Cal Supreme Court trivia game!

SCOCA blog has posted the following fun game:

A trivia challenge for the SCOCA staff attorneys

Judicial staff attorneys are talented public servants who dedicate their lives to quiet service behind the scenes. To celebrate California’s reopening and give them a bit of post-pandemic fun for the upcoming holiday weekend, we prepared a SCOCA justices trivia quiz.

We will post the answers on Fri 30 Jul 2021, so anyone can play along. Having researched our answers and checked them with authoritative sources (be nice to your local law librarians!) we are confident in their accuracy. But we’re good sports and truth seekers, so if the staff attorneys can demonstrate that their answer to a question is more right than ours, we will concede that in the answer article.

The questions:
1. The only justice to serve on the United States Supreme Court.
2. The only justice born in 1700s.
3. The first justice born in the 1900s.
4. The longest serving justice.
5. The youngest justice when appointed.
6. The shortest tenure as Chief Justice.
7. What number Chief Justice is the current Chief Justice?
8. The current justices who share a birthday (in different years).
9. The only justice elected without his knowledge after being nominated in absentia while traveling in Europe.
10. The only member of the 5-member court retained for the new 7-member court.
11. The justice seated after the longest vacancy.

12. The only two siblings to serve as justices.
13. How many individuals have served as justices?
14. The only justice to serve three separate, distinct terms.
15. Two justices who died on the same day.
16. The first justice with a verifiable law degree.
17. The last justice who never earned a law degree.
18. The most justices earned law degrees from this school.
19. This justice’s father founded the Alaska Commercial Company.
20. This justice cofounded the Sierra Club (and was later expelled from the Sierra Club).
21. Bonus question, for the win: The only justice to stab a man (who lived), shoot a man (who died), and be shot dead by a federal marshal. (If you get this wrong you all must resign in shame.)

The rules:
Only current SCOCA judicial staff attorneys (chambers and central) may participate.
You may collaborate among each other, and you must produce one set of answers.
You must use only your personal knowledge — no research.
You must email your answers to David A. Carrillo by noon PDT on Fri 23 Jul 2021.

Farewell to 2/8's PJ Bigelow

Today's MetNews has Justice Tricia A. Bigelow: A Distinguished Jurist Leaves the Bench by retired LASC Judge Lance Ito, which begins:

T

oday a family’s cross generational contribution to our judicial system comes to a close with the retirement of Presiding Justice Tricia Bigelow from Division 8 of the Second Appellate District. Tricia Bigelow, Trish to her friends, is the daughter of the late Ross Bigelow who served on both the Los Cerritos Municipal Court and the Los Angeles Superior Court.

And the article ends:

Like her dad, Trish will likely join the upper echelon of the private adjudication industry; however, her departure from the bench is a loss to the public at large.

9th Cir. nominee

Law360 reports: Biden's New Judicial Picks Include Noms For 4th, 9th Circuits, which notes:

The Ninth Circuit choice is Jennifer Sung, a former union organizer and labor lawyer who was appointed to the Oregon Employment Relations Board in 2017. She previously was a partner at McKanna Bishop Joffe LLP after working at Altshuler Berzon LLP, a union-side labor firm that once included Ninth Circuit Judge Marsha S. Berzon, who recently opted for senior status. ... Sung also worked two years at the Brennan Center for Justice at New York University School of Law and five years as a Service Employees International Union organizer. She clerked for Ninth Circuit Judge Betty Binns Fletcher after earning degrees from Yale Law School and Oberlin College. The White House said Sung would be first Asian American judge from Oregon on the court.

Law.com's story is Labor Lawyers, Judges and Ex-Prosecutors Among Biden's Latest Judicial Picks.

Bloomberg Law has Biden’s 9th Circuit Pick Has Union Support, Labor Law Chops

Also, The Presidential Commission on the Supreme Court of the United States has a hearing today. Details here.

Today's DJ has its 2021 Top Labor & Employment Lawyers insert, which includes appellate lawyers Jesse Cripps, Norm Pine, Michael Rubin, Felix Shafir, and Scott Tillett.

And At the Lectern shares: The Spring/Summer 2021 Review of the California Supreme Court Historical Society has reached mailboxes and is available online.

Role of Appellate Courts

Can appellate courts in juvy cases "receive and consider postjudgment evidence that was never before the juvenile court, and rely on such evidence outside the record on appeal to reverse the judgment"? See 4/2's published opinion with dissent in In re A.C. 

{Insert joke here about a summer opinion titled In re A.C. from Riverside must be about Air Conditioning!} For real analysis see Prof. Martin's post here.

Also published on Friday is an anti-SLAPP fees appeal affirming an award of $146K here.

