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.”]

Court of Appeal APPOINTMENTS!

Click here to read details on the following appointments:
Justice Rothschild to be Presiding Justice of 2/1;
Lee Edmon to be Presiding Justice of 2/3;
Brian Hoffstadt to join 2/2; and
Audrey Collins to join 2/4.

Also, Justice Humes to be Presiding Justice in 1/1;
and Therese Stewart to join 1/2.


[7/2/14 update: Want to share your thoughts on the appointments? Here's your chance.]

Justice Gilbert's case published!

He can publish cases and he can be IN published cases, as  here.
The upshot?

The judgment is reversed and the matter is remanded to the trial court with directions to enter a new judgment declaring Section 17 does not prohibit Gilbert from commencing other public office or public employment immediately following his resignation or retirement from judicial office, even if that resignation or retirement occurs before the end of his current judicial term. Gilbert is to recover his costs on appeal.

[6/30/14 update: See The Recorder, Court: No Bar on Retired Judges Taking Public-Sector Jobs]

For something far less momentous, but perhaps equally unusual, here's a decision resolving a dispute about an appellate costs bill!

Chief to do away with the AOC!

Well, not really. Just to change its name....
Details below (and here):
[Update 6/30/14, see the DJ: Administrative Office of the Courts to Lose its Name: AOC drops name as part of image makeover, reforms]

Chief Justice Announces Intent to Shed AOC Name

Judicial Council supports move; action due in July

SAN FRANCISCO—Citing confusion caused by having a staff with its own name, Chief Justice Tani G. Cantil-Sakauye urged the Judicial Council to divest itself of the name “Administrative Office of the Courts.”

“When I and others advocate for the public on behalf of the judicial branch we often encounter confusion among those who think that the Judicial Council and the Administrative Office of the Courts are two separate entities. They’re not. Quite simply, the administrative staff exists to support the Judicial Council and provide services to the courts, the public, and sister branches of government. Unifying the council and its staff under one name, Judicial Council, will create more clarity and transparency about the role and governance responsibilities of the Judicial Council. It also mirrors the standard practice of other government bodies who do not provide separate names for their staffs.”

Council members and Judge Steven Jahr, Administrative Director of the Courts, greeted the proposal with approval. Justice Douglas P. Miller, chair of the council’s Executive and Planning Committee, said, “This identity change reflects the significant and substantive changes that we as the governing body have made in policy and responsibilities over the last three years, and eliminates confusion so many of us have confronted.”

Judge Charles D. Wachob, co-chair of the Chief Justice’s Strategic Evaluation Committee, whose report in 2012 resulted in more than 100 Judicial Council directives for restructuring and reform of the administrative staff, also supported the move, calling it “A necessary step to resolve a perception crisis” that the committee was aware of but did not directly seek to resolve because it wasn’t in its charge.

Judge Jahr said, “This retirement at once changes everything, and changes nothing. There’s only one entity, and that’s the Judicial Council of California. Neither in the Constitution, in statute, in rules, or in other formal methods, was a separate entity ever created. The change is more than superficial. It changes nothing in our organizational structure, but it does emphasize that the Judicial Council is the governing body with a staff that supports it, and it reflects a culture change that is already under way.”

The Chief directed the chairs of the council’s internal committees to prepare an amendment to the rules of court implementing the change for the council to take up at its next meeting, July 29. Judge Jahr was asked to address implementation issues within the same time frame.

AOC gets a makeover!

More good opening lines

"This is a strange case." Sounds like maybe the start to a decision by Justice Beds, but it's not this time. What's puzzling Justice Robie? Something about club membership: click here for the details.

Instead, Justice Beds starts off his latest decision here with this nice line: "While appellant correctly identifies this as a “What’s in a name?” case, the Shakespearean reference sheds little light on its proper resolution."

And then there's this opening line today: "This appeal echoes a familiar cry from the American Revolution—“No taxation without representation!” " See here.

• In today's DJ, Jimmy Azadian offers a "Review of What's Left on the High Court's Docket" for this term.
• And loyal reader Jeffrey Lewis points out this non-pub here, which has a good discussion of appellate jurisdiction over post-judgment fee awards.

DJ Buffet (of appellate articles)

The DJ's Emily Green continues with Governor Gets a Second Chance to Remake State High Court: Recent Retirement Announcement Means Two More Seats to Fill. No further elaboration here; you simply must read this article and enjoy its memorable quotes. (See also The Recorder, For Governor, a Chance to Remake High Court.)

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Next, lawyer David DeGroot offers 9th Circuit Gets More Than its Fair Share of Scrutiny, detailing stats about the Circuit's 10 reversals in 11 cases. He computes that SCOTUS reviews a greater share of the 9th Circuit's cases than its 19.7% share of national population would suggest. See also John Roemer's DJ article from last Thursday, Winners of U.S. Supreme Court Term Include Patent Defendants, District Judges, quoting Kathleen Sullivan as saying "The Federal Circuit has become the new 9th Circuit." Not to be outdone, UC Davis's Vik Amar called the 6th Circuit "another new 9th Circuit."

