If Gov. Gavin Newsom nominates Sacramento Mayor Darrell Steinberg to the 3rd District Court of Appeal, he’ll have to sit some matters out. The city is a party to at least 15 cases pending before the court.
That would be just one of several unusual things about the potential nomination. Steinberg has never been a superior court judge, though he worked for several years as an administrative law judge and mediator. He has been a “Zelig” like figure as mayor, president pro tempore of the California Senate, private consultant and, more recently, a negotiator brought in to break negotiation stalemates.
Politico was the first to report on Tuesday that Steinberg had applied for an open seat on the appellate bench. Several appellate attorneys and others declined to comment, but multiple people confirmed Steinberg is under evaluation.
Mesiwala is a graduate of UC Davis School of Law and has been an adjunct professor there since 2013. She worked as a judicial attorney in the 3rd District court from 2004 to 2017, mainly as senior judicial attorney to Justice Ronald B. Robie. Robie is now the court’s acting presiding justice, after the June retirement of Presiding Justice Vance W. Raye and two others. If confirmed by the Commission on Judicial Appointments, Mesiwala would replace Coleman A. Blease, who retired that same month at 92 after 43 years on the court.
One of the appointed SFSC judges is Michael Rhoads, who had "been chambers attorney to Chief Justice Tani G. Cantil-Sakauye at the Supreme Court of California since 2018 and a senior attorney at the California Supreme Court from 2016 to 2018."
ANDRetired Justice Coleman A. Blease, a liberal stalwart on the 3rd District Court of Appeal and one of the longest serving justices in California history, died Nov. 28. He was 93.
Yesterday's Recorder had: As Trial Courts Work Through COVID Backlogs, Will Appellate Caseloads Be Impacted? -- Judge Richard Clifton, of the U.S. Court of Appeals for the Ninth Circuit, said judges on his court have speculated that there are more appeals ahead, though no signs of that trend have emerged yet.
“Civil cases that go to trial often involve more issues, such as evidentiary issues, and more serious and contested allegations. Criminal trials resolved with guilty pleas can still produce appeals, but not as many and on more limited issues. With the resumption of trials, the assumption is we will get more appeals from those cases and that some of them will be more complex,” Clifton, president of the Federal Judges Association, said in an email.
So far, statistics captured by the Administrative Office of the U.S. Courts don’t show a post-pandemic rebound in appeals filed across the federal appeals courts. The total number decreased from about 45,800 filed from June 2020 to June 2021 to about 42,000 filed from June 2021 to June 2022.
And for your year-end charitable contributions, consider The Appellate Project.
The Court is pleased to announce the publishing of the 2021 - 2022 Biennial Report, which details the Court’s collective accomplishments over the past two years. Despite the numerous and ongoing challenges posed by the COVID-19 pandemic, the Court implemented and expedited various programs, technology platforms and services to increase and expand access to justice. Much of this work is memorialized in the Report. Thank you, Sherri R. Carter, Executive Officer/Clerk of Court.
Of particular note, see pages 32 and 40:
Appellate Division In 2021 and 2022, the Central Appeals Unit and Appellate Division focused on ensuring the safety of staff while continuing to serve the public and justice partners during the pandemic using pre-existing and newly developed technology. More than 1,100 people participated remotely in an appellate hearing from January 1, 2021, through July 31, 2022. In 2021, the Court developed and implemented the Appeals Tracking System (ATS). ATS streamlines the appeals process across all litigations. ATS also eliminates dependence on many of the hard-copy conventions previously required of appeals processing. It also expedites the delivery of appeals records for court and public review. ATS was awarded a 2021 National Association of Counties Achievement Award.
Electronic Court of Appeals Records and Transcripts In August 2022, the Court developed and launched the Electronic Court of Appeals Records and Transcripts (eCART) software to replace the Transcript Assembly Program to prepare transcript and appeals records for the Court of Appeal. ECART is used to automate and streamline the appeals records and transcript process. Using modernization funding awarded by the JCC, the Court developed the new software to gather and transfer appeals records and transcripts for the Court of Appeal. ECART represents a new joint support/operational model, whereby the Court develops new technology and serves as the product owner, and the JCC deploys the product to other trial courts and provides support for the system. Developed and launched on time and under budget, 29 superior courts across California have implemented the software. In total, 22 trial courts have used eCART to submit a total of 186 transcripts to the Court of Appeal. In addition, the new system is assembling 1,115 case transcripts for transmission to the Court of Appeal.
