9th Cir. Gets New Judge!

This press release title says it all:

Senate Confirms John B. Owens to Seat on Ninth Circuit Court of Appeals

 

See Senate Ends Feud Over Ninth Circuit Seat at the Recorder;
Munger Tolles Atty Confirmed to 9th Circ. by Senate at Law360;
California Wins Out Over Idaho in Fight over Ninth Circuit Post in the LA Times;
Obama's U.S. Court of Appeals nominee John Owens confirmed in the SF Gate;
U.S. Senate Confirms John B. Owens to Ninth Circuit in the Metnews ("He once worked in the publicity department of the Golden State Warriors basketball team. When asked for a listing of his published works, as a routine part of the confirmation process, he included a number of articles on basketball, in addition to his legal writings").

Retired Justice Masterson passes at 82

Today's MetNews has an article titled Retired Justice William A. Masterson, 82, Dies, Memorial Tribute Slated, referencing a service set for 2 p.m. at the California Club on April 12. A profile of Justice Masterson, who served in 2/1, is here.

[Update 4/2/14: See the DJ's Emily Green's article, Longtime Los Angeles judge, appellate justice has died, with quotes about Justice Masterson from Justices Art Gilbert and Chuck Vogel.]

Justice Nicholson profiled

Today's DJ profiles 3d DCA Justice George Nicholson (George W. Nicholson is known as a 'restless intellect' with boundless energy in and out of court). The article emphasizes that even after 20 years as an appellate justice -- authoring more than 3K opinions -- Justice Nicholson "continues to impress ... with his boundless energy and big ideas." He is "always looking for new challenges and new opportunities"; he is always pondering the "bigger picture about courts and the public." When his friends and colleagues receive long emails explaining an idea they call it "getting Nicked."

Retired Justice Sims is quoted: "He had a great record of getting me reversed. When I'd see Nicholson dissenting, it sent chills up my back."

Justice Humes profiled

Friday's DJ profiled 1/4's Justice James Humes (James Humes, Gov. Jerry Brown's longtime trusted adviser, is making his mark on the appellate court), who was appointed in 2012.

Humes served as Brown's chief deputy at the state attorney general's office, and, when Brown became governor, as one of his two senior-most advisers. There, Humes - who claimed he has "zero political instinct" - supervised all the "nonpolitical stuff," including high-stakes litigation against the state. ... Humes instantly made history by becoming the first openly gay appellate court justice in California. ... former colleagues painted a picture of a man nearly universally adored as a top-rate lawyer and brilliant manager.

Comments include: "Jim is just incredibly fair and honest and ethical"; "never form over substance"; "doesn't beat about the bush."

The article notes that many expect Brown to name Humes to the Supreme Court eventually, perhaps even to take Justice Kennard's seat.

And, because "He really appreciates good writing. He is almost an artist when it comes to wanting every word to count," he'd probably appreciate this latest article by Bryan Garner: Ax These Terms From Your Legal Writing

2d DCA pro tem extensions

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 May 31, 2014
• Judge Edward A. Ferns of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until May 31, 2014
• Judge Lee Edmon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until May 31, 2014
• Retired Judge Michael Mink will be sitting Pro-Tem in Division Five until May 31, 2014
• Judge Joanne B. O’Donnell of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Six until March 31, 2014
• Judge Earle Jeffrey Burke of the San Luis Obispo Superior Court, will be sitting Pro-Tem in Division Six beginning April 1, 2014 until May 31, 2014
• Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until May 31, 2014
• Judge Russell S. Kussman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until May 31, 2014

Phones allowed in the 2d District Courtroom, but not for the Supremes

As you'll recall, on January 1, the 2d District revised its courtroom policies to allow electronic devices -- tablets, laptops, cell phones, etc.-- into the courtroom - but they (1) may only be used for court business (i.e., related to the case you're there to argue), so no emailing or web surfing; and (2) must be powered off or silenced (as in airplane mode). This is a great convenience for security personnel and those entering the courtroom (lawyers, clients, the public), because they needn't check in devices, deal with a claim check card, and then go through the hassles of retrieving the devices when leaving the courtroom.

