Friday, February 27, 2015

2014 Judicial Appointment Data

Governor Brown Releases
2014 Judicial Appointment Data

SACRAMENTO – Governor Edmund G. Brown Jr. today released annual applicant and appointee data for the administration’s judicial appointments.

From 2011 through 2014, there were 1,574 applicants for judicial appointments and Governor Brown appointed 237 judges, including 76 in 2014. Approximately 46% of Governor Brown’s appointees in 2014 identified their ethnicity as American Indian or Alaska Native; Asian; Black or African-American; Hispanic; Native Hawaiian or other Pacific Islander; or other/unknown.

Governor Brown also nominated two new Justices to the California Supreme Court in 2014: Justice Mariano-Florentino Cuéllar in July and Justice Leondra R. Kruger in November. Both Justices were sworn in by Governor Brown earlier this year.

From 2011 through 2014, Governor Brown’s judicial appointees included a number of notable firsts:

·         Therese M. Stewart, the first openly lesbian justice to serve on the California Court of Appeal; and
·         Ferdinand P. Inumerable, the first Asian-American judge ever appointed to the Ventura County Superior Court.
·         Paul Lo, the first Hmong American judge ever appointed in the country;
·         Sunshine Sykes, the first Native American judge ever appointed to the Riverside County Superior Court;
·         Sunil Kulkarni, the first South Asian American judge ever appointed in Northern California;
·         Rupa Goswami, the first South Asian American woman judge ever appointed in California.
·         Halim Dhanidina, the first American-Muslim judge ever appointed in California;
·         Jim Humes, the first openly gay justice ever appointed to the California Court of Appeal;
·         Miguel Marquez, the first Latino justice ever appointed to the Sixth District Court of Appeal;
·         Rosendo Peña, the first Latino justice ever appointed to the Fifth District Court of Appeal;
·         Chris Doehle, the first female judge ever appointed to the Del Norte County Superior Court;
·         Kimberly Colwell, the first openly lesbian judge ever appointed to the Alameda County Superior Court; 
·         Mark Andrew Talamantes, the first Latino judge ever appointed to the Marin County Superior Court;
·         Kathleen O’Leary, the first female presiding justice ever appointed to the Fourth District Court of Appeal, Division Three; and
·         Raquel Marquez, the first Latina judge ever appointed to the Riverside County Superior Court.

Under SB 56 and SB 182, the Governor is required to disclose aggregate statewide demographic data provided by all judicial applicants by March 1.

Potter apparates to San Jose quickly

Image result for la to san jose

Today's MetNews has Dan Potter Named Clerk of Sixth District Court of Appeal, noting "longtime assistant clerk/administrator of the Second District Court of Appeal, is leaving that post next week to become clerk/administrator of the Sixth District Court of Appeal" starting March 16. His last day at the 2d District will be next week, so be sure to drop by and wish him well.
Potter has been Lane’s top assistant for 22 years, and leaving the court for the top job in San Jose “is certainly bittersweet,” he said. “Not only am I leaving friends and colleagues, but the justices of this court, who are very dear to me.”
The Sixth District is the smallest of California’s appellate courts, with seven justices—the Second District has 32—and about 45 employees, compared with 250 at his present court. 

Beds: "Viewpoint: Airbags in His Underpants"

Image result for bells and whistlesYep, that sounds like a Beds' column (click here); except that it's not really about what you might think at all; it's far more serious, it's about -- oh, wait, wow, have you seen these dancing kittens? And ten ways celebrities lose weight? And how to re-fi via an offshore Hong Kong holding company? It could save you big time on your mortgage! Uh, what were we just talking about??

William W. Bedsworth, Associate Justice
We are evolving past reading. We are so spoiled by visuals and sound bites and electronic ephemera that we are losing the patience it takes to read things. Unless somebody promises us sex or novelty or some kind of endorphinal gusher, we aren't willing to devote the time to reading it.

Thursday, February 26, 2015

Fed Civ Pro on the Bar! Does that make for better lawyers?