And how about this unpub? Appeal is frivolous, but no sanctions against pro per appellant: "While generally speaking [pro per appellant] is held to the same standard as an attorney, his demonstrated lack of knowledge of basic legal principles is a marginal excuse for pursuing this meritless litigation."

Smile, SCOTUS!

 Law360 reports 7th Circ. Pick OK'd As Senate Pushes Cameras in High Court about:

 the full Senate along mostly partisan lines voted 53-40 to approve Candace Jackson-Akiwumi for the Midwest appeals court, covering Illinois, Indiana and Wisconsin.

the Senate Judiciary Committee cleared the bipartisan Cameras in the Courtroom Act, sponsored by the committee's chairman, Dick Durbin, D-Ill.; ranking Republican Chuck Grassley of Iowa; and Sens. Amy Klobuchar, D-Minn.; and Richard Blumenthal, D-Conn.

The bill, which passed the committee 14-9 and will now go the Senate floor, requires the Supreme Court to permit television coverage of all open sessions of the court "unless it decides by majority vote that allowing such coverage in a particular case would violate the due process rights of any of the parties involved," according to a congressional summary.

Supporters said it would be healthy for U.S. democracy for U.S. citizens, beyond the few who are able to obtain seats for oral arguments in Washington, to witness the high court in action. However, some judiciary members voiced reservations, including Sen. Ted Cruz, R- Texas, who contended that video feeds could be problematic by casting arguments in a political light.

2d DCA pro tems!

 The following are currently sitting on assignment:

• Judge Charles S. Crandall of the San Luis Obispo Superior Court, will be sitting Pro Tem in Division One from July 1, 2021 until August 31, 2021
• Judge Upinder S. Kalra of the Los Angeles Superior Court, will be sitting Pro Tem in Division Three until July 23, 2021
• Judge Brian E. Hill of the Santa Barbara Superior Court, will be sitting Pro Tem in Division Three from July 19, 2021 until September 30, 2021
• Judge Holly A. Thomas of the Los Angeles Superior Court, will be sitting Pro Tem in Division Three until July 31, 2021
• Judge Melissa R. McCormick of the Orange County Superior Court, will be sitting Pro-Tem in Division Seven until July 16, 2021
• Judge Audra Ibarra of the Santa Clara Superior Court, will be sitting Pro-Tem in Division Seven from June 28, 2021 until August 31, 2021
• Judge Sam Ohta of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until August 31, 2021
  
• 
  
  

Back to court in 4/1!

Effective August 2021, the Fourth District Court of Appeal, Division One, is restoring in-person arguments in light of updated state and local public health guidance permitting the relaxing of certain COVID-19 safety protocols. In accordance with state and local public health guidance, face coverings in the courtroom will be optional for parties who are fully vaccinated. Those who are not fully vaccinated are required to wear face coverings in the courtroom. While in-person argument will return as the default method of appearance, parties may request to appear remotely.  Until further notice, the courtroom is open only to those parties presenting oral argument.

Appellate contempt ruling questioned

The MetNews has Lawyer Asks State High Court to Relieve Him of Contempt Adjudication by Appeals Panel, which reports about a writ petition to the Supreme Court challenging 4/3's published opinion in In re Mahoney.

Destructive appellate news

Rips & Blasts?! The press is feeling destructive today, with headlines like these:

• Calif. Judge Rips Monsanto's Atty In $87M Roundup Appeal
• Ex-Reinhardt Clerk Blasts 'Inaction' Over Sexual Misconduct
• Clerk Who Said Appeals Judge Harassed Her Blasts ‘Inaction’

The latter two stories are about Olivia Warren, a staff attorney at the Center for Death Penalty Litigation, who "clerked for the late Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit in 2017 and 2018 and alleges he sexually harassed her. Warren said she hoped her decision to speak publicly about her experiences would “light a torch” for someone to do something."

“I am not aware of anyone taking any steps, much less the ‘bold steps’ over half of Reinhardt’s clerks called for—not the Ninth Circuit, not the federal judiciary, not Congress, not Harvard Law School, not any of the Reinhardt clerks themselves,” Warren said. “To my knowledge, there have been no public conversations about or reflections upon individual actions and inactions that might have contributed to the problem.”

So true!

4/1's Justice Dato gives a nice opening line in this unpub today:

Nonlawyers who represent themselves in a civil case involving complicated legal principles are usually at a considerable disadvantage, as would be anyone attempting to perform a complex task without the necessary training, education, and experience. This case sadly illustrates these perils in the anti-SLAPP context.