But note: When the Supreme Court uses the courtroom, such as next week, protocol reverts to the old way: No mobile devices allowed in the courtroom.

As for how the new system is working, there have been a handful of courtroom incidents since January involving phones. I witnessed one, where a phone was vibrating in the purse of a woman sitting in the public gallery. The CHP officer escorted her from the courtroom and (I learned later) took down her information, as the officer had warned he would do before the justices took the bench. Apparently this has happened before, and presumably the court is keeping records to see if the public can be responsible enough to abide by the new policy. To date, I'm not aware of anyone actually being ticketed or any phones being confiscated. Let's not abuse this privilege: Please silence your devices in the courtroom!

Div. 6 gets another pro tem

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 March 31, 2014
• Judge Edward A. Ferns of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until March 31, 2014
• Judge Lee Edmon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until May 31, 2014
• Retired Judge Michael Mink will be sitting Pro-Tem in Division Five until March 31, 2014
• Judge Joanne B. O’Donnell of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Six until March 31, 2014
• Judge Earle Jeffrey Burke of the San Luis Obispo Superior Court, will be sitting Pro-Tem in Division Six beginning April 1, 2014 until May 31, 2014
• Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until March 31, 2014
• Judge Russell S. Kussman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until March 31, 2014

Also, in the 9th Circuit's universe:

• Reader Kent Qian points out this one-line dissent.
• And see Arjmand v. Department of Homeland Security for a ruling that the Circuit lacks original jurisdiction over a citizen's action to determine if he is on the terrorism watchlist.

 

Today's appellate tidbits

The DJ's Emily Green starts us off with Changes Ahead at State High Court as Justice Prepares to Leave, noting that Justice Kennard "leaves at a particularly busy time" and most of her staff attorneys are expected to retire as well. The article explains that appellate justices are called up in alphabetical order to pro tem, with the next justice on deck being the 3d DCA's William Murray.


"Unlike in ages past ... even a Daniel Webster cannot salvage a case submitted today on bloated or muddled briefing."

Next, Nat Garrett of Jones Day (America's largest law firm, according to Law360's ranking) offers In Today's Appellate Advocacy, Talk is Cheap (which does not address law firm billing rates), recounts how over the past two centuries, "appellate argument has transitioned from oral presentation to the written word." "According to Professor Suzanne Ehrenberg of Chicago-Kent College of Law, the history of appellate practice in 19th-century America showed 'a movement from the use of oral argument as the court's principal means of learning about a case, with the brief as a supplement, to the use of oral argument as a supplement to the brief.'"
As we so often hear, "the brief is where an appeal is won or lost."
 

  

Finally, in today's Recorder, Justice Beds takes a crack at electoral reform, here.

E-Filing Comes to a California Appellate Court, at long last

See Emily Green's piece in the DJ today about the 1st DCA's new e-filing program. She reports that "There are 40 states with intermediate appellate courts and roughly 20 have e-filing, according to the National Center for State Courts."
   

The system implemented by the 1st District Court of Appeal is relatively rudimentary. Two outside vendors host and manage the e-filing system, and lawyers pay $9 per filing. Court employees can access the documents, but they aren't available to the public online. Lawyers won't file a paper version of the documents. ....
Other appellate courts in the state have experimented with e-filing. The 2nd District Court of Appeal requires administrative documents, such as requests for time extensions, to be e-filed.

 

Federal Appellate News of Note

Today's Recorder features: Kozinski Touts Technology-Filled Tenure in Bar Association Speech:

In something of a farewell speech on Wednesday, Kozinski, whose seven-year term as chief judge ends in December, emphasized the use of technology and face-to-face gatherings to build community and access at the sprawling appellate court.
Under Kozinski's watch the court has overhauled its website and now streams audio of all its arguments live, as well as video of its en banc hearings. "That means you can see them in real time anywhere in the world," he told the Bay Area chapter of the Federal Bar Association. Video of all three-judge panel hearings is coming in the "not-too-distant future."

