Bizarro: Egregious juror misconduct

Check out People v. Pizarro for an especially egregious (the court says "criminal") instance of juror misconduct:, in which naughty Juror No. 9 looked up a prior appellate opinion in the murder case that was being retried.

What would Client #9 have to say?

Certified Chutzph?

Imagine a defendant removing a case from state to federal court, and then asking the federal court of appeals to certify a question to the state supreme court. Further, imagine that the defendant's request for certification came only after an apparently lopsided oral argument where the panel appeared ready to rule against the defendant. Sound like gamesmanship? Think a court might be upset? Take a look at this reaction in a Ninth Circuit opinion published yesterday:

Hinojos v Kohl's Corp. No. 11-55793 (9th Cir. May 21, 2013):

We have long looked with disfavor upon motions to certify that are filed after the moving party has failed to avail itself of a prior opportunity to seek certification. [Citation] For example, in states that accept certification from federal district courts (unlike California), we have a held that there is a "presumption against certifying a question to a state supreme court after the federal district court has issued a decision" when the party that lost below did not mention the possibility of certification until after the district court entered summary judgment against it. Such requests for certification are generally inappropriate, we have held, because "[a] party should not be allowed 'a second chance at victory' through certification." [Ctitation] Here, Kohl's had an opportunity to suggest certification in its pre-argument brief or even at oral argument. It could have urged that, in the event that this court was not persuaded that California law clearly favored its position, the appropriate course of action would be certification to the California Supreme Court. Yet it chose at that point not to urge certification as an alternate course of action, presumably for tactical reasons—possibly because having prevailed below it greatly preferred to have the case decided by a federal court. Only after (correctly) perceiving at oral argument that we were not inclined to rule in its favor on the merits did Kohl's file its motion for certification. For reasons similar to those expressed in Thompson, we strongly disfavor a party that prevailed below requesting certification for the first time after it becomes apparent at oral argument that it is not likely to prevail in federal court.
Our court has also developed rules to ensure that a party may not manipulate the appellate system by seeking to avoid a panel it views as unlikely to accept its legal position. It is for that reason that we do not make panels public until the first working day of the week preceding oral argument and permit motions for continuances after the panel has been announced only "under exceptional circumstances." See General Order 3.5. Here, Kohl's urged certification for the first time only after it had the opportunity both to learn which members of this court would hear its appeal and to assess those judges' actual views of its case, based upon the concerns the judges expressed at oral argument. Having gained that knowledge, Kohl's sought to send this case back to state court whence it came, in light of its perception that the federal court was unlikely to rule in its favor. Kohl's conduct regarding certification violated both our rule against belated certification requests and our long-standing prohibition against a party's use of procedural motions to avoid having its appeal decided by a panel it perceives as unfavorable. Moreover, here Kohl's request would not only affect the operation of the federal court, but would unnecessarily embroil the Supreme Court of the State of California in Kohl's attempt to find a more favorable forum.
OR

As today's DJ reports it: "[Judge] Reinhardt blasted Kohl's for attempted forum-shopping by seeing to return the case to state court after it learned that it had drawn a liberal-leaning panel at oral argument by its claims."

 

A black eye for Kohl's? (pun intended)

2d District Pro tem updates (extensions through July)

The following are currently sitting on assignment:

• Judge Edward A. Ferns of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until July 31, 2013.
• Judge Brian M. Hoffstadt of the Los Angeles County Superior Court, will be sitting Pro-Tem in Division Six until June 30, 2013.
• Judge Brian M. Hoffstadt of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One for case B233542 .
• Judge Vincent J. O’Neill of the Ventura Superior Court, will be sitting Pro-Tem in Division Five until May 31, 2013.
• Judge Rex Heeseman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until July 31, 2013.
• Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until July 31, 2013.

Info about SDCBA's State of the Court address

Back in March the Appellate Court Committee of the San Diego County Bar Association presented its annual “State of the Court” address featuring the Honorable Judith McConnell, Presiding Justice of the California Court of Appeal, Fourth Appellate District, Division One (aka 4/1).  More info here.