 

Law.com appellate stories

Law.com reports: 

• Federal Circuit to Restart In-Person Arguments in September, With Some Restrictions In Place -- Only a limited number of people will be allowed in the courtroom and the circuit will keep livestreaming arguments “until further notice.”
• Virtual Judicial Clerk Interviews Seem Likely to Stick Around as Federal Judges' Hiring Plan Gains Momentum
• Some federal judges have said they prefer the convenience of interviewing clerkship candidates online and have indicated they will continue that practice after the pandemic subsides.



Feedback from judges has been largely positive, said Chief Judge Sidney Thomas of the U.S. Circuit Court of Appeals for the Ninth Circuit, who is one of the original architects of the current plan and sits of the ad-hoc committee of judges who are coordinating the effort.

RIP Appellate Legend Charlie Bird (1947-2021)

Appellate Legend Charles A. Bird has died. A past president of AAAL & CAAL, he was a brilliant, generous, and kind-hearted "gentleman and scholar" of the classic mold, a forceful and provocative advocate (both pragmatic and idealistic), whose appellate wisdom and impact will be missed throughout California and nationally. His forthcoming magnum opus, Advanced Topics in Appellate Practice is scheduled for publication later this year.

• American Academy of Appellate Lawyers, Fellow & Past President
• California Academy of Appellate Lawyers, Member & Past President
• California Commission on Judicial Nominees Evaluation, Past chair and commissioner
• Clerk for Hon. Robert Boochever, Supreme Court of Alaska, 1973-1974 (later Ninth Circuit judge) 
• Held spots on many nonprofit boards, presidencies (Appellate Defenders and Federal Defenders of San Diego and Habeas Corpus Resource Center)
• California Lawyer Magazine Lawyer of the Year, 2004-Appellate
• Distinguished service awards from at least seven bar and community service organizations
• San Diego Legal Professional of the Year (2002)
• UC Davis: BA (1969 highest honors) J.D. (1973 coif/Law Review/Moot Court)
• Sample Publications: Objective Analysis of Advocacy Preferences and Prevalent Mythologies in One California Appellate Court (2002) 4 J. Appellate Practice & Process 141; California Appellate Practice Handbook (4th ed. 1992, contributing author) (5th ed. 1995) (6th ed. 1998) (7th ed. 2001, contributing author and editor).
• Charlie was especially proud of his SCOTUS Amicus Curiae Brief of 36 Appellate Lawyers in Trump v. Hawaii.

[6/23 Update: the DJ's Obit is Charles A. Bird, 1947-2021: Skilled, influential attorney was 'institutional glue' at Dentons and appellate law groups.]

JNE evaluating OCSC Judge Sanchez for 4/3

The State Bar of California's Commission on Judicial Nominees Evaluation (JNE) is investigating the qualifications of OCSC Judge Maurice Sanchez for the Fourth District Court of Appeal (Div. 3).

Sanchez had been a partner at Nelson, Mullins, Riley & Scarborough; a partner at Baker & Hostetler; a shareholder at Alvarado, Smith & Sanchez; and managing counsel at Mazda Motor of America Inc. He was senior counsel at Hyundai Motor America; and an associate at Rutan & Tucker. His J.D. is from Berkeley School of Law and his B.A. from UCI.

Where big "awards go to die"?

The Recorder has How Gibson Dunn Got the $3B Jury Verdict in 'HP v. Oracle' to Stand Up on Appeal, which begins: "Appellate courts are often where multibillion-dollar damages awards go to die."

And for a nice shout-out to the Cal Supremes, see Prof. Martin's blog post today here.

SCOTUS in Focus program

The Ninth Judicial Circuit Historical Society and Northern District Practice Program present:
SCOTUS IN FOCUS
Wednesday, June 23rd, 2021
4:00 PM PST | Platform: Zoom
Registration $25*; includes 1.0 CLE
*Court personnel and law students may register free of charge

Join us as the incomparable Strict Scrutiny podcast team of Leah Litman, Melissa Murray, and Kate Shaw brings their intelligent and in-depth legal analysis of the Supreme Court and the surrounding legal landscape to the Ninth Judicial Circuit Historical Society. What were significant cases from this term and what might we expect from the Court going forward? How might the Biden Commission’s work compare to New Deal efforts at Court-packing, which ended with the “Switch in Time that Saved Nine”? Come find out!

You don't see this every day!

Today the 6th District publishes The Superior Court of Alameda County v. County of Alameda, about funding for court security. All very interesting stuff; but footnote 6 was especially interesting in terms of how (and by whom) this case was tried and (where it gets) appealed:

Due to special statutorily mandated procedures, this action was heard by a Second District Court of Appeal justice [2/6's Justice Perren] acting as the trial court, and the appeal was assigned to this court even though the action was brought and adjudicated in Alameda County. (§ 69926, subd. (e)(2), (e)(5).)