Official press release = Ninth Circuit Chief Takes Stock of Seven Years at Helm

Over at Law360 Appellate:

Sidley Blames E-Notices For Blown Deadline In IP Appeal: "Sidley Austin LLP told the Federal Circuit on Tuesday that it missed the deadline to appeal a $40 million patent verdict against client AT&T Inc. for its U-Verse television service because of misleading notices by the trial court, and that the patent owner's motion to bar the appeal should be denied."

Lawyer Suspended For Calling In Sick To 7th Circ. Hearing

A defense attorney who faked a stomach bug to get out of oral arguments before the Seventh Circuit was on Friday suspended from practicing law in Illinois for 60 days. (See here too.)



Finally, following up on discussions about how to cite to the appellate record, the 5th Circuit posted these instructions on Monday, which are obviously not relevant to SoCal appellate practice, but may be a preview of things to come.

Don't file post-trial motions with the referee!

An unpublished Div. 7 case from Monday, Pearson v. SCIF, contains an important lesson about properly filing post-trial motions in the trial court in cases involving a referee:

[O]n May 31, 2012, Pearson filed a "Notice of Motion for New Trial and Notice of Motion to Set Aside Judgment" with the referee. Pearson did not file the notice or motion for a new trial in the superior court until June 11, 2012. Although Pearson’s May 31 notice was submitted to the Referee within 15 days after it was served with the judgment, Pearson did not file that notice with the superior court clerk as required by Code of Civil Procedure section 659. Pearson has not submitted any authority which holds that service on a referee satisfies the statutory requirement that the notice be filed with the clerk of the court. Thus, Pearson’s May 31 notice did not comply with the filing requirements of Code of Civil Procedure section 659 and therefore it did not preserve the trial court’s jurisdiction to decide the merits of the motion. Likewise, although Pearson’s subsequent motion for a new trial was filed with the superior court clerk, it was filed on June 11, 2012 – more than 15 days after service of the judgment and thus was filed too late.

Also from Monday, read and/or watch the Chief's State of the Judiciary Address here.


And, for today's lesson in calendaring, see this opinion, which states "They failed to appear for trial because the attorney miscalendared the trial date." Not a happy ending.

Oral argument recording fee jumps to $40

The 4th District's website now has a notice that the cost for obtaining an oral argument recording will double from $20 to $40 next month:

Effective April 1, 2014 The fee for preparation of a CD of oral argument will be $40.00.  Please see our Practices and Procedures page for procedures in each Division.
[Or read below, noting that as of 4/1/14 "$20" jumps to "$40":]
The court does not transcribe oral arguments, however a recording is available.
Div. 1 The court accepts requests for copies of the recorded argument by letter with $20.00 fee enclosed. Copies are available one week after oral argument. The fee is required prior to preparation. Checks are to be made payable to "Clerk, Court of Appeal". The recorded argument can be picked up in person or delivered by general US mail.  Copies are in .WMA format.

Div. 2 The court accepts requests by letter with the $20.00 fee enclosed for copies of the argument for a case recorded within 6 months of the case being orally argued. The fee is required prior to preparation. Checks are to be made payable to "Clerk, Court of Appeal". The CD can be picked up in person or delivered by general US mail. You may call to inquire whether the recording is available.

Div. 3 The court accepts requests for copies of the recorded argument by letter. The recorded argument can be picked in person at the filing window or delivered via mail. The request is copied and available within five working days. The court does not transcribe the oral argument.

