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.
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.
The ACC hosts its monthly meetings on the fourth Wednesday of the month at noon at the County Bar Center, 11th 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 (email@example.com).