New Federal Holiday Tomorrow

Operating Status on June 18, 2021

The United States Court of Appeals for the Federal Circuit will be closed on Friday, June 18, 2021, in observance of Juneteenth National Independence Day, pursuant to Federal Rule of Appellate Procedure 26(a)(6). For purposes of computation of time and motions to enlarge time under Rule 26 of the Federal Rules of Appellate Procedure and Federal Circuit Rules, June 18, 2021, is a “legal holiday.” All filing deadlines for Friday, June 18 are now due on Monday, June 21, 2021.

The Ninth Circuit's notice is here: Operating Status on June 18, 2021--The United States Court of Appeals for the Ninth Circuit will be closed on Friday, June 18, 2021, in observance of Juneteenth National Independence Day, pursuant to Federal Rule of Appellate Procedure 26(a)(6). For purposes of computation of time and motions to enlarge time under Rule 26 of the Federal Rules of Appellate Procedure and Federal Circuit Rules, June 18, 2021, is a “legal holiday.” All filing deadlines for Friday, June 18 are now due on Monday, June 21, 2021.

The DJ reports: Federal courts will be closed Friday in recognition of Juneteenth, just one day after President Joe Biden signed a bill recognizing the holiday marking the end of slavery. Several law firms have also said they will close. The California Court system will remain open.

Cal Supreme Court Survey

To assist the California Supreme Court in reconstituting post-pandemic court operations, we appreciate your help and input in completing an online survey using the link provided below. We estimate that this survey will take 7 to 10 minutes to complete. We would greatly appreciate it if you could complete the survey at the link below no later than June 30, 2021. Please feel free to share the link with other colleagues and associates who also practice before the California Supreme Court:
https://forms.office.com/Pages/ResponsePage.aspx?id=iqDPEBdbj06iRROQYug53P6w7HZnz1hOuxS1gXGl-fVUMlRNMUlVV1VPS1dORVI2Q1hVRUpTM1hHRS4u

Your individual answers will be kept confidential, will be shared anonymously with court staff only to assist in developing and deciding final policies, and will not be retained thereafter.

Report of JA settlement

The MetNews has Newspaper Reports Pay-Out to Alleged Victim of Ex-Justice -- State Pays $250,000 Based on Sexual Harassment Claim of Judicial Assistant by Jeffrey Johnson (SD U-T article here)

AJEI 2021 (Austin, TX)

Registration is now open for

2021 Appellate Judges Education Institute Summit
November 11 – 14, 2021
Hyatt Regency, Austin, Texas

 

Register now for the 2021 AJEI Summit, the nation’s premier appellate educational event, to be held this year in Austin, Texas. Typically attended by almost 400 appellate judges and practitioners, the Summit will feature 20+ panel discussions on emerging trends, challenges, and legal issues affecting appellate practitioners and the judiciary. 

Visit the AJEI 2021 Summit webpage

Session topics include:

• Courage: The Seminal Virtue in Advocacy and Judging
• Page-turners: How Judges Read in an E-filing Era
• Top Tips for Top-Notch Oral Argument Answers
• Managing Stress and Strengthening Resiliency: Practical Strategies for Judges and Lawyers
• The Ethics of Building and Growing an Appellate Practice
• Supreme Court Preview
• Clients in the Courtroom: How In-House Counsel View Appeals & Appellate Courts
• Hidden Cause, Visible Effect: Understanding the Supreme Court’s Shadow Docket
  and so much more...

Visit the 2021 AJEI Summit page for the latest information.

Californians on the speaker list include Dean Chemerinsky and Ninth Circuit Judge Callahan.

4/1's Post-Pandemic Survey

Fourth District Division 1 is seeking input on post-pandemic oral argument procedures. Click HERE to complete the survey.

Law360 roundup & more

Law360 has some key appellate news today:

High Court Contender Jackson Confirmed To DC Circ. The Senate on Monday narrowly confirmed Judge Ketanji Brown Jackson to the D.C. Circuit, with three Republicans joining Democrats to elevate the potential future U.S. Supreme Court candidate to the "second-highest court in the land."

[Bloomberg Law has Jackson confirmed to D.C.  Circuit, First Biden Appellate Judge -- Jackson, 50, is the ninth Black woman to become a federal appellate judge. ]

Justices Say Appeals Courts Can Look Outside Trial Record
The U.S. Supreme Court ruled Monday that an appeals court reviewing a case for plain error based on an intervening high court decision can reach outside the trial record and look to the entire record in a case.