Presiding Justice McConnell Addresses Current Issues at the State of the Court

By Valerie Garcia Hong

On March 27, 2013, the Appellate Court Committee (“ACC”) welcomed Presiding Justice, the Honorable Judith McConnell, for the annual State of the Court Address. Justice McConnell candidly discussed current issues facing the Fourth District Court of Appeal, Division One; answered questions from the appellate bar; and shared (and invited) stories about Steve Kelly, the long time clerk of the appellate court known for his genial presence and engaging stories, who passed away unexpectedly in February. As ACC Programs Chair Victoria Fuller noted in her introductory remarks, Justice McConnell celebrates her tenth anniversary as the Presiding Justice of the Fourth District Court of Appeal. The ACC was also honored to have Associate Justices Patricia Benke and Judith Haller in attendance.

            Tailoring her remarks to questions forwarded to her from attorneys by the ACC Chair, Justice McConnell candidly spoke at length about, among other issues, budget concerns, court administration, electronic briefing, courtroom decorum and civility, and judicial and research attorney preferences regarding accessing briefs and materials electronically. “It was wonderful to see how responsive Justice McConnell was to the appellate bar’s concerns and questions, and so interested in having a true dialogue, including about the court’s long serving Clerk of Court, Steve Kelly” said Rupa Singh, a staff attorney at the Ninth Circuit and current ACC Chair.

Budget Constraints and the Impact on the Court

           Although the state’s trial court system has suffered greatly as a result of the budget cuts, including mandatory furloughs and the lack of court reporters in civil matters, Justice McConnell noted that the appellate court was not as negatively impacted as the superior court. In part, this is because the appellate court experienced much larger cuts three years ago, and is still managing a heavy caseload even with only two writ attorneys and an overall 5% reduction in its work force.

            On the whole, the number of criminal and civil appeals has remained flat. Justice McConnell noted that there has been an 11% drop in dependency filings in the trial court, which has also reduced the amount of dependency appeals.  Despite this, Justice McConnell recognized that budget constraints have forced a lengthy delay in the court’s ability to handle non-priority civil cases. The court stopped handling non-priority civil cases a year ago to focus on criminal, dependency, and priority civil appeals. There are currently 95 fully-briefed, non-priority cases that have not yet been scheduled for oral argument, the oldest of which case was fully briefed a year ago. Justice McConnell expressed confidence that the court would continue to aggressively and successfully schedule these cases in the next several months, most likely after July.

Settled Statements

            Based on the lack of court reporters in civil matters in the trial courts, Justice McConnell addressed the need for attorneys to secure settled statements from the trial judge to complete the record on appeal.  She recognized that the process could be tedious, recalling from her days as a Municipal Court Judge the detailed notes that judges were required to take for such purposes, but said that it would be necessary if trial counsel did not, or could not, secure court reporters for motion hearings and trial proceedings in civil cases.

Electronic Briefing and Justices’ Preferences

            Although electronic briefing is not yet mandated by the court, as it is under a pilot program in the First District Court of Appeal, Justice McConnell reported that electronic briefing has been helpful for her colleagues, court staff, and research attorneys. Five justices on the Fourth District Court already read electronic briefs, and research attorneys especially like that they can cut and paste contract language or other such material from electronic briefs into draft memoranda or opinions. “I was surprised by the fact that the majority of Justices, I believe at least five, still do not read ebriefs,” said ACC member James Moneer. “I also thought that the time has come to take a how-to seminar on ebriefing!”

            For attorneys filing electronic briefs, Justice McConnell recommended a coherent timeline of the facts, with a greater emphasis on proper citation to authority and the record.  Because of the heavy caseload for the justices, Justice McConnell also noted that attorneys should condense the boiler-plate language, such as the standard of review, even more so because reviewing such materials electronically is even more cumbersome.

            Justice McConnell also recognized that the Merits Panel handles requests for judicial notices, and that attorneys face a quandary in citing to, relying on, or otherwise addressing material that has not been judicially noticed before briefing is complete. However, she explained that it may not be possible for a Merits Panel to evaluate a request for judicial notice before briefing clarifies the scope and issues on appeal. Thus, she recommended that attorneys explain to the court how the matters addressed in their pending request for judicial notice relate directly to the issues on appeal, and how the outcome of the request impacts their briefing.

