Supreme Court Releases Report on Leak of Bar Exam Topics

The Supreme Court of California on Wednesday released a final report from its investigation into the disclosure of the exam topics for the July 2019 bar exam. The court hired retired Presiding Justice Arthur G. Scotland and his law firm of Nielsen Merksamer to spearhead the investigation, the costs of which will be paid for by the State Bar. Among the findings in the 19-page report:

• The pre-exam disclosure of topics was an "inadvertent human error."
• The State Bar's leadership decided to disclose the topics to all exam participants without involving the Supreme Court in its decision-making process.
   
• The State Bar has implemented procedures and will provide training to prevent future breaches of the confidentiality of documents related to the bar exam.
   
• The State Bar should develop procedural protocols for making key decisions in an emergency.

View the full report here.

In this week's Law360 Judging A Book column (where judges draft book reviews),  Judge McKeown Reviews 'Conversations with RBG'

• Justice Ginsburg speaks extensively about her judicial philosophy, which she defines as an originalism born of the notion that “we are constantly forming a more perfect union, as the Founders intended.”

And here's something unusual: a dissental with 10 recused 9th Cir. judges.

Gov's Appointment Philosophy

The Recorder has What Newsom's First Judicial Picks Reveal About His Appointment Philosophy

• Newsom said he and his judicial appointments secretary, former state appellate justice Martin Jenkins, would be looking for diversity—of race, ethnicity, gender and career backgrounds. Jenkins has said publicly he wants candidates with “humility.”
• conversations with two of Newsom’s first judicial appointees—as well as a review of the resumes of nine others—offer some hints as to how Newsom, the son of a former judge, may operate as he fills approximately four dozen vacancies, including two open spots in the appellate courts.

In other news, this case here and this book are not related, but are both worth the read...

Veterans Day

Honor and thank the veterans you know today! (Courts are closed today, of course. Gov's proclamation here.)

Today's DJ features veteran Justice Eileen Moore in Veterans who were civil rights heroes, which concludes: "Veterans of the United States Armed Forces helped in securing civil rights for all Americans. They believed in our country, knowing what it was capable of achieving. All of us should realize that if something important needs to be done, we probably can't go wrong if we ask a veteran to do it. Veterans deserve our tribute."

Speaking of veteran Justices, today's DJ also profiles Judge Jason Chin -- son of veteran Justice Ming Ching -- a relationship that's "not something [he] really advertise[s]." (See Work-Life Balance: Judge Jason Chin learned from his father not to discuss legal cases during family dinner.)

Chin said he’s perpetuating his father’s tradition of not talking about work when spending time together, so they don’t speak much about their jobs. But he’s open about what he’s learned from his father.
“The things I respect the most about him are his thoughtfulness, his patience, his willingness and eagerness to get to know as much about the subject that’s in front of him as possible to make the best-informed decision,” Chin explained.

At the Lectern has compiled a list of appellate-justice-veterans here.

2d DCA hosts ACE program

Court of Appeal to Hold Education Program for High School Students -- Second Appellate District in Los Angeles to host high schoolers for oral argument on November 12. Learn about ACE here.

In practice-related news: The Death Knell tolls only once... see here.

"Monstrosity of an appellate brief"

A little late for Halloween, but: 7th Circ. Calls Appeal Bid In Mars Bias Suit A 'Monstrosity'

• The Seventh Circuit on Thursday refused to revive a former Mars warehouse worker's discrimination suit, saying her appeal was a "shameful waste of judicial resources" and demanding her attorney explain why he shouldn't be sanctioned. ... The three-judge panel said in its opinion that [Plaintiff's] appeal ... was 'utterly frivolous,' and that her 'monstrosity of an appellate brief' ["86 interminable pages"] was 'incoherent.'"
• "The hopelessness of [Plaintiff's] cause didn't deter her lawyer ... from signing and submitting a bizarre appellate brief laden with assertions that have no basis in the record and arguments that have no basis in the law."
• Fn.5: "The term 'brief'—derived from the Latin brevis, meaning short—seems inapt here. ... The brief is also a typographical nightmare. It uses five different fonts and various font sizes, including three different fonts in one sentence, and capitalizes words seemingly at random.
• "Bad writing does not normally warrant sanctions, but we draw the line at gibberish."

