some PJs and Justices...


SAN FRANCISCO—Chief Justice Tani G. Cantil-Sakauye, Chair of the Commission on Judicial Appointments, announced that the commission today confirmed the following appointments by Governor Edmund G. Brown, Jr. to the Court of Appeal, First Appellate District (San Francisco), and Second Appellate District (Los Angeles).
  • Associate Justice James M. Humes, Court of Appeal, First Appellate District as Presiding Justice (San Francisco). He fills the vacancy created by the retirement of Presiding Justice James J. Marchiano.

  • Ms. Therese M. Stewart, Chief Deputy Attorney at the San Francisco City Attorneys Office as Associate Justice of the Court of Appeal, First Appellate District, Division Two (San Francisco). She fills the vacancy created by the retirement of Associate Justice James R. Lambden.

  • Associate Justice Frances Rothschild, Court of Appeal, Second Appellate District, Division One as Presiding Justice of the Court of Appeal, Second Appellate District, Division (Los Angeles). She fills the vacancy created by the retirement of Presiding Justice Robert M. Mallano.

  • Judge Audrey B. Collins, U.S. District Court, Central District of California as Associate Justice of the Court of Appeal, Second Appellate District, Division Four (Los Angeles). She fills the vacancy created by the retirement of Associate Justice Steven Suzukawa.
The appointments were each approved by a unanimous vote at the public hearings held in the Supreme Court Courtroom in the Ronald M. George State Office Complex, Earl Warren Building, 350 McAllister Street, Fourth Floor, San Francisco.
===============
Also, yesterday the Governor appointed a bunch of superior court judges, including some with appellate backgrounds: Matthew Braner in San Diego was the "supervisor at the San Diego County Primary Public Defender’s Office, Writs and Appeals Unit since 2009" and Joshua Weinstein in Santa Clara "served as a judicial staff attorney at the First District Court of Appeal since 2008 ... Weinstein was a staff attorney at the Sixth District Appellate Program from 1994 to 1998, a training supervisor at the Washington Appellate Defender Association from 1990 to 1994 ...."
==================
In our "what do you call opposing counsel" department, rather than pejorative names, we offer this Wall St. Journal article about calling the other side "friend": Chief Turns High Court Into Friendliest Bar in Washington.