Civility and Decorum in the Court

            Stressing that she has seen no decline in civility amongst appellate lawyers, Justice McConnell reported that the Court tends to see less civility most frequently among the self-represented. She also commented that there has been some concern about the decline in civility and decorum from trial attorneys who do not usually handle appeals, and are not used to the more formal atmosphere in a court of appeal. She noted that meeting with trial court judges to discuss professionalism among trial attorneys could help. While such issues as the use of contractions in briefs do not bother the justices, she reminded attorneys about maintaining an appropriate level of formality in the briefs and at oral argument, and noted that the justices do not hesitate to correct or reprimand obstreperous counsel where necessary. 

Administration of the Court

            Acknowledged that there are some justices who are entitled to retire, Justice McConnell said that no one has formally announced such an intention because the work is so interesting and rewarding, and declined to speculate on whether there would be any changes to the appellate bench. The court is, of course, hiring a Chief Clerk and Administrator to fill Mr. Kelly’s position, with the application deadline of April 8, and interview of eligible candidates by a panel that includes Justice McConnell.

            Justice McConnell discussed several changes to court administration over the last three years under California Supreme Court Chief Justice Tani Cantil-Sakauye, including the move of the Administrative Office of the Courts to Sacramento. She noted that the Chief Justice is actively working with the Legislature to address the budget constraints affecting the court system, and to remind congressional leaders that the budget cuts impact appellate courts, not just the trial courts. She recommended that attorneys, including the members of the ACC, continue to advocate to the State Bar regarding the impact of budget constraints on their cases.  

            Although California Supreme Court Associate Justice Goodwin Liu has said that he intends to hire short-term research attorneys to expose them to the appellate process (among other reasons), Justice McConnell advised that there was no plan to hire short-term research attorneys in the Fourth District Court of Appeal at this time. She noted that while some Supreme Court Justices, including former Associate Justice Carlos Moreno, also initiated a practice of hiring at least some short-term research attorneys, it did not necessarily continue because of the need for institutional knowledge and experience to complete the work, especially in light of the court’s heavy caseload. Justice McConnell indicated, however, that the court still offers unpaid externship opportunities to law students and attorneys who are interested in gaining appellate experience by working at the court. “Hearing Presiding Justice McConnell discuss the inner workings of the court--everything from who reads briefs on an iPad to how judicial notice requests are processed to hearing about how much the justices love their jobs--was enlightening and enjoyable,” said Julie Garland, a Senior Assistant AG at the California Attorney General’s Office.

            At the end of Justice McConnell’s remarks, many attendees shared touching stories about Mr. Kelly, reflecting his humor, charm, and professionalism, including in setting an exemplary tone for the relationship between the clerk’s office and the appellate bar. “Since I had to miss the Court’s special session, it was wonderful to come together with so many people who loved Steve Kelly as much as I did,” said Candace Carroll, an appellate specialist and senior partner at Sullivan Hill.

Future Events

            The ACC hosts its monthly meetings on the fourth Wednesday of the month at noon at the County Bar Center, 11^th Floor, and all are welcome. The ACC’s next CLE, titled “The Ins and Outs of Initiating an Appeal,” will feature Associate Justice Joan Irion and certified appellate specialists David Niddrie and Jon Williams on May 9, 2013 at noon at the Court of Appeal, Fourth District, Division One. For more details, please contact ACC Chair Rupa Singh (rupa_singh@ca9.uscourts.gov).

Valerie Garcia Hong is a trial and appellate lawyer at Pettit Kohn Ingrassia & Lutz PC, and the website coordinator for the ACC.

CSC names new CCS Director

Or, in English, the California Supreme Court has named a new Capital Central Staff Director: Congrats to Steven Rosenberg. Press release here.

Before becoming a lawyer, he served as ...
a law enforcement ranger for the National Park Service.

The Capital Central Staff was created in 2002 to assist the justices in the adjudication of death matters. The unit consists of the director and nine attorneys. They prepare memoranda and draft opinions addressing capital appeals, habeas corpus petitions, and related motions. In addition, they assist the automatic appeals unit of the clerk’s office with a variety of issues.
The court has two other central staffs composed primarily of career attorneys:
The Criminal Central Staff prepares conference memoranda addressing petitions for review and habeas corpus petitions in all criminal matters except capital cases.
The Civil Central Staff prepares conference memoranda addressing petitions for review in civil matters and attorney and judicial discipline matters.