Justices' Financial Disclosures Reveal Book Sales, Inheritance
The U.S. Supreme Court justices have released their financial disclosures for 2020, revealing the year's most successful book author on the court and another justice's seven-figure inheritance.

CLA Litigation Section's Monthly Litigation Update is available here.

Podcast interview with 10th Cir. Judge

Tim Kowal and Jeff Lewis have posted The California Appellate Law Podcast (S1E12) The Science and Rhetoric of the Written Word: an Interview with Judge Robert Bacharach (10th Circuit). Judge Bacharach has published a new book on legal writing and on the podcast he discusses his thoughts on writing, the courts, access to justice, and other issues. 

Tales of the 9th Circuit

Circuit Executives Celebrate 50^th Anniversary of Office - Part II recounts some tales of the 9th Circuit:

Cathy Catterson grew professionally as the circuit executive office matured. She started work at the Ninth Circuit as a deputy clerk in 1979, was appointed clerk in 1985 and, at age 33 and as a female, that was “kind of a big deal,” she said. “But I was a known quantity and, I’d like to think, had earned the respect of staff and judges.” She was appointed circuit and court of appeals executive in 2007, a spot she held until she retired in 2017, after almost 40 years in the judiciary.

Catterson said the work of OCE is hidden to most judges and judiciary employees, “because those folks’ duties and functions revolve around the mission of the court – to decide cases. CE’s offices are a support function; to assist the courts in accomplishing that mission effectively. “I think those who are exposed directly to and get involved in circuit activities have a better understanding of the role of the CE’s office,” she said.

The Ninth Circuit has suffered under emergency situations before. Catterson’s emergency was the 1989 Loma Prieta Earthquake in Northern California which “presented numerous challenges,” she said. “That was well before the time of electronic filing, though we did have an electronic docket at the time, thankfully, so at least we could try and track cases, somewhat.” Among her most memorable moments of that disaster was “watching the red tag being tacked on the front door of what is now the James R. Browning United States Courthouse. We were out of that building for seven years.”

The ensuing challenges included “setting up a temporary courtroom in the Hastings Law School student resident building with the smell of washers and dryers permeating the air,” and “having our court offices split over six buildings in the Civic Center area, with my own office above Carl’s Junior for two years, and the file room in an old ballroom across the street where a large snake had made his home,” Catterson said. The building was fully retrofitted with state-of-the-art earthquake resistant features and re-opened in 1997.

...

Elizabeth A. “Libby” Smith, circuit executive of the Ninth Circuit, has been in her role for four years. She holds a master’s degree in business information technology and was appointed circuit executive in early 2017, following an eight-year stint as clerk of court for the District of Idaho.

Like most, if not all, circuit executives, Smith had deep experience in the courts prior to taking the circuit executive role. She assumed the clerk post in Idaho in 2009, served as the chief deputy clerk for the U.S. District Court for the Eastern District of Michigan from 2006 to 2009 and was the deputy court administrator for the Sixth Judicial Circuit Court from 1999 to 2006. Prior to that, Smith held administrative posts in both federal and state courts in her native Michigan.

Smith’s contributions to the federal judiciary were recognized in 2016, when she was selected as one of three recipients of the Administrative Office of the U.S. Courts’ Director’s Award for Outstanding Leadership, the highest honor for judicial branch employees.

All her experience made transiting to her current role easy. “It was extremely helpful having been with the Circuit as a district and bankruptcy clerk,” Smith said. “Having relationships with all of the chief district judges, chief bankruptcy judges and clerks, most of the probation and pretrial services chiefs, the chief circuit judge and others, sure helped me to hit the ground running.”

The breadth of Smith’s contacts illustrates the importance of interpersonal relations in the circuit executive role. “Molly (Dwyer, clerk of the court, Ninth Circuit) and I share a very close relationship and I would say that we co-lead from an administrative standpoint,” said Smith, “with Molly having the inward facing work as the clerk for the largest court in the country, and me with the outward facing for all courts within the circuit, including the court of appeals.”

Those relationships extend upwards, as well. “High on the coolness factor is being able to work with our circuit justices,” the U.S. Supreme Court justice that liaises with each court, said Smith. She has a photo of herself between retired Associate Justice Anthony M. Kennedy and Associate Justice Elena Kagan, who is now the circuit’s justice. “Additionally, twice a year the circuit executives, chief circuit judges, district judge representatives to the Judicial Conference of the U.S. (JCUS), and chairs of the JCUS committees are invited to a reception at the U.S. Supreme Court (and) I have met and spoken with nearly all the justices during these occasions or at other events.”

The Ninth Circuit is the largest circuit geographically and in terms of the number of cases handled. One element of the Ninth Circuit stands out in comparison to other circuits. “The Ninth Circuit has four Outside the Continental United States (OCONUS) courts, two being territorial courts in a time zone which is 17 hours ahead,” said Smith.