State of the Circuit program

Yesterday the Federal Bar Ass'n Los Angeles held its annual State of the Circuit/District luncheon, featuring presentations from 9th Circuit Judge Paul Watford, Chief Judge George King, Chief Magistrate Judge Suzanne Segal, and Chief Bankruptcy Judge Peter Carroll. Judge Watford reported that 27 of the 29 positions in the 9th Circuit are filled; that pro per filings accounted for more than half of the circuit's caseload last year; that the average time between the filing of a notice of appeal and an opinion is slightly over 13 months; that 92% of decisions are unpublished; and that Judge Sid Thomas will become Circuit Chief on November 30.

Gaunt & Pathetic

Much has been written already about Judge Posner's latest slam (in this opinion from Wednesday). So rather than pile, on, here's the key quote, and you can guess what happens next:

The defendants’ appeal brief is a gaunt, pathetic document (there is no reply brief). Minus formal matter, it is only eight and a half pages long. Brevity is the soul of wit, and all that, but still: the first seven and a half pages are simply a recitation of the history of the Georgia lawsuit, the settlement negotiations, and the present suit, along with questionable and irrelevant facts; and the tiny argument section of the brief—118 words, including citations—states merely, without detail or elaboration, that the defendants do not possess the settlement funds and therefore can’t restore them.

===
Further appellate tidbits:

• "Longtime writer and appellate lawyer works to resolve cases already up on appeal." That's the caption for today's DJ profile of Orange County appellate specialist (and blogger) Donna Bader. She estimates that only about 40% of appeals sent to mediation settle.

• Also, you'd ordinarily think that when a party is entitled to fees for trial court work, that entitlement to fees carries through on appeal. But apparently that's not always so; see Attorney Fee Award in Patent Case Doesn't Extend to Appeal in today's Recorder.

Justice Alito headlines Pepperdine Law School Dinner

Last Saturday night, Southern California was treated to a visit by SCOTUS Justice Samuel Alito who spoke at Pepperdine 41st Annual Law School Dinner. His comments addressed hard cases and attending the State of Union address; he also stated, “Our country needs lawyers.” The Malibu Times covered the event here.
Before the dinner Justice Alito was a moot court judge in the final round of the school's Dalsimer competition.
Pepperdine's website also reports: "In the honors portion of the event, the Robert H. Jackson Award was presented to Justice Alito. Senior Judge Stephanie K. Seymour of the Tenth Circuit Court of Appeals and Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals were recognized with The Vincent S. Dalsimer Dean's Award." Further, Dean Deanell Reece Tacha announced a one million dollar gift, plus an additional million in matching funds, from Carrol and R. Rex Parris, the mayor of Lancaster, for a new Center for Professional Formation that "will provide additional facilities and support for Pepperdine's collection of "practice-ready" initiatives."

3d Circuit Judge to retire!

The 3d Circuit covers Pennsylvania, New Jersey, Delaware, and the Virgin Islands, so how is that Southern California Appellate News? Well, it is when it's Judge Ruggero Aldisert, who keeps chambers in Santa Barbara. (A hard precedent to follow?) The DJ reports today that, at age 94, he plans to retire in August. Nominated to the 3d Circuit by President Johnson (Lyndon, not Andrew), he went senior in 1986 and moved to SB. He has authored numerous law review articles and over a dozen books, including the famous Winning on Appeal and Opinion Writing (which is given to every new state and federal appellate judge). The article notes that he has sat on over 100 cases for the 9th Circuit. If, somehow, Judge Aldisert has escaped your attention, it's time to remedy that gap and start reading his books and articles. Start with this 2003 interview by How Appealing.

Students treated to 2d District arguments

March 27 is a big day for educational institutions and the 2d DCA.
First, Div. 4 will be hearing arguments at USC; second, Div. 8 will be hosting high school students as part of the ACE program.