Justice Wiley's voice

Justice Wiley has emerged as a distinctive voice on the Court of Appeal. Readers could spot his fingerprints in this published opinion today by the short, simple, and direct sentences like "First is background. ... The fight was about retention. ... That is the main dispute." And "This is not a case like that." Another giveaway was this paragraph:

Felix Frankfurter reputedly said the three rules of statutory interpretation are to read the statute, read the statute, and read the statute. The same wise counsel applies to interpreting every text. So we read read read the contract, which we now describe.

This style of opinion writing seems effective and possibly helpful to parties (as opposed to lawyers).

9th Cir. news & Taking it to 11

Today's DJ has With Confirmation, 9th Circuit Is Fully Staffed and Less Partisan

• Assent of 73 senators confirmed Danielle Hunsaker as the 9th U.S. Circuit Court of Appeals’ newest judge Wednesday, placing the westernmost federal circuit at full strength for the first time in four years and at its closest partisan balance in over two decades.
• Hunsaker’s ascent to a Portland seat enlarges to 13 the Republican-appointed cohort on a court with 29 active postings. The last time GOP-named judges verged as nearly on a circuit majority was 1996 before 21 successful selections by Presidents Bill Clinton and Barack Obama — against seven George W. Bush appointments — bolstered a Democratic complement the circuit first became been known for when Jimmy Carter filled 10 expansion judgeships.
• Two other 9th Circuit nominees — San Diego prosecutor Patrick Bumatay and Department of Justice attorney Lawrence VanDyke — are slated for upcoming vacancies and await Judiciary Committee votes.

[Law360 has Trump Touts Record on Judges As Senate OKs 9th Circ. Pick, noting "Trump appointees now account for 1 in 4 active U.S. circuit judges."]
[Law.com has 'This Is Not Normal': US Judge Denounces Trump's Attacks on Judiciary]

And UC Irvine Law Students Win 9th Circuit Immigration Appeal -- The opinion published last week, granting the Salvadoran appellant’s request for review of her rejected appeal to the Board of Immigration Appeals, was the result of efforts by students of UC Irvine School of Law’s appellate litigation clinic. Celia Diaz Martinez v. William P. Barr, 17-72186 (9th Cir. Oct. 30, 2019).

Moreover, Spinal Tap wins right to rock, though litigation rolls on -- Cast and crew members of the 1984 mockumentary about a fictional heavy metal band who sued for rights to the 1984 cult classic announced the settlement of claims against defendant Universal Music Group Inc. in a statement Tuesday.

New 9th Circuit Judge Confirmed!

Oregon Judge Gets Senate Confirmation for Ninth Circuit Seat

Danielle Hunsaker, who clerked for Judge Diarmuid O’Scannlain, the judge whose seat she will fill on the Ninth Circuit, was confirmed in a 73-17 vote by the U.S. Senate

Ninth Circuit News Release here.

Another Roundup & 2/6 Closed for Fire Weather!

• Today's DJ has part 2 of Justice Menetrez's series Canizales and the Kill Zone
• The DJ's Exceptionally Appealing column this month is And That's Final! about exceptions to the finality rules.
• The DJ also has Adam Hofmann of Hanson Bridgett in Home Field Advantage: Making the Most of Your Reply about appellate reply briefs. (Of course this year's world series featured a home field disadvantage!)
• The 2d DCA's Calendar has been updated here to show dates through the end of this year and then through 2020.
• Due to the elevated risk of wildfires, electrical power services to Division Six in Ventura have been shutoff and the courthouse is closed. The loss of power may continue throughout the duration of the fire weather event. For case information you may contact the Los Angeles office of the Second District Court of Appeal at (213) 830-7000.

Groban to headline Institute for Corporate Counsel event

Register now for the 2019 Institute for Corporate Counsel. You won't want to miss Justice Joshua Groban on December 4 at the California Club in DTLA.

Also, save the date of April 22, 2020, to attend the LA Law Library Beacon of Justice Award Gala honoring Administrative Presiding Justice Elwood Lui!