The circuit manages the Department of the Interior grant that funds the support and training of judges, justices, clerks of court and others within the Pacific Islands, said Smith. That district includes American Samoa, Guam, the Commonwealth of the Northern Mariana Islands and the former Trust Territories of the Federated States of Micronesia, the Republic of the Marshall Islands and the Republic of Palau. Palau is over 9,000 miles from the U.S. No other circuit oversees such distant judiciaries.

Like all of her peers, Smith said the best part of her job is “all of the wonderful people I get to work with within the circuit, across the nation, and at the Administrative Office. That includes our stakeholders and partners in other agencies, the bar and others.”

Smith manages one of, if not the biggest OCE staff in the country, with 44 employees. “Our staff support the nearly 500 judges, 61 courthouses and 43 other facilities, 39 chief judges at district level and over 60 court unit executives, within the circuit,” said Smith. “I sometimes refer to the relationships between the courts and the circuit as being ‘extended court family.’”

The professionalism of individuals is critical to the whole. “Many of our staff have court or AO experience with the state or federal courts and/or specialized experience, e.g., architects, project managers, IT professionals, HR and finance professionals, lawyers, paralegals, trainers and others,” said Smith. “I describe our role as being “consultants” for the judges, CUEs and others within the Circuit.”

“Through our conferences, committees, working groups, programs and training opportunities, judges and staff at all levels have an opportunity for their voice to be heard. A few of the disparate programs and committees that come to mind include the 2015 Corrections Summit, which brought federal and state corrections officers together for the first time; the Jury Trial Improvement Committee, the IT Committee, the Committee on Workplace Relations and the Ninth Circuit Fairness Committee.”

Like her peers, Smith thrives on the complexity and variety of her responsibilities. “This is the most challenging and fulfilling position I will likely ever hold. I get to fulfill my personal credo which is to strive each day to be my best self, so that I might be of service to others,” she said. “That fulfillment comes from a combination of where I am in my professional career – hopefully at the top of my game, being able to serve in this executive role for an institution with such an incredible history, brilliant jurists, leaders and employees, and every day being presented with new challenges and opportunities. I am so very fortunate for infinite reasons,” Smith said.

Don't rant... "This isn't some New Age civility initiative"...

What makes for a bad rehearing petition and contempt sanctions?? Well, how about a petition in which counsel cites...

not a single statute or opinion and made no attempt to explain, distinguish, or otherwise reply to the cases and statutes relied upon by the trial court and this one. Instead he filed nine pages of text that more closely resembled a rant than a petition.

The court  provided a chance for contrition, but the lawyer "doubled down" on insinuating that "political clout accounted" for the trial and appellate courts' rulings. Key bits from the opinion:

this would serve as a perfect exemplar in any law school class in which the instructor was attempting to illustrate the phrase “impugn[] the integrity of the court.”

This kind of over-the-top, anything-goes, devil-take-thehindmost rhetoric has to stop.

If you think the court is wrong, don’t hesitate to say so. Explain the error. Analyze the cases the court relied upon and delineate its mistake. Do so forcefully. Do so con brio; do so with zeal, with passion. We in the appellate courts will respect your efforts and understand your ardor. Sometimes we will agree with you. That’s why you file a petition for rehearing – because they are sometimes granted.

But don’t expect to get anywhere – except the reported decisions – with jeremiads about “society going down the tubes” and courts whose decisions are based not on a reading of the law but on their general corruption and openness to political influence.

We publish this decision as a cautionary tale. The timbre of our time has become unfortunately aggressive and disrespectful. Language addressed to opposing counsel and courts has lurched off the path of discourse and into the ditch of abuse. This isn’t who we are.

We are professionals. Like the clergy, like doctors, like scientists, we are members of a profession, and we have to conduct ourselves accordingly. Most of the profession understands this. The vast majority of lawyers know that professional speech must always be temperate and respectful and can never undermine confidence in the institution. Cases like this should instruct the few who don’t.

[The MetNews and Law360 also have now covered this:  Attorney Hit With Criminal Contempt Over Calif. Courts 'Rant' In a tone reminiscent of a college lecture hall — or perhaps high school detention — a California appeals court held a Claremont attorney not just in contempt of one court, but apparently in contempt of the entire state court system.]

[The DJ's 6/16 story story is Lawyer held in contempt for implying justices were corrupt]

Appellate Misadventures

Misadventures In Lawyer: Wrong Case, Wrong Court, Wrong Everything, on David Lat's Original Jurisdiction, covers this weeks' three appellate nightmares, including two already covered on this blog (flipping the bird during oral argument; massively screwing up a notice of appeal). But he leads with a third from here in the 9th Circuit about a lawyer who had two different appeals and began arguing the wrong one. Watch it here and cringe.