Of even more appellatey interest, today's DJ has CJP closes complaint against 3rd District justice, ‘no basis for action’ -- “They don’t tell me whether the letter concerns [former justices] Murray or Blease, whether they found no basis for disciplinary action or simply decided not to proceed further, or why it took them two years to decide to do nothing,” retired appellate attorney Jon Eisenberg said by email Monday. “Kafka comes to mind.”
Today's DJ has Justice Hoffstadt's gift to all practitioners (and to the "appellate community"), his column titled Bah Humbug, which is chock-full of excellent advice.
 |
| Where's the key issue? |
 |
| One simply does not raise that many issues! |
 |
| Ad hominen? Let it go! |
Attorneys were busy discussing "complicit bias," arguing about "lawfare" and discussing the "great reshuffle" this past year, according to Burton's Legal Thesaurus, which released its list of 2022's top new legal terms and expressions Tuesday.
The list was compiled by the law professors and academics on the Select Committee on Terminology of Burton's Legal Thesaurus, and also includes "quiet quitting" and "meme stock," according to an announcement from the committee.
Today's DJ has Report: 3rd District Court of Appeal has slashed case backlog -- Between July 1, 2020, and Sept. 30, 2022, the court reduced its backlog of fully briefed cases awaiting decision from 814 to 298, according to the report. The overall number of pending appeals dropped from 2,039 to 1,350 over that same period.
In SCOTUS news, Bloomberg Law has Justices to Deliver Opinions From Bench After Pandemic Pause
 Nina Totenberg Sunday, February 5, 2023 @ 3:00 PM JAMS Performing Arts Center, Santa Monica We’ve listened to the legendary journalist Nina Totenberg for over 45 years on NPR, as she’s covered sometimes raucous Supreme Court hearings, reported on sometimes contentious judicial confirmation hearings, and explained the nuances of complex Supreme Court decisions. In her niche at the Court, she’s broken scoop after scoop about justices, and nominees. She earned a special spot in American feminist iconography stemming from her bombshell reporting about Anita Hill’s sexual harassment by Clarence Thomas. In her new book, Dinners With Ruth: A Memoir on the Power of Friendships, Nina Totenberg traces the power of close relationships with her dear friend, Justice Ruth Bader Ginsburg. She recounts her close friendships with her NPR colleagues and some of her great career triumphs– as well as some frustrations. But Nina Totenberg also turns her gaze to her personal life as well. The stories in Dinners With Ruth illustrate a profound relationship that clearly carried both women through the best and worst parts of their lives for over four decades. Like Nina Totenberg’s brilliant reportage, Dinners With Ruth is a most moving account of two of America’s most acclaimed women. |
Years-long delays in disposing of cases in the Third District Court of Appeal “were avoidable and inexcusable” but the Sacramento appellate court has taken “prompt and effective measures” to fix the problems, a Judicial Council committee concluded in a report released Monday.
The report, ordered by the chief justice and compiled by a group of appellate court justices, executives and attorneys, offers few specific details on how the cases were allowed to languish—some for nine to 10 years after full briefing. Those delays led to the forced retirement in June of the court’s administrative presiding justice, Vance Raye, after the Commission on Judicial Performance concluded the veteran jurist “failed to properly exercise his administrative and supervisory authority.”
The report made more than 20 recommendations for preventing the type of delays that occurred in the Third District. They include:
- Directing the administrative director to report to the Judicial Council’s appellate presiding justices committee a list of fully briefed appeals that have been fully briefed for more than a year.
- Adopting a new rule, or amending an existing one, that allows administrative justices “collectively,” under the oversight of the chief justice, to review and take action on complaints that an appellate court’s leadership has not addressed problems adequately.
- Improving workload statistics to reflect the type and complexity of cases being handled, judicial vacancies, and the number of pending, fully briefed cases.
- Taking steps to speed up the preparation of an appellate record at the superior court level.
The 3d DCA reports: Judge Samuel T. McAdam of the Yolo County Superior Court will be sitting in pro tempore beginning January 1, 2023.