LACBA's Appellate Courts Section November 19 program is Everything Except the Briefs (And the Oral Argument): 
Join us for a discussion on those parts of an appeal that aren’t the briefs or the oral argument:  The brass tacks of navigating the notice of appeal and record designation process at the Civil Appeals Unit of the Los Angeles County Superior Court, and appellate motions practice in the Second District Court of Appeal.  Featuring Dana Adelstein and Dinh Ha (Research Attorneys at the Second District Court of Appeal), and Kathie O’Connell (Director of Courtroom Support for the Los Angeles Superior Court). Panelists:
Dana Adelstein, Appellate Court Attorney, Second District Court of Appeal, Division ThreeDinh Ha, Appellate Court Attorney, Second District Court of Appeal, Division EightKathie O’Connell, Director of Courtroom Support, Los Angeles County Superior CourtModerator: Jonathan H. Eisenman, Deputy City Attorney, City of Los Angeles

DJ profiles Dana Curtis

Today's DJ ADR profile is Healer: Lawyers value mediator Dana Curtis' Zen approach to dispute settlement. Dana is well known in appellate circles both for her background, work, and MCLE programs. She clerked for "Justice Edward A. Panelli on the state Supreme Court. Among Pinelli’s other clerks was Louis R. Mauro, now a justice on the 3rd District Court of Appeal. Pinelli’s senior staff attorney was Kathryn M. Werdegar, whom Curtis called “my writing coach and mentor.” She also had a four-year stint as a mediator with the 9th Circuit.

Congrats to UWLA Law Moot Court Team

A team of University of West Los Angeles law students has won the Best (Petitioner's) Brief award at the annual National Criminal Procedure Moot Court Competition, held November 1-2 at the University of San Diego School of Law.

Third-year students Natalie Hairabedian and Edgar Portillo represented UWLA in this prestigious national tournament, which featured 40 teams from all regions of the country. The great majority of the participating schools in the competition are large ABA institutions. Both UWLA students, unlike most of their competitors, are working while attending law school.

In addition to winning the prestigious written portion of the contest, Hairabedian and Portillo advanced to the quarter-finals of the oral advocacy portion of the event, finishing in the top 8 of the 40 competing teams in that category.

Both students earlier completed Adjunct Professor David Glassman's Appellate Advocacy class. This is the second time Professor Glassman's students have won a Best Brief award in this competition. His former students have also reached the final round of the oral advocacy portion of the tournament. Professor Glassman commends these students for their outstanding achievement and appreciates the faculty members and moot court alumni (Adjunct Professors Miriam Billington and Sam Ekizian and alums Christopher Davis and Kristen Gozawa) who volunteered to assist this year's team during preparations for oral argument.

DJ Catchup

On Halloween, 4/2's Justice Menetrez published part 1 of What is a kill zone?

Today, PJ Gilbert's Under Submission column is WARE R U? about semicolons and much else. "Moskovitz on Appeals" is about parenting. Having lost any connection to appellate topics, be sure to check out Frank Wu's Lawyer and Law Students: Your LSAT score does not define you.

2d DCA pro tem update

The following are currently sitting on assignment:

·  Judge Gregory J. Weingart of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until December 31, 2019

·  Judge Mark K. Hanasono of the Los Angeles Superior Court, will be sitting Pro‑Tem in Division Three until November 30, 2019

·  Judge Ann I. Jones of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until December 31, 2019

·  Judge Kim Garlin Dunning (Retired) of the Orange County Superior Court, will be sitting Pro-Tem in Division Four until completion of all assigned matters.

·  Judge Natalie P. Stone of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until November 30, 2019

9th Circuit nominee hearings

The Recorder/Law.com have articles about today's 9th Circuit nominee hearings here and here.

Republicans on the committee criticized the American Bar Association’s “not qualified” rating of former Nevada Solicitor General Lawrence VanDyke issued the night before the hearing, with some calling on the White House to cut off the organization’s access to candidates claiming bias against conservative candidates. Democrats, meanwhile, noted that home state senators had not returned blue slips indicating their approval of VanDyke’s nomination nor that of Southern California federal prosecutor Patrick Bumatay, the other nominee under consideration Wednesday morning.

Of note in today's DJ, Justice Raphael has The Whole Truth, and interesting exploration of the oath we all know and love (Code Civ. Proc., section 2094(a)(2)). Also of appellate note The Debate of Dynamex's Retroactivity Head to the California Supreme Court and Ethics at the California Coastal Commission.

Regarding that last article, don't miss the published case here, which notes in the intro: "And we publish, to also affirm—and remind the profession of—the importance of candor toward the court."

Failure!

Some odds and ends of note, all thematically linked by "failure":

• LA's Turbulent Law School Market Could Take Another Hit
• 30 Years of Law Firm Collapses: An Annotated Timeline
• Today's DJ has California's Constitution Needs Some Changes, by Stephen Duvernay and Brandon Stracener, about provisions in the state constitution that have been mooted and "serve little purpose other than as a reminder of past errors." They urge the Legislature to "place a measure on the ballot to remove these provisions."
• And this unpub from 2/8, which closes its intro like this:

"We affirm the judgment, principally because plaintiff’s briefs give a one-sided, incomplete and inaccurate presentation of the evidence presented at the hearing. An appellant forfeits the right to appellate review by misleading the Court of Appeal in this way."