No more video arguments in 4/3

Today's the day that 4/3 ends its video oral argument program. Most practitioners agree that oral argument by video isn't as effective as a live appearance anyway. Even so, no one likes to see notices like this: "Due to budget constraints, this division’s oral argument video conference program is suspended indefinitely effective May 15, 2013."

"Budget cuts killed the video stars."

9th Circuit Opinions Chart & More

Yesterday's Recorder has a fascinating article At Ninth Circuit, Moderates Do The Talking accompanied by a revealing chart ranking Ninth Circuit judges by majority opinions and providing related data. Do not miss this!

Yesterday's DJ featured an article by appellate specialist Robert Cooper titled Decision Obfuscates Statutory Writ Petition Filing Deadline, about writs under the California Public Records Act and MinCal Consumer Law Group v. Carlsbad Police Department (2013) 214 Cal.App.4th 259. This piece concludes: "Although Mincal involved a writ petition under the California Public Records Act, its potential implications reach far beyond that context by creating confusion for those seeking to challenge other rulings where no right to appeal exists (i.e., where a statutory writ is the exclusive method of obtaining appellate review). Unless the Supreme Court grants review, the Mincal decision will blur the jurisdictional lines where bright lines are absolutely critical."

Today's DJ has an article by appellate specialist David Wilson that begins: "Never before has the state Legislature chosen a standard of appellate review. Choosing the standard of review on appeal from a trial court decision has been the province of courts throughout the history of the common law. Assembly Bill 715, sponsored by the Consumer Attorneys of California, would break with that history by establishing that evidentiary decisions made at summary judgment would be subject to de novo review on appeal."

DJ's List of Top Women Lawyers includes Appellate Lawyers

The Daily Journal's insert on the Top Women Lawyers is out this week and several SoCal Appellate Lawyers made the list. Congratulations to Larua Brill, Margaret Grignon, and M.C. Sungaila

To Boldly Go...

Where no lawyer wants to be!
Yes, everyone in the blawgosphere galaxy has already written about Judge Otis Wright's Star Trek themed $80,000 sanctions order. Not wanting to be the last redshirt to beam up, we offer it too for your edification and amusement here. (Of course there's Ninth Circuit precedent for embedding entertainment puns in judicial decisions, as in U.S. v. Syufy Enterprises (9th Cir. 1990) 903 F.2d 659.)

Don't be green with envy! Try injecting Star Trek references into your own legal writing. Or not.

It's a matter of personal taste, but some things just don't mix well.

Also in the category of district court judges having way too much fun with decisions lately, see here.

Rule Changes to Supreme Court Practice

And by "Supreme Court," we mean SCOTUS.
SCOTUS Blog's Alan Morrison shares a summary here.

Congrats to New clerk Lane!

No, not the 2d District's Joseph Lane!
Kevin Lane, formerly the 4th District's assistant clerk/administrator has been appointed the new Clerk for the 4th District, effective July. See the press release here.

 
Obviously having the surname Lane is a big plus in SoCal...

Appellate tidbits

Last Thursday the DJ profiled 4/1's Justice Haller and also featured an article by Reed Smith's Appellate Practice Group leader Paul Fogel (and associate Maytak Chin) titled 9th Circuit Injects Confusion Into Collateral Order Jurisprudence. On Friday the DJ ran an article by Irell & Manella Appellate Practice Group leader Joseph Lipner (and associate BJ Ard) continuing their series on California Supreme Court civil law developments. (The article covers three case: Applle  v. Superior Court, about the Song-Beverly Credit Card Act and online sales; Bourhis v. Lord, about timely yet invalid notices of appeal; and RiverIsland, about the fraud exception to the parol evidence rule. Appellate nerds will pay the most attention to Bourhis.) Today, the DJ has pieces noting the retirement announcement of 2/1's Justice Lambden and about Retired Supreme Court Justice Moreno being considered for an ambassadorship (Wow! Can you Belize that?!).

And 2/6's PJ Gilbert has his column today too, which comes with the warning: "Reader discretion is advised." (It's about micturition, which may sound like a sentencing stage, but isn't -- though I suppose it could follow allocution.)

What the BAP is a BAP?

