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. 
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:

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.]

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.

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.

Wednesday, July 9, 2014

The Future starts now...

A Judicial Council Press Release explains: "Chief Justice Tani G. Cantil-Sakauye announced today the creation of the Commission on the Future of California’s Court System to study and make recommendations to improve the state’s court operations and accessibility. In the next two years, the commission will examine ways to increase the efficiency of adjudicating cases in civil, criminal, traffic, juvenile, and family law matters, as well as ways to enhance the underfunded court system’s fiscal stability."
See Chief Justice Creates Commission on Future of the Courts.
Justice Corrigan will head the commission, with the 1st District's APJ McGuiness as vice-chair.
"Other members of the executive committee include: Justice James Humes and Justice Peter Siggins of the First Appellate District, Justice Steven Perren of the Second Appellate District, Justice Louis Mauro of the Third Appellate District, Justice Judith Haller, Justice Douglas P. Miller, and Justice Kathleen O’Leary of the Fourth Appellate District, Justice Charles Poochigian of the Fifth Appellate District, Justice Patricia Manoukian of the Sixth Appellate District, Judge Stacy Boulware-Eurie and Judge Emily Vasquez from the Sacramento Superior Court, Los Angeles Superior Court Judge Carolyn Kuhl, Santa Clara Superior Court Judge Patricia Lucas, San Bernardino Superior Court Judge Marsha Slough, Monterey Superior Court Judge Carrie Panetta, retired Placer Superior Court Judge Richard Couzens, Santa Clara Superior Court Executive Officer David Yamasaki, Placer Superior Court Executive Jake Chatters, and Fifth Appellate District Clerk/Administrator Charlene Ynson. Former State Bar President Patrick Kelly has been named as a special liaison to the executive committee. Lead administrative support will be provided by Jody Patel, Chief of Staff for the Judicial Council." (SoCal names bolded.)

[7/10/14 See in today's Recorder: Rebuffed on Funding, Chief Justice Moves Forward on Commission]

Tuesday, July 8, 2014

LA FBA appellate programs

The Los Angeles Chapter of the Federal Bar Association has the following appellate offerings for October.

October 2, 2014 - 12:00 p.m. - 1:30 p.m. (Registration at 11:30 a.m.)
Location: The Biltmore Hotel (506 S. Grand Ave., Los Angeles, CA)
Featuring UCI Law School Dean Erwin Chemerinsky.
Also Featuring Annual Judge Barry Russell Scholarship Awards.
Registration flyer or Register online

October 23, 2014 - 1:30 PM (Registration at 1:00 PM)
Location: Richard H. Chambers U.S. Court of Appeals Building (125 S. Grand Avenue Pasadena 91105)
Featuring panels of experienced appellate advocates and Ninth Circuit judges discussing strategies for effective appellate advocacy, and representatives from the Ninth Circuit Clerk's Office with tips for litigating in the Ninth Circuit. There will be a reception following the event for all participants and judges.
Registration flyer or Register online

Shades of Gray: To Err in Jury Selection

Today's DJ offers Shades of Gray: To Err in Jury Selection, blurbed as follows: "Not all errors at trial require a retrial. The state Supreme Court is in the midst of deciding which and which do no when the error involves jury selection." The author? None other than Brian M. Hoffstadt, identified as "a judge of the Los Angeles County Superior Court" -- at least for a little while longer... (The Gray is Gray v. Mississippi, not Christian Grey.)
Also in the DJ today: Appellate Court Appointee Therese Stewart Named in Whistleblower Claim. Oddly, the article mentions someone named Rothschild, but not the one we're thinking of as the new 2/1 PJ. The Recorder's story, which doesn't mention Stewart, on this claim appears here.

Monday, July 7, 2014

"A Storm of Ideas"

That's the title of today's DJ column by PJ Gilbert, that discuss CCP 170.6, among other topics.
(Game of Thrones is not one of those topics, but who could resist?)
Also in today's DJ of appellate interest: Supreme Court Chose to Bunt this Term and On Criminal Law, US Supreme Court is Sometimes Left of California High Court.