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Today's DJ also profiles FFF, Senior 9th Circuit Judge Ferdinand F. Fernandez, calling the "famously reclusive" Clinton-appointee a "staunch conservative."

(Not FFF.)

Another Supreme Court vacancy coming...

Justice Marvin Baxter Announces He Will Not Seek Re-Election

To retire from bench after 24 years on the California Supreme Court
[Updates: see also Justice Baxter is retiring here; Baxter to Leave Supreme Court at Year End in The Recorder; and Emily Green's Conservative Justice to Retire from State Supreme Court in the DJ; Law360 article here.]

SAN FRANCISCO—Justice Marvin R. Baxter today announced that he will not seek re-election as an Associate Justice of the California Supreme Court in the November 2014 general election. He will conclude his current term of office and retire on January 4, 2015, after 24 years on the Supreme Court and 32 consecutive years of public service.

“I have been privileged to have such an interesting and fulfilling career in the law, serving as a deputy district attorney, in private practice, as Appointments Secretary to Governor George Deukmejian, and as an Associate Justice on the California Court of Appeal and Supreme Court,” said Justice Baxter. “It is a great honor to have served on the state’s high court since 1991. With three Chief Justices, twelve Associate Justices, and excellent staff, I have been able to contribute to its substantial body of opinions and case law. At the local and statewide levels I was gratified to have the opportunity to assist Governor Deukmejian in the appointment of more than 700 judges and numerous executive branch appointees, and to have supported the evolution of our judicial branch of government as a member of the Judicial Council of California and its committees. Jane and I look forward to an active retirement and will focus our time and attention on family and friends, traveling, hobbies, and charitable activities.”

Chief Justice Cantil-Sakauye commented on the announcement saying, “I was very fortunate when I became Chief Justice to have the quiet-spoken and reflective Justice Baxter on my left-hand side not only on the Supreme Court but also on the Judicial Council. I will miss his sage advice and counsel. Justice Baxter has a wealth of experience and is an intellectual force to be reckoned with. His cautious approach has not only helped our judicial branch develop and manage the checks and balances of our democratic system, but his legal reasoning has significantly contributed to the ‘documents of state’ that our court’s opinions represent and therefore to the rule of law.”

Having grown up on his family’s farm in Fowler, Fresno County, Justice Baxter began his legal career in 1967 as a Fresno County deputy district attorney, where he served for two years. He then became an associate and later a partner in the Fresno law firm of Andrews, Andrews, Thaxter, Jones and Baxter, where he practiced civil law for 13 years. In 1983, he became Appointments Secretary to Governor Deukmejian, serving as principal advisor for six years on all gubernatorial appointments made to the executive and judicial branches of government.

Former Governor Deukmejian stated that, “Marv Baxter has been a good friend and trusted advisor for over 30 years. His quiet yet thoughtful demeanor served as a steady influence during some troublesome times that I experienced in the Governor’s Office. His endless efforts resulted in well established recommendations that I grew to rely upon, especially in the selection of individuals for judicial appointments. His accomplishments both on and off the bench have been justifiably praised by all who know him.”

In 1988, Governor Deukmejian appointed Baxter as an Associate Justice of the Court of Appeal, Fifth Appellate District, where he served for two years. Justice Baxter was then nominated by Governor Deukmejian in 1990 to serve as an Associate Justice of the California Supreme Court, confirmed by the electorate, and subsequently reelected to a second 12-year term in 2002.

“Two terms on the State Supreme Court is remarkable,” noted retired Chief Justice Malcolm M. Lucas. “Justice Baxter is a solid person, with great perseverance and intelligence and he added so much when he came onto the court and still does to this day—the court will greatly miss him. And at my vaunted age of 87, I can say that it is not too bad just to sit back and contemplate life, but I know he owns a classic 1958 Corvette that may get some more attention. I wish him and his wife Jane well in whatever endeavors they choose to undertake together.”

Justice Baxter was educated in the local public schools in Fowler, received an undergraduate degree in Economics from the California State University, Fresno, served in San Francisco as a Coro Foundation Fellow in Public Affairs, and graduated from the University of California, Hastings College of the Law in San Francisco with a juris doctorate degree in 1966. He has held leadership positions within his alma maters and bar associations, having served as President of Fresno State’s student body, its alumni association and its trust council, and as President of the Fresno County Bar Association and the Fresno Young Lawyers Association. He is a Director Emeritus of UC Hastings College of the Law.

In 1996, then-Chief Justice Ronald M. George appointed Justice Baxter to the Judicial Council of California, on which he still serves. He will have served 18 years as Vice-Chair of the Judicial Council when he retires, and has chaired the council’s Policy Coordination and Liaison Committee for 16 years, as well as its Appellate Advisory Committee. He has served on the council during a crucial period for the judicial branch in its development as an independent, co-equal branch of government, involving court unification, trial court funding, facilities, and the establishment of the trial courts as independent employers.

