Brown Releases 2016 Judicial Appointment Data

Governor Brown Releases 2016 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 2016, Governor Brown appointed 356 judges – including 45 in 2016 – from a pool of more than 2,000 applicants. Over those six years, nearly 40 percent of Governor Brown's appointees identified themselves as American Indian or Alaska Native; Asian; Black or African-American; Hispanic; Native Hawaiian or Other Pacific Islander; or Other/Unknown. Last year, Hispanic appointees accounted for more than one in five judicial appointments.

From 2011 through 2016, Governor Brown's judicial appointees included a number of notable firsts:

- Yvette Durant, the first woman judge ever appointed to the Sierra County Superior Court.

- Richard T. Fields, the first African-American man appointed to the Fourth District Court of Appeal.

- Marco D. Nunez, the first openly gay judge ever appointed to the Imperial County Superior Court.

- Sonia Cortés, the first Latino judge ever appointed to the Yolo County Superior Court.

- Marsha G. Slough, the first openly gay justice in the history of the Fourth District Court of Appeal.
- Luis A. Lavin, the first openly gay justice to serve on the Second District Court of Appeal.
- Therese M. Stewart, the first openly lesbian justice to serve on the California Court of Appeal; 
- Ferdinand P. Inumerable, the first Asian-American judge ever appointed to the Ventura County Superior Court.
- M. Bruce Smith, the first African-American judge to serve on the Fifth District Court of Appeal.
- 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.

[3/1 Update: See the DJ's story Brown Continues to Diversify State Judiciary: Report Gives Brown High Marks on Appointments.]

The Demographic Data report is here.

LACBA ACS programs

The LA County Bar's Appellate Courts Section has some great upcoming programs.
First, on March 14, is the Phil Goar Night of the Roundtables (usual time and place, 4:30 to 6 pm in the employee lounge at the 2d Dist.): "This is an opportunity to hear directly from appellate court attorneys at the Second District Court of Appeal on topics of interest to all who practice before the court.  This program will offer four simultaneous roundtable discussions.  There will be a rotation half-way through the program in order to allow attendees to participate in two roundtable discussions." The tables this year are:

Preparing the Record: Tips and TrapsDiscussion leaders: Rashida Adams and Roumiana Velikova Ask a Writ AttorneyDiscussion leaders: Kendall Caudry and Tina Wong Publish or Perish: Will Your Case Last Forever?Discussion leader: Sharon Perlmutter Beyond Basic Briefs: Government Code Letters and MoreDiscussion leader: Laurie Taylor

On April 4 will be the Section's annual Supreme Court Luncheon with the Supremes and Justices of the Second District. The guest speaker is Ambassador David Scheffer, who will "discuss the challenges facing international criminal justice now and in the future, including: political support for the International Criminal Court, the creation of additional hybrid criminal tribunals, the difficulties that arise in complex trials of atrocity crimes, and the funding of such endeavors.  He also will describe his work on federal legislation to incorporate crimes against humanity into Title 18."

Also, on April 12 there will be a program on brief writing.

In other news, see Law360 on Supreme Court To Weigh 30-Day Deadline For Fed. Appeals about yesterday's grant of cert in Hamer v. Neighborhood Housing, SCOTUS 16-658, in which the 7th Circuit held that it lack jurisdiction over Hamer's appeal, even though the notice of appeal was filed late because the district court judge erroneously granted her an extension that went almost 30 days past the deadline.

Also, today is Cathy Catterson's last day as Circuit Court of Appeal Executive for the Ninth Circuit, after over 40 years of distinguished service to the judicial branch.

New Trial articles

In today's Appellate Zealots column in the DJ, Audra Ibarra presents New Trials and Untimely Affidavits, about Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, which asks "Can a court order a new trial based on an untimely affidavit?" The answer is yes: A non-jurisdictional rule may be waived; the deadline to file a new trial affidavit is not jurisdictional.

Don't confuse Kabran with Gibran...

And GMSR's Laurie Hepler and Alana Rotter present Tips: Critical New Trial Motion Deadlines, outlining the deadlines for a moving party's notice of intent (typically 15 days after service of notice of entry), the trial court's order granting a new trial (typically 60 days after service of the notice of entry), and the trial court's explanation of reasons (i.e., within 10 days after the new trial order). They also address Kabran, concluding, "if your opponent files affidavits late: object in the trial court, or forever hold your peace."