Presiding Justice Norman Epstein announced today that the Court of Appeal, Second Appellate District, Division Four will hold a special oral argument outreach session for students from the University of Southern California Gould School of Law, beginning at 9:00 a.m. on March 27, 2014. This program is designed to introduce first-year law students to the appellate court system, and as part of this educational program, the justices will attend a luncheon with students to answer questions and discuss the appellate court processes and procedures. The program is a collaborative effort involving Presiding Justice Norman Epstein, Associate Justices Thomas Willhite and Nora Manella of the Court of Appeal, and the Legal Writing and Advocacy Program at the University of Southern California Gould School of Law. The cases to be argued are:
9:00 a.m.
Shaham v. Tenet Hospital Corporation, et al. (B246549)
Arroyo, et al. v. Plosay and White Memorial Medical Center (B245659)
10:45 a.m.
Adelman v. Adelman (B248303)
Scholars Academic Foundation, Inc. v. City of Glendale (B243799)
1:30 p.m.
American Master Lease v. Robins, Kaplan, Miller & Ciressi (B246654)
Kieferle v. Hernandez, et al. (B243909)
======
WHAT:  The Court of Appeal, Second Appellate District, Division Eight, will host its “Appellate Court Experience” (ACE) educational outreach program for students from North Hollywood High School and Grant High School.
WHEN:  Thursday, March 27, 2014, 9:30 a.m. to 11:30 a.m.
WHERE:  Court of Appeal Courtroom, Ronald Reagan State Building, North Tower, Third Floor, 300 South Spring Street, Los Angeles.
Launched in 2005, the ACE Program has helped educate thousands of high school students about the appellate courts. The program includes a classroom curriculum administered by appellate attorneys, followed by a visit to the Court of Appeal to observe oral arguments in a case previously studied in the classroom. After oral argument, the students are introduced to the appellate court process first-hand with an opportunity to interact with the justices and the attorneys. ACE is co-sponsored by the Court of Appeal, Second Appellate District, the Constitution Rights Foundation, the Los Angeles County Bar Association’s Appellate Courts Section, and the California Academy of Appellate Lawyers.

Federal court statistics available today

"An in-depth look at the caseload of the federal courts can be found in the 2013 Judicial Business of the U.S. Courts, released today by the Administrative Office. ... Filings in the courts of appeals ... fell in FY 2013."

Sifting through the data for what you care about most, timing & results:

Table B4-A -- Median Time Intervals:
From notice of appeal to opinion in appeals from district courts to the 9th Circuit = 13.1 months overall and 19.5 months for civil appeals [yes, the slowest Circuit by over seven months]: 10.5 of those months being the waiting time from the last brief until oral argument/submission [yes, this is by FAR the slowest of all the circuits -- the next slowest is the 4th Circuit 4.8 months] and 1.5 months waiting time from argument to opinion.

Table B5 -- Appeals Terminated on the Merits (i.e., outcomes!):
Overall 9th Circuit reversal rate = 8.3%
For appeals involving the United States = 15.4%
For private civil appeals = 18.1%

 
Also of note today, Law360 has an article (by Robert Carty and Dawn Solowey at Seyfarth) titled 5 Tips for In-House Counsel Reviewing Appellate Briefs, which identifies the following red flags:
Red Flag No. 1: Stilted Writing
Red Flag No. 2: Lack of Focus
Red Flag No. 3: The Standard of Review is Missing in Action
Red Flag No. 4: Compromised Credibility
Red Flag No 5: Misunderstanding the Audience

JABA Gala includes Kennard Tribute

Last Friday the Japanese American Bar Association held its 38th annual installation and awards gala in downtown LA. After taiko drummers, remarks from KTLA's Frank Buckley, a violin performance by Ryu Goto (who received an Inspiration Award), and a keynote address by Congressman Mark Takano, the event concluded with a special tribute to Justice Kennard. This included a video (probably the same video played at the 30th Gala in 2006, where Justice Kennard was presented with the JABA Lifetime Achievement Award) about her life and her own remarks, which included her reading of her recent letter to Governor Brown announcing her retirement from the Court after 25 years. Justice Kennard noted that because of her "mongrel background" (her words), she always felt like an outsider, yet was always welcomed by the Asian bar communities. Other appellate notables at the event included retired Justice Carlos Moreno, 2/5's PJ Paul Turner, and 2/1's Jeffrey Johnson.