Thursday, July 3, 2014

Beds & Tech don't mix

Technopeasant Justice Bedsworth cogently (and amusingly, of course) expresses the frustrations that many of us have with today's technological advancements in his latest column here.
Think you can escape technology? Think again; and read Tomorrow's Lawyers. (See Why Tomorrow's Lawyers is Required Reading.)
ALSO: See today's MetNews for Confirmation Hearings Set for Four C.A. Nominees

Looking for something patriotic to enjoy? Check out What Does Independence Mean to You, presented by the Third Branch News here.

Wednesday, July 2, 2014

Judicial Branch Distinguished Service Awards

Justice Tricia A. BigelowToday's MetNews reports that 2/8's PJ Tricia Bigelow "will receive the Ronald M. George Award for Judicial Excellence. The award is given annually for “extraordinary dedication to the highest principles of the administration of justice statewide."
Justice Carol Corrigan and 1/5's Justice Mark Simons won the Excellence in Judicial Education Award.
Details here.

2013 Distinguished Service Awards
Here's what the actual awards have looked like...
which brings this classic image to mind.

Tuesday, July 1, 2014

Justice Scalia to speak at Bar Convention San Diego

Looking for appellate reasons to attend the State Bar Annual Meeting in San Diego this September? Any one of the following should do the trick:

  • Scalia to speak at State Bar’s Annual Meeting Sept. 11-14. (This is a rare treat! The last and only other time a Supreme Court Justice appeared at the State Bar Convention was in 2010, when Justice Kennedy gave the keynote address.)
  • Justice Kennard to be honored at the California Women Lawyers Association Annual Dinner
  • Hey, let's put on a show!
    The Chief is always there, doing Chiefly things (like swearing in new bar leaders), and she'll also be joined by Justices Baxter, Chin, Corrigan and Liu in presenting a dramatization of The Life of Chief Justice David S. Terry and Federalism: A Life and Doctrine in Three Acts.
  • The State Bar Committee on Appellate Courts (CAC) will be presenting five programs (helping you collect appellate specialization MCLE credits):
    • Ethical Issues in Appellate Practice
    • Everything But the Brief on the Merits: A Behind the Scenes Look at Appellate Practice
    • Forfeiture: A Four-Letter Word in the Court of Appeal
    • Probate Law Appeals: Tips, Tricks & Strategies
    • From Bench to Bar: Former Appellate Justices Discuss Appellate Practice 

King of the Hill / Steve Jahr / Barry Bonds

Today's DJ profiles the 5th District's PJ, Brad Hill, described as a "prominent figure in the statewide administration of the judiciary" based on his many years on the Judicial Council. Other adjectives include gracious, efficient, creative, thorough, direct, thoughtful. He is quoted: "what's really important is the law. ...[If] you start getting in to personalities or preparation or how it was presented, it maybe diverts attention from who wins, who loses, here's why and here's the law."

"a play-by-the-rules centrist who has a reputation as a calming presence when emotions run high"
Also mentioned in the profile.

And, making it an appellate double-header today for the DJ's Emily Green, see also: New State Appellate Appointees Include Federal Judge, Same-Sex Marriage Advocate. At the Recorder, see Stewart Tapped for First District.

Apart from losing its name, the AOC is about to lose its head: Administrative Director Steven Jahr Announces Retirement.

Hey baseball fans, the 9th Circuit has granted en banc review in the Barry Bonds case (here).

Monday, June 30, 2014

4/3 Gets Biblical

Here's a nice line in an unpub today (here) from 4/3's Justice Ikola:
On appeal plaintiffs contend a “flood” cannot be caused simply by excess rainfall, but only by an existing body of water exceeding its bounds and inundating the surrounding area with water. That would be news to Noah. (Genesis 7:17.) We hold the plain meaning of “flood” includes deluges caused by excess rainfall, which is what happened here. Because plaintiffs’ claim was properly denied based on the “flood” exclusion, we do not reach the “surface water” exclusion.

Also, today's pretty much "frivolous" appeal (remanded for a monetary award) is here.

[7/2/14 update: Even Law360 gets in on the act with Referring To Bible, Court Sides With State Farm On 'Flood' -- A California appeals court on Monday upheld State Farm General Insurance Co.'s win in a coverage dispute over the application of a flood exclusion, alluding to the Bible while rejecting the plaintiff's narrow interpretation of the word “flood.”]