And, to answer a question that never seems to go away, check out Evaluating Speculation that the Ninth Circuit is the Lower Court SCOTUS Overturns the Most, for "a deeper look at the question of the relative frequency with which the Supreme Court overturns decisions from the various federal courts of appeals."

Can Appellate Outcomes Be Predicted?

Podcast: Can Appellate Outcomes Be Predicted? Sedgwick appellate specialist Kirk Jenkins "has compiled years of decisions by courts in Illinois and California, slicing the metrics every which way to create models that he contends give businesses a greater measure of predictability in litigation at every stage. He also blogs about trends he spots in the data, breaking down trivia like which California Supreme Court justices write the longest majority opinions in civil cases. In this interview, he explains how his model works, offers predictions on several important California Supreme Court cases, and explains why he sees analytics as the future."

[3/2 Update: See What's Next From the Calif. Supreme Court: A Data Junkie's Take]

2d DCA pro tem update

The following are currently sitting on assignment in the 2d DCA:

• Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until March 31, 2017.
• Judge Rupa Goswami of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until March 31, 2017.
• Judge Curtis Kin of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until March 31, 2017.
• Judge Sanjay T. Kumar of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until February 28, 2017.
• Judge Michael Small of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until March 31, 2017.
• Judge Douglas W. Sortino of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until March 31, 2017

Also of note: California Supreme Court justice ‘Tino’ Cuéllar to deliver Stanford’s commencement address.  

Yesterday's On the Move column in the DJ notes that Sheppard Mullin certified appellate specialist Karin Vogel, leader of the appellate practice group, has become a partner in San Diego.

California Needs Another Law School, State Legislator Says: Assemblywoman Sabrina Cervantes, D-Corona, introduces bill to create a law school at UC-Riverside

"Thinking outside the American appellate box"

That's the title of today's Moskovitz on Appeals column in the DJ, continuing a comparison of American versus British appellate procedures. Of particular interest is discussion of an experiment in the 3d District decades ago:

one California appellate court actually did adopt a modified version of the British practice. In 1981, the 3rd District Court of Appeal (in Sacramento) selected a handful of civil appeals (each had very few issues) for an "expedited" program that limited argument in briefs to 10 pages. Oral argument took place 30 days after the briefs were filed - with no limit on how long a lawyer could argue. Most of the lawyers were quite happy with it, because it cut brief-writing time and cut the time needed to prepare for oral argument (because the case was still fresh in their minds), resulting in savings to clients. And they were delighted that disposition time (from filing notice of appeal to ruling) dropped by over 40 percent. The judges liked it because the briefs were more concise and focused on the one or two issues that mattered, and the oral argument usually did not end up taking more time than the usual 30-minutes allotted for non-expedited cases. The judges found that the oral argument was conducted at a higher intellectual level, and the program did not increase the total time they spent on a case. See Chapper & Hanson, "Expedited Procedures For Appellate Courts: Evidence FromCalifornia's Third District Court of Appeal," 42 Md. L. Rev. 696 (1983). The program ended not from want of success, but because the judge overseeing it had retired.

Maybe it's time for another experiment. 

On Thursday, Feb. 23 (1 p.m. CST) DRI's Appellate Advocacy Committee presents Washington v. Trump: Insights from Appellate Specialists, a on-hour teleconference discussing proceedings in the 9th Circuit. "Hear nationally recognized appellate practitioners comment on the unique procedural posture of the case, discuss oral argument techniques employed by the advocates, and provide insight on the Judges’ questions and the argument as a whole." DRI's March webcast will be Appellate Counsel at Trial: Protecting the Record and Putting Your Best Foot Forward.

The 2d DCA's Justices webpage has finally been updated to remove APJ Boren, and now reflects vacancies in Divisions 2, 3, 5, and 7.

Is the 9th Cir. really a "Court in Chaos"?

Law360 reports Trump Slams 9th Circ. As Court In ‘Chaos,’ ‘Turmoil’, which begins: "President Donald Trump slammed the Ninth Circuit on Thursday as a court in “chaos” and “turmoil,” claiming at a news conference that the court has been overturned by the Supreme Court “at a record number,” ..." The article goes on to present a wealth of statistics showing that the Circuit is "not overturned the most." UCLA's Professor Patrick Goodman (who supervises UCLAw students handling appeals) is in the article too:

“It is baffling and frightening that an American president would think nothing of trying to tear down the legitimacy of the Ninth Circuit, merely because he lost this round in court," Goodman said. "But people hear what the president says and reasonably assume it to be true, and he knows it.  We are talking about the legitimacy of our system of government, and so this kind of precedent-setting trash talk is not only selfish but ultimately very, very dangerous.”