Former Chief Justice George commented that, “Justice Marvin Baxter has contributed decades of public service at both the state and local levels of government, working in or with all three branches of government. The people of the state of California will continue to benefit for many years to come from the legacy of incisive, objective, and common sense decisions that he rendered for the court and as a leader in judicial administration during his years on the Judicial Council. Justice Baxter's constructive and collegial approach to problem-solving was of great benefit to me and to our colleagues during the time we served together. I join the many persons in the judicial branch and the legal profession who have expressed deep appreciation for Justice Baxter’s service, and in wishing him and his wife Jane all the best in the future.”

Justice Baxter has received a number of awards and recognitions over the years including the Distinguished Alumnus Award from UC Hastings College of the Law, the Distinguished Alumnus Award from California State University, Fresno, the Mentor Award from the Fresno County Young Lawyers Association, a “Man of the Year Award” from both the Armenian Professional Society and the Armenian National Committee. He is an honorary member of the Armenian Bar Association.

Justice Baxter has been married to Jane Pippert Baxter, a retired teacher, for 51 years. They have two adult children, Laura Baxter-Simons and Brent M. Baxter, and four teenage grandchildren. 

"Pejorative adjectives do not persuade"

Here's a 4/3 decision where a one-page statement of facts waives a substantial evidence argument. And then this memorable footnote:

We also feel compelled to disapprove of PRP’s claims in the statement of facts and procedural history that Noble “deceived the trial court by misrepresenting the law”; that it “failed to advise the trial court that this specious argument was previously rejected”; that it “hid from Judge Ochoa that this exact argument was rejected by” another judge; and by referring to the motion as a “ludicrous non-suit motion . . . .” (Italics added.) Attacks on the character of opposing counsel are not well received in this court, and pejorative adjectives do not persuade.

Also, beware of the partially designated transcript: a good lesson appears here, in a section of the decision titled APPEALABILITY OF UNDESIGNATED ISSUES.


And the hits just keep on coming! Here's another appellate crash:

Because we find the opening and reply briefs, prepared by appellate counsel, are unintelligible and otherwise in violation of settled appellate rules, we deem any and all points raised to be forfeited.

[Another update: And don't miss this $15K appellate sanctions case here.]

Justice Corrigan spars with KO

Last night was the Public Law Center's Volunteers for Justice 2014 Annual Dinner, a real who's-who, don't-miss-it legal event in Orange County. Many justices from 4/3 were there, including Justices Aronson, Fybel, and Ikola -- and PJ Kathleen O'Leary (aka KO). Rather than a keynote address, KO and Supreme Court Justice Corrigan engaged in an amusing conversation filled with friendly banter and repartee.

Justice Corrigan said that her favorite part of being on the Supreme Court is the writing; being able to make California law. Her least favorite part is the travel. The biggest change from being on the Supreme Court versus the Court of Appeal is that 7 is more than 3 -- i.e., it's harder to get a unanimous opinion. Also, there is much more conversation via written memo, rather than face-to-face discussions among the justices.

Justice Corrigan said that the best way to have a petition for review granted is to show a conflict among the appellate districts, to have a dissenting opinion in the Court of Appeal, or to point to the need to interpret new statutory language. She emphasized that although a quarter of the court's workload is death penalty appeals, every case gets white glove treatment.

Her oral argument tip was: Eat a good breakfast! Don't get up early and not eat breakfast; that is a recipe for passing out at the lectern, which she has seen happen twice. Beyond a good morning meal: Be smart; Be prepared; and don't lie.

The interview ended with a stirring rendition of the Notre Dame fight song.

Also mentioned was her devotion to St. Vincent's Day Home;
she is the President of the Board of Directors.

Hot appellate issue: how to pronounce cert?

How is ‘certiorari’ pronounced? Even Supreme Court justices disagree

Can you match the Justices to their respective pronunciations of "certiorari"?

• “ser-shee-or-RARE-eye,” rhyming with “fair guy.”
• “ser-shee-or-RAHR-ee,” rhyming with “Ferrari” or “car key.”
•  ___ pronounces the first two syllables “sertzee.”
• “ser-shee-or-ARR-eye,” rhyming with “far cry” or “czar guy.”
• “ser-shee-ARR-ee,” with a dropped syllable

Satisfaction of judgment = waiver of appeal = appellate sanctions

When does a lawyer cross the line from "zealous advocacy" to "indefensible artifice"? That's the $25,000 question answered in today's appellate sanctions case from 4/1 here.

We next turn to Bay Vista's motion for sanctions. Bay Vista has filed a motion for sanctions, i.e., attorney fees in the amount of $25,000, which it has incurred in defending this appeal. As we discuss above, we determine Gildelatorre waived his right to appeal by executing the acknowledgement of satisfaction of judgment.

Swearing-ins

Monday's DJ reports Former State High Court Justice to be Sworn in as Ambassador, about an invitation-only event in Pasadena on Thursday where Former California Supreme Court Justice Carlos Moreno will be sworn in as ambassador to Belize. (His official swearing-in occurred May 31 at the State Department.)

Speaking of swearing-ins, click here for photos and an article about Friday's 9th Circuit shindig:

Ninth Circuit Convenes for Investiture of Judge Michelle T. Friedland

For a different kind of swearing article, see 

Contempt Charge Upheld For Atty's Foreign Profanity In Court