Seeking appellate counsel doesn't toll statute

Here's a unpub'd case from 1/5, in which the first paragraph spells it all out:

In this legal malpractice action, [Plaintiff/Appellant] contends that the trial court erred by granting summary judgment in favor of his former attorney, [Defendant]. The court held that [Plaintiff]’s suit is barred by the statute of limitations. The sole issue here is whether, after unequivocally telling [][Plaintiff] that he would not represent him further, [Defendant]’s efforts to help him find an appellate attorney tolled the limitations period. We hold they did not, and we therefore affirm.

Also of interest, Cory Webster points out this published opinion from 1/1 on Friday which has the following footnote 2:

• Before oral argument, we issued a tentative opinion that is substantively identical to the final version. (See Ct. App., First Dist., Local Rules of Ct., rule 15(b).) In response, [Respondent]  stated that it was “willing[] to accept the Court’s disposition for this matter.”

And see this unpub from 2/1 today, which begins nicely with:

Legal jurisprudence is riddled with distinctions between substance and procedure. Sometimes, however, procedure is substance, as is the case here. Plaintiff and appellant []’s failure to follow the most basic appellate procedures compels our disposition affirming the judgment below.

Newsom appoints judges

GovernorNewsom Appoints 11 Superior Court Judges

SACRAMENTO – Governor Gavin Newsom today announced the appointment of 11 California superior court judges, which include: One in Contra Costa County; three in Los Angeles County; one in Mendocino County; one in Napa County; one in Riverside County; three in San Diego County; and one in Santa Clara County.

Of appellate note:

• Julia Campins, Contra Costa County Superior Court, served as a law clerk to 9th Circuit Judge Berzon (2005-06)
• Steven Ellis, LASC, clerked for D.C. Circuit Judge Ginsburg (1991-92)

The Recorder has Gov. Newsom First Batch of Superior Court Appointments Stacked With New Women Judges

Hunsaker advances

Law360 reports: Picks For 9th, 2nd Circs. Advance With Bipartisan Panel Vote

Four judicial nominees sailed through the Senate Judiciary Committee on a bipartisan basis Thursday, teeing up confirmations to the Ninth Circuit, the Second Circuit and district courts in Florida and Pennsylvania.
The committee sent to the Senate floor Oregon Judge Danielle J. Hunsaker for the Ninth Circuit with a 16-6 vote, ....

The DJ has President Trump’s proposed eighth 9th Circuit judge set for confirmation vote: Oregon state Judge Danielle Hunsaker moved a step closer Thursday to becoming President Donald J. Trump's eighth successful appointment to the 9th U.S. Circuit Court of Appeals after a bipartisan Senate Judiciary Committee vote advanced her nomination to the full chamber for final approval.

• Four Democratic senators -- Dianne Feinstein, Patrick Leahy, Sheldon Whitehouse and Chris Coons -- joined the committee's 12 Republicans to recommend Hunsaker's nomination by a comfortable 16-6 tally. All but two of Trump's prior circuit nominees advanced on party-line votes.
• Two additional Trump nominees -- federal prosecutor Patrick J. Bumatay in San Diego and former Nevada solicitor general Lawrence VanDyke -- await committee hearings. Both would replace George W. Bush appointees, Carlos T. Bea and Jay S. Bybee, who are soon to take senior status.
• The timing of Hunsaker's final Senate confirmation vote has yet to be announced.

Div. 5 at CSUN

CSUN Today reports May it Please the Court: CSUN Makes History with Appellate Court Session on Campus about Division 5's visit last week. The court heard argument as nearly 500 CSUN students and faculty watched.

"CSUN made judicial history Oct. 16, as the first California State University campus to host a session of the California Court of Appeal, Second Appellate District, Division Five. It’s exceedingly rare for any court to hold a session outside the confines of the traditional courtroom, let alone traveling to a campus. Invited from their usual courtrooms in downtown Los Angeles by CSUN professor and former appellate justice Sandy Kriegler, the justices and the attorneys presenting the day’s cases enthusiastically agreed to the court “road show” of sorts."

“As you could tell from the arguments, we’re not used to fielding questions,” one of the justices quipped. “We’re used to giving questions.”