Reading & Viewing for the rest of the day!

The Winter edition of Appellate Issues (the publication of the ABA's Council of Appellate Lawyers) is available here. This is an appellate box of chocolates you will enjoy!

The U.S. Courts offers a video in honor of African American History Month, Moments In History: Remembering Thurgood Marshall.

The State Bar's Litigation Section presents the February issue of Litigation Update.

The NYT presents Older Judges and Vacant Seats Give Trump Huge Power to Shape American Courts. Currently, 112 of the 870 Article III judgeships are vacant. "Trump could fill more judicial vacancies than any first-term president in decades."

Also of note, Supreme Court makes Appointments to Commission on Judicial Performance: Justice Ignazio J. Ruvolo Reappointed.

The 2017 Civic Learning Award Winners (to celebrate public schools' commitment to teaching civics) have been announced (over 50 schools) and two (of the three) schools receiving Awards of Excellence are in SoCal: Eastman Avenue Elementary School in LA and Pacific High School in OC. Those schools will receive a visit from the Chief Justice of California!

Another Pregerson profile

Today's DJ profiles Judge Pregerson the Younger, i.e., Dean Pregerson (US District Judge Dean Pregerson's 20 years of rulings has changed lives, protected prisoners), son of 9th Circuit Judge Harry Pregerson. Deja vu? Today's DJ profile follows a profile by another DJ reporter just last month (Jan. 18, District Judge Dean Pregerson of Los Angeles on senior status, handling civil calendar). Before that there was one in 2007 (Feb. 12, For One Central District Judge, It's a Family Tradition).

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Q: How do you know when to petition for review?
A: When your decision contains one footnote pointing out a split of authority, and another footnote points out that any PFR would probably be granted and held pending a decision in a case on review. Like footnotes 2 and 3 here.
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Or another way to get to the Supreme Court may be a line like this (in an opinion today):
"Assuming the Skidmore holding still remains viable—a question we need not decide but which the Supreme Court might want to address...."
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"Ignorance of the law excuses no man -- from practicing it!" Addison Mizner

Defending the federal courts

• Today's DJ features Dean Chemerinsky in The Rule of Law, about how "One of the most basic aspects of the rule of law is that no one, not even the president, is above the law." He urges all those in the legal profession to condemn attacks on the judiciary.

• Similarly, the DJ runs Richard Hamar's articles 9th Circuit Deserves More Respect, about the Ninth Circuit, its history and statistics, and presidential disputes with courts. He too concludes that attorneys need to vigorously support the Circuit and the federal judiciary.

• Standing to appeal is usually a no-brainer. But for an example of an appeal dismissed for lack of standing, click here.

Elwood Lui in Line for Appointment as Div. Two's Presiding Justice

That's the story in today's MetNews about how 1/1's Justice Lui "is in contention for elevation to the post of presiding justice of Div. Two" to "replace Roger Boren, who retired without public announcement, on Jan. 31." If appointed to Div. 2, J. Lui will have service in Divisions 1, 2 and 3!

The DJ reports that at last week's ABTL-LA program, Justice Anthony Kennedy emphasized "the importance of civil discourse in preserving America's democracy and national identity in a time of global tumult, and in an era when technology allows people to bypass traditional institutions and structures like the press and speak directly to the masses."








"People look to America to see if freedom works, and if they see a hostile, fractious, divisive, inimical dialogue, they will not be impressed."




Also in today's DJ, Judge Milan Smith pens The Role of the Blue Slip, which notes the roughly 111 Article III vacancies on the lower federal courts, including four on the Ninth Circuit. He explains: "One of the few remaining procedural devices that can actually defeat a judicial nominee is the Senate Judiciary Committee's so-called 'blue-slip rule.'"

This is how it works. When the president nominates an individual to a U.S. district court or court of appeal, the Senate Judiciary Committee sends a letter on light blue paper to the two home-state senators (regardless of party) asking them to take a position on the nomination. The senators check off the appropriate box - either approve or disapprove - and the blue sheet of paper is returned to the staff of the Judiciary Committee. A negative blue slip (or the failure to return a blue slip) typically dooms a nomination, affording home-state senators a de facto veto over judicial nominees to seats within their state. 