Prof. Ben Bratman (Univ. Pittsburgh School of Law) has a piece in today's Wall Street Journal, Reforming the Bar Exam to Produce Better Lawyers, noting that:
This week, thousands of aspiring lawyers -- most of them recent law-school graduates -- are undergoing at least 12 hours of testing in an effort to pass a bar exam and qualify for a law license. But this year's bar exam is unlike any before it. Effective with this week's test, the Multistate Bar Exam, a grueling six-hour, 200-question multiple-choice test that is part of the bar exam in almost every state, becomes even more arduous. It will now test an additional field of law: federal civil procedure, the seventh subject covered on the exam.
The addition will require MBE examinees to memorize even more content, in the form of numerous rules and case precedents. Does that help those examinees become better lawyers? Does it help the legal profession? Does it help the clients and the public that lawyers serve? No. 
Image result for no street smarts****
Knowledge of law is not unimportant. But bar examinations are not the only or even the best means to ensure that newly admitted attorneys are familiar with a certain field of law. As a condition of licensure, a state could instead require that new members of the bar take a course on, for example, unique attributes of that state's law. The Missouri Board of Law Examiners has recently adopted this approach. 
The bar exam needs reform, but not the latest kind, which simply adds another subject students must cram into their brains. What it needs is a more sensible balance between testing that primarily requires memorization and testing that requires performance of lawyering skills. That is the reform that will benefit examinees, the legal profession and the public.

Pick a judge, any judge...

Image result for deck of card with five aces 

Aaron Bayer's latest National Law Journal article (Feb. 23, at pg. 10) is How Fair Are Appellate Panel Selections? Same-sex marriage challenge highlights array of factors courts take into account when assigning cases.

Questions about panel selection are not new. The most famous involved the panel-packing efforts of the U.S. Court of Appeals for the Fifth Circuit during the civil rights era. Scholars have shown that the circuit's chief judge in the 1960s, Elbert Tuttle, manipulated the assignment of appeals both to appellate ­panels and to three-judge district courts so that at least two liberal judges were on each panel. This was done in an effort to ensure implementation of the U.S. Supreme Court's desegregation rulings. More recently, scholars have undertaken statistical analyses of whether the panel selection process in the federal circuits is truly random.
The Ninth Circuit's "General Orders," which detail its operating procedures, reveal just how complicated it is to assign judges to panels in a way that is random but also takes into account the logistics of running a court of that size and geographic scope. The clerk's office uses a computer program to try to equalize the load among the judges, but it considers an array of other factors. 
The clerk tries to, among other things, ensure that each active judge sits the required number of days each year; schedule each active judge to sit with every other judge on the circuit about the same number of times over a two-year period; make equal assignments of all active judges to sit in each of the main geographic locations in the circuit; and replace a panel member who is disqualified or recused or who has fallen behind in producing opinions. The clerk's office then selects equally weighted "clusters" of cases for each panel, "without regard to which judges are sitting on the panels." 
Given everything the circuit tries to take into account, it is difficult to imagine that the process could be truly random, but it is equally difficult to conclude that it could be manipulated to assign cases to a panel that has a predisposition toward a particular outcome.

Wednesday, February 25, 2015

"The Perils of Nonprecedential Opinions"

Image result for perils of paulineToday's DJ features a piece by Valparaiso's Professor David Cleveland, an outspoken critic of unpublished appellate decisions. Why?
  • This practice [i.e., issuing unpublished, nonprecedential opinions] is harmful to appellate justice. First, deliberately declining to create precedent creates fewer precedents, which means less definite law. With each new decision, the law is broadened, narrowed or simply reaffirmed.
  • Second, treating some decisions as nonprecedential creates the potential for conflicting published and unpublished opinions. Unpublished opinions allow a court to decide cases differently, even antithetically, without needing to acknowledge or explain the discrepancy. 
  • Third, issuing some decisions as nonprecedential increases the likelihood of intra-circuit conflict. 
  • Fourth, declaring some opinions nonprecedential hides inter-circuit splits and allows some issues to evade Supreme Court review.  
  • Fifth, creating an opinion that no one can rely on is an invitation to poor reasoning or even strategic, result-based reasoning.
  • Finally, the system harms the public perception of the court. It makes no sense to the lay public that a court can make a decision today and not be required to follow, distinguish or overrule it in deciding tomorrow's case. Nor should it. 
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HaHaHaHa! You can't cite the decision I'm holding!
 He concludes: "The practice of issuing nonprecedential opinions should end it because it is contrary to the common law system and harmful to appellate justice."
"The problem is not that there are too many precedents, but that there are too few."