Do you recognize these names: Randall Dunn, Meredith Jury, Ralph Kirscher, Jim Pappas, and Laura Taylor? If so, then you're probably familiar with bankruptcy appeals to the Ninth Circuit's Bankruptcy Appellate Panel. Regardless of your background on BAP appeals, a great chance to brush up on the topic is around the corner: Attend LACBA's program on BAP Appeals on May 15 at the Ninth Circuit in Pasadena from 6 to 8 p.m.

Bankruptcy Appellate Tips & Practice
Judge Randall Dunn, BAP Chief Judge, District of Oregon
Judge Meredith Jury, BAP Chief Judge, Central District of California
Judge Ralph Kirscher, BAP Chief Judge, District of Montana
Judge Jim Pappas, BAP Chief Judge, District of Idaho
Judge Laura Taylor, BAP Chief Judge, South District of California

This is not the BAP we're talking about!
Who knew that K-Pop bands would feature so prominently on this blog!

Pro Tem Extension: another month in 2/5 for Judge O'Neill

Judge Vincent J. O’Neill of the Ventura Superior Court, will be sitting Pro-Tem in Division Five until May 31, 2013.

Logophiles rejoice, rejoice!

You will love, love, love Bryan Garner's latest column in the ABA Journal, For the Word Lovers: A look at linguistic phenomena.

Meet some new friends: anaptyxis, svarabhakti, apocope, aphaeresis, epizeuxis and many more!

New 8th Circuit website... "Itsa betta than the 9th's?"

Yesterday the 8th Circuit launched a new website. Take a look and see how it compares to the 9th Circuit's...

"The Eighth Circuit is pleased to debut it's a new web page, built in cooperation with the Administrative Office of the United States Courts as part of a judiciary-wide effort to improve on-line access for attorneys, litigants, educators and the general public. All of the information you are used to seeing on our website is still available, including access to electronic filing, oral argument recordings, forms, rules, court calendars and opinion summaries. Additionally, we have added information for pro se filers and educators. Please feel free to browse the site, and let us have your comments and suggestions."

Hey, whatsa matter witha the new webpage? How Appealing notes that the site has been taken down for more proofreading!

What's your headgear in court?

Today's Wall Street Journal has a story about how solicitors in Hong Kong really want to be able to wear wigs like barristers: Wigged Out: Hong Kong's Lawyers Bristle Over Horsehair Headpieces --- Holdover From British Rule Causes Legal Split; 'It's Magical'

The article quotes a barrister who says, "When I wear my wig, I know something big is going to happen .... It makes me feel like I have more responsibility. I think I exude more energy than without it. It's magical."

No wig for you!

You're wrong and you're outta here!

In the Rodney Dangerfield department, today's DJ has an article titled Reassignments Rare on Reversal, Considered a Stinging Rebuke by Judges about what it means when the Ninth Circuit not only reverses a district judge, but also then orders the case reassigned to a new judge. As the DJ puts it: "Ouch."
The article notes that "many judges never experience the embarrassment of reassignment, some get reassigned with regularity," noting that Central District Judges Real and Wright together have had six reassignments in the past 18 months.

You want a second opinion? Ok, you're wrong and you're off the case!

What are the factors for reassignment: whether the judge would have difficulty putting his or her expressed views or findings found to be erroneous out of his or her mind; whether assignment is advisable to preserve the appearance of justice; and whether reassignment would be a waste of judicial resources or out of proportion to any benefit.

Once again, You Are Invited...

You are cordially invited to comment on proposed changes to the Ninth Circuit's rules here, primarily regarding electronic filing. Email your comments to the court by May 20.

APJ Gilbert aka The Plaintiff

Today's Law360 has an article titled Justice Blasts Calif. Ban on Judges Taking Public Jobs -- which might lead you to think that it reports on something a justice said in court from the bench last Friday. But actually this is about 2/6's APJ Gilbert's speaking out in court -- as the plaintiff in his own lawsuit Gilbert v. Controller of the State of California (LASC BC487949). (The DJ also has an article about it today captioned Retired Judges Should be Able to Take other Government Jobs, Appellate Justice Testifies.) What's this all about? Well, Justice Gilbert says that he may want to retire before the end of his present term in 2019. But there is a state Constitutional provision (sometimes called the anti-moonlighting provision) that apparently prevents judges from taking a state job during their terms of office -- even if the judge has left that office!
Stay tuned....