If Grassley continues to honor the blue-slip rule, the Arizona, California, Hawaii and Oregon senators will each have significant influence on the selection of the individuals who will be nominated to fill the vacancies on the 9th Circuit. In its current incarnation, the blue-slip rule affords them a de facto veto over anyone that President Donald Trump nominates to judgeships within their respective states, rendering the need for pre-nomination consultation with home-state senators particularly important. As history suggests, however, the blue-slip rule could transform in an instant. The rule's character and existence fall within the discretion of the chair of the Senate Judiciary Committee. And, in this tumultuous political environment, few of the Senate's traditions appear to be immune from change. 

Finally, today's DJ also profiles LASC Commissioner Timothy Weiner. SCANworthy? You bet: The profile is titled An Appellate Veteran, LA County Commissioner Timothy Weiner Values Social Aspects of Job, and notes how he spent nearly his entire career in the state AG's office arguing and preparing appellate cases.

"It's very hard to get a sense or the feel of a courtroom from a cold record," Weiner said of his previous work. "One of the best parts of this job is getting to serve as the fact-finder because I get to make those credibility determinations, I get to observe people and their body language, how they're talking, who's representing their case." 

State Bar Litigation Section 9th Cir. webinar

An Inside Look
at Ninth Circuit Motion Practice

Friday, March 3, 2016, 12 noon - 1 p.m.

This program offers 1 hour participatory MCLE credit and 1 hour legal specialization credit in Appellate Law

 This webinar will give both new and experienced attorneys a comprehensive overview of motion practice in the Ninth Circuit Court of Appeals, insights into how motions are decided, and important tips for crafting and opposing motions. Two of the presenters have handled motions both as Ninth Circuit Staff Attorneys and as practitioners before the Court, and the other presenter currently serves as a Staff Attorney in the Motions Unit at the Court. Speakers: Kathleen Boergers, Jessica Perry and Leah Spero

You must register in advance to participate

Confirmation hearings! Webcast to begin at 10:00 a.m.

Hearings on Three Appointments to Courts of Appeal to be webcast starting @ 10:00 a.m.

Click here to watch the Dato, Fields, Meehan hearing.

Afternoon update from The Recorder: Commission Confirms Three Calif. State Appeals Judges:

The Commission on Judicial Appointments unanimously approved the nominations of San Diego County Superior Court Judge William Dato and Riverside County Superior Court Judge Richard Fields to the Fourth District Court of Appeal. Fresno County Superior Court Judge Kathleen Meehan was confirmed on a 3-0 vote to the Fifth District Court of Appeal.

[2/10 update: The DJ has Justices Confirmed Easily to State Appellate Court]

"Former Riverside County Superior Court Presiding Judge Sherrill A. Ellsworth called Fields, a former colleague, a prolific worker and eater. "As long as you feed the beast, he will work like a beast," Ellsworth said. "I could not recommend anyone higher than I recommend my friend Rick Fields."

Appellate grab bag...

The Recorder offers: Why the Ninth Circuit Should Not be Split.

The DJ presents 9th Circuit Stream Most Watched in Court History, about how over 136,000 people watched the travel ban argument. Judge Kozinski, who made streaming arguments available when he was chief judge, said, "It is rewarding to find out people actually use them. If nobody watched, I would be disappointed."

The DJ also features CAFA Conundrum: Diversity is What Counts, by Reed Smith appellate specialists Jim Martin and David de Jesus, about the controversy over the scope of CAFA's appellate review provision, and noting that the 9th Circuit recently joined "the 5th, 6th, and 8th Circuits in holding that CAFA's appellate review provision is limited to remand orders where a party claims diversity jurisdiction under CAFA" in Chan Healthcare Group, PS v. Liberty Mutual Ins. Co., 844 F.3d 1133 (9th Cir. 2017).

And see in the DJ Lawyers Form Jazz Music Group, Enjoy Fun, Friendship, about the quartet known as the Singers-in-Law, which plays at many local bar events, sometimes accompanied on the piano by PJ Gilbert, whose wife Barbara is one of the quartet. See them next at Vitello's in Studio City on March 3. (Yes, that Vitello's.)