[While we're on the subject of Japanese, sort of, don't miss this W.D.Tex. decision from last week, which references the "proverbial Kobayashi Maru."]



{And, now that we're on the topic of frustrating failures, the appellate courts' website has been down all day today: "The Appellate Court Case Information website is currently unavailable due to a database issue on Monday, March 10, 2014. We are working on restoring service as quickly as possible. Please try again later. Thank you for your patience."}

$8K in appellate sanctions imposed, and more

For today's appellate sanctions update, look no further than 2/2's decision here.
[There's a very odd line on page 5 of the decision that reads: "Pursuant to California Rules of Court, rule 8.104(a)(1)(B), appellants were required to file a notice of appeal of the order within 60 days of that date, with an additional five days because the notice was served by mail. (Code Civ. Proc., sec. 1013.)" (emphasis added). This sentiment is repeated later on page 5: "Appellants were required to file their notice of appeal of the order within 60 days of that date, with an additional five days because notice of entry of the order was served by mail."
But section 1013, subdivision (a), expressly does not apply to notices of appeal: "the extension shall not apply to extend the time for filing [various things, including a] notice of appeal. See InSyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129, 1134 ["Service by mail of a triggering document does not extend the time to file a notice of appeal."].]

As for interesting 9th Circuit developments, see here, where the good professor Shaun Martin points out an unusual procedural history in which a memdispo gets published, but without the opportunity for an en banc petition. Curiouser and curiouser.

Also, Friday's DJ (2/28/14) had a piece by 2/5's Justice Mosk, Dealing with Iran not as Foreign as Many Seem to Think. Justice Mosk served on the Iran-U.S. Claims Tribunal from 1981-1984 and continued work on it through 2001.

Hey, the judge is marrying the opposing party!

"Marrying" as in officiating at the wedding of your litigational adversary. Is that grounds for disqualification? What if it's a divorce case and the judge is going to perform the marriage of your ex? Apparently, that's not enough in today's published opinion here:

After considering the particular facts before us and applicable law, we determine

Commissioner Ratekin's conduct was not a disqualifying event. Under circumstances

similar to those here, the California Supreme Court found no appearance of partiality

where a trial judge officiated at the wedding of the prosecutor's daughter several months

before the judge presided over the defendant's death penalty trial. (People v. Carter

(2005) 36 Cal.4th 1215, 1240-1244.) Following Carter, we conclude that when a judge has no personal or social relationship with the attorney and the judge's only role at the wedding is that of an officiant, disclosure is required (Cal. Code Jud. Ethics, canon 3(E)(2)(a)), but disqualification is not mandated absent additional facts.

 

 

 

"E-filing Comes to the First District"

That's the article you need to read in today's Recorder, here.
Registration begins March 10, e-filing becomes mandatory for most civil cases on March 17, and in criminal cases on April 14.

DJ profiles Justice Blease, and more

Today's DJ profiles Justice Coleman Blease of the 3d District. Now in his 35th year, he is the 2d longest serving Court of Appeal Justice (after 2/3's PJ Klein). A juicy quote: Legislative intent is "what the courts hide behind when they want to apply policy." Needless to say, he is a strict statutory constructionist.

"Smart, smart, smart," says 3d DCA former PJ Scotland.

Also in today's DJ, If a Tree Falls on You in the Forest -- PJ Gilbert's monthly column.

And, a letter to the editor -- Former Justices Unfairly Portrayed in Vacancy Column -- defends the honor of former Supreme Court Chief Justice Bird and Justices Reynoso and Grodin.
Over at The Recorder, see Appellate Elites Learn to Love Patents and Ben Feuer's How to Obtain a Stay Pending Appeal.
Finally, the AOC has issued this press release and report, showing more diversity on the California Bench.