[ABA Journal has Several minutes into 9th Circuit online hearing, lawyer realizes he's arguing the wrong case]

Of note today, enjoy this opinion from 2/8, which starts out reading like a Justice Wiley decision (which it is) except it's a lot longer than his usual. (A choice quote: "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.") APJ Bigelow concurs in the judgment, but objects that the majority opinion covers too much unnecessary ground. She writes:

I write separately because I would decide this case on the issues as raised by the appellate briefs and the trial court’s ruling. .... I would resolve this matter without using this case as a platform to discuss requirements contracts and without providing a lengthy exposition on the topic, especially given the contract was never referred to as anything other than a service contract and the issue was never briefed in the trial court or on appeal. ....  I would avoid these matters that are not necessary to resolve this dispute, were not discussed below, were not relied on by the trial court in its ruling, and were not argued on appeal.

A great quote!

"Not being a jerk is a cardinal rule of appellate practice." -- Sarah Harris in Rising Star: Williams & Connolly's Sarah Harris

Here's a fun 8th Circuit order dismissing appeals because:

“These notices of appeal are entirely deficient. They appeal an order entered on a day when no order issued, from a district court that does not exist, to a court of appeals that does not exist.” (The NOAs purported to appeal to "the United States Court of Appeals for the Southern District of Missouri.")

Justice Benke to retire July 31

Justice Patricia D. Benke to Retire from Fourth District Court of Appeal

Associate Justice Patricia D. Benke of the California Court of Appeal, Fourth Appellate District, will retire on July 31 after a 34-year career in Division One.

In 2018, she was one of five members selected for inclusion in the San Diego County Bar Association’s “Legends of The Bar, 2018” project.

From her early childhood in Pennsylvania, Justice Benke knew she would pursue the law. She took a brief detour as a student at San Diego State University to work as a production assistant for KPBS public television. There she was called upon to help produce and appear as an interviewer for such luminaries as Jacob Bronowski, writer and narrator of the thirteen-part BBC series, The Ascent of Man. She went on to attend the University of San Diego School of Law, serving as the managing editor of the Law Review, and graduating in 1974.

After graduation, Justice Benke joined the rapidly expanding State Attorney General’s office in San Diego. Within her first year, she argued before the California Supreme Court. She went on to appear multiple times before the state Supreme Court and in appellate courts throughout the state. She also assisted in the preparation of cases and issues bound for the United States Supreme Court. While a deputy attorney general, she tried multiple cases for the Office of the San Diego County District Attorney.

One newspaper article notes that Justice Benke’s rise through the court system was meteoric. In 1983, Governor George Deukmejian appointed her to the San Diego Municipal Court, and two years later she was appointed to the San Diego Superior Court. While still on the superior court, Justice Benke was, at the age of 37, considered for appointment to the California Supreme Court, which generated headlines throughout the state.

In 1986, Justice Benke was appointed to the Court of Appeal, Fourth Appellate District, in San Diego. She was 37 years old and had the distinction of being the first woman appointed to Division One. As the court clerk confirmed, she was at the time the youngest person ever appointed to the Court of Appeal in California. The following year she was again considered for the California Supreme Court.  

Justice Benke’s many judicial activities include appointment to the Judicial Council of California, a statewide body charged with improving the administration of justice. She also served on judicial advisory boards, including the Appellate Indigent Oversight Committee, which advises on policy and audits the state’s multimillion-dollar appellate indigent defense budget. 

Throughout her legal career, Justice Benke has maintained interests beyond the law. She has always enjoyed the world of literature and writing. In 2017, she published a book of short stories centered in Pennsylvania’s immigrant communities. The book reviewer for the San Diego Union-Tribune included it in his list of the 10 books recommended for reading that spring. The book won both a national Hoffer Award and San Diego Book Award for short story collections. Justice Benke also enjoys all things equestrian. She sponsored "Noodles," her beloved thoroughbred polo pony turned children’s therapy horse, at Helen Woodward Animal Center until he retired.

Among her recognitions, Justice Benke in 2007 received the Distinguished Alumni Award from the University of San Diego School of Law. She was the first recipient of the Napoleon A. Jones Jr. Award for Judicial Excellence, presented by the Earl Gilliam Bar Association. The award recognized “Distinguished Service to Justice and Commitment to Diversity and Community Service.” 

Justice Benke is a strong advocate of second career and military education. She is an adjunct professor at National University.

Administrative Presiding Justice Judith McConnell said: “Justice Benke has had a long and distinguished career on both the trial and appellate courts and her hard work and collegiality will be deeply missed.”

[The DJ's story is Justice to retire from 4th District after 34 years on bench -- At 37, she was among the youngest ever tapped for the appellate court and had a chance to grow into her role on the bench much earlier than most.]

A pellet case

Law360 has Too Late To Change Hormone Pellet Complaint, Ill. Panel Says -- An Illinois state appellate panel said Friday that a woman was correctly denied a chance to amend her complaint seeking to hold a hormone therapy company liable after she developed and was treated for cancer allegedly caused by hormone-infused pellets.

Why do we care? This calls to mind a story that goes like this: Neighbor to mother-in-law: "What sort of lawyer is your son-in-law?" MIL: "He's an appellate lawyer." Neighbor: "Oh, interesting. What sort of pellets?"

Appellate roundup

Today's DJ has three of its usual appellate columns:

• Under Submission has PJ Gilbert's column Revelations III, where he expresses his distaste for the abbreviation "SCOTUS," but then proceeds to "reluctantly use the detestable abbreviation to avoid repeating the Supreme Court of the United States," which is a mouthful.
• Moskovitz on Appeal, titled Tenacity, sharing some war stories about Don Jelinek.
• Appellate Zealots has Charles Kagay's If Your 998 Offer Goes Wrong in Trial Court, All Might Not Be Lost

Law360 has When Your 9th Circ. Case Needs California High Court Input, by Buchalter's M.C. Sungaila, Joshua Ostrer and Lauren Jacobs.

Also of interest on Law.com: Hugo Black's Law Clerks Fought to Protect His 'Little Piece of Eden' -- Their goal was to protect Black’s home from renovation plans submitted by the current owner and approved by Alexandria’s City Council.

Trade names for law firms

Now that trade names for law firms are allowed, sometimes counsel listings are like this one here, which pits "The Litigation Practice Group" against "The Appellate Law Firm"!

O tempora, o mores!

O tempora, o mores! 

On the crazy Covid-times front, we can add this to the list of Zoom bombs: Lawyer is fined after he flips the bird during Zoom oral arguments. [See Flipping Bird During Zoom Hearing Costs Lawyer $3,000]

And Law.com has Appeals are starting to surface over masks, tech glitches, other pandemic-related issues, which quotes Buchalter's appellate leader M.C. Sungaila.

And see 9th Circuit Judge Tries to be Funny, Fails and Cool or Cringe? Judicial Pop Culture References Rankle Some Lawyers.

SAJEC needs your input!

LACBA’s State Appellate Judicial Evaluation Committee (SAJEC) is vetting three potential appointees to the Second District Court of Appeal:  Rex Heinke, Hon. Holly Thomas, and Hon. Gregory Weingart.  Anyone wishing to provide input on the potential appointees’ qualifications is welcome to fill out the evaluation forms linked below, or to contact committee chair Alana Rotter at arotter@gmsr.com.

https://www.surveymonkey.com/r/RexHeinke

https://www.surveymonkey.com/r/HonHollyThomas

https://www.surveymonkey.com/r/HonGregoryWeingart

Also note, today's DJ has FRAPs do not allow district court to alter allocation of costs, by Hoge Fenton's Dennis Zell, about SCOTUS's City of San Antonio v. Hotels.com.

In other SCOTUS news: The Court today announced that Kathleen L. Arberg, Public Information Officer of the Supreme Court of the United States, will retire on July 3 after serving 22 years as Public Information Officer and a total 40 years in the federal judiciary, 38 years spent at the Supreme Court.

1st DCA Survey

The First Appellate District, has conducted all of its hearings remotely since the beginning of the pandemic. As the Court looks ahead to the post-pandemic reopening of its courtroom, and considers the timing and logistics for the transition to that reopening, the Court is seeking input from the bar about the best way to move forward. The Clerk’s Office has drafted a survey designed to assist the Court in addressing these questions with the concerns and perspectives of the bar in mind. Complete the survey at the link below no later than June 18, 2021. There are only 12 questions and it should take no longer than 5 minutes to complete.

https://forms.gle/ZQmzPoRvFLCGdpS89

Appellate tidbits

 Today's DJ has two appellate articles:

• 
  Appellate specialist Arezoo Jamshidi and Elizabeth Evans of Haight Brown have Bench Trials on Appeal: Top Tips for Preserving Appellate Issues. The tips are: Perfect the statement of decision; Get a court reporter to make the clearest record possible; Take the time to brief issues; and Consider retaining an appellate attorney before one is necessary.
• This month's Exceptionally Appealing column is Putting a Contract Out On Appeals, about contractually waiving the right to appeal.