At oral argument, counsel for both appellant and respondents requested this court to publish this opinion and establish a bright-line rule regarding the enforceability of nonsolicitation clauses. The facts of this case do not warrant publication, however. As will be explained in details, post, the nonsolicitation clause at issue here is impermissibly overbroad. We need not look beyond the facts of this case to address the issue of the per se invalidity of nonsolictation provisions in employment agreements.
Today's DJ ADR profile is Adapts to the needs of the case: John Zebrowski modifies his approach to best suit the dispute he's mediating, which notes that the former justice (now with ADR Services Inc., formerly in 2/2 from 1995-1999) has been providing appellate consultation since 1999.
Today's DJ has PJ Gilbert's Remembrance of times in the future with apologies to Marcel Proust--which is his 320th column (or so), his experiences with time travel, and the naming of 2/6's courtroom in his honor.
Law360 has 50 Judges Open Up About Law Clerk Selection And Diversity about a recent study: "Judge Fogel, who now serves as the executive director of the Berkeley Judicial Institute, and California Supreme Court Associate Justice Goodwin Liu took turns conducting hourlong interviews via Zoom with 50 U.S. Court of Appeals judges from all circuits. They interviewed both Democratic and Republican appointees, peppering them with questions about their hiring processes and diversity goals." The study's findings include:
(1) With few exceptions, appellate judges hire clerks as an “ensemble” and assign positive value to diversity, although judges vary significantly in the dimensions of diversity they seek. (2) Most judges disclaim any interest in ideological alignment when hiring clerks; we situate this finding in the context of factors that contribute to ideological segmentation of the clerkship market. (3) Republican appointees, compared to Democratic appointees, more often identified socioeconomic diversity as the primary dimension of diversity they seek. (4) Judges who graduated from law schools outside the U.S. News & World Report top twenty are significantly more likely than other judges to hire clerks from schools outside the top twenty. (5) Almost all judges in our sample consider gender in clerkship hiring, and many have specific goals for gender balance. Republican appointees reported more difficulty drawing women into their applicant pool than Democratic appointees. (6) Most judges in our sample assign positive value to racial diversity and consider race to some degree in evaluating applicants, although it is important to note that some judges believe strongly that such consideration is inappropriate. (7) Many judges who view racial diversity positively nonetheless reported difficulty hiring Black and Hispanic clerks. The judges with the most robust records of minority hiring are those who make affirmative efforts to draw minority candidates into their applicant pool or place greater emphasis on indicators of talent besides grades and law school rank, or do both. (8) Black judges are particularly successful in hiring Black clerks; we estimate that Black judges, who comprised less than one-eighth of active circuit judges during our study, accounted for more than half of the Black clerks hired each year in the federal courts of appeals.
It is with a very heavy heart that I share with you the news of the death of Justice Richard D. Fybel (Ret.). Justice Fybel passed peacefully from this world this morning at 2AM. after a courageous battle with an aggressive form of cancer. He was surrounded by his family when he passed. Justice Fybel was a loving husband, a wonderful father, a caring grandfather, a treasured friend, an extraordinary colleague, a generous mentor, and a brilliant legal mind. He will be greatly missed by so many.
Richard David Fybel was born in 1946 in Los Angeles, the oldest of the three sons of Ernest and Ruth Fybel. He attended the University of California at Los Angeles and received his bachelor’s degree in political science in 1968. After graduation, Justice Fybel immediately matriculated at the University of California at Los Angeles School of Law where he served on the Law Review and was elected to the Order of the Coif. He graduated in 1971 and later he served as the President of the UCLA Law Alumni Association.
Justice Fybel began his legal career at Nossaman, Waters, Scott, Krueger & Riordan in 1971. He was recruited to the San Francisco based firm Morrison Foerster in 1981. The values of MoFo were consistent with Justice Fybel’s own beliefs regarding meritocracy, service to community, and nondiscrimination. During Justice Fybel’s four-year term as the office’s managing partner, the office grew to 138 lawyers and took a decided turn toward increasing representation among women and persons of color. Justice Fybel later served as the firmwide managing partner for attorney personnel and on the firm’s management committee. According to former MoFo firm chairman Carl Leonard, despite Justice Fybel’s powerful and important position, one of his greatest assets was his humility.
In April 2000, Justice Fybel was appointed by Governor Gray Davis to the Orange County Superior Court. In February 2002, his appointment as an Associate Justice of the Court of Appeal, Fourth District, Division Three was confirmed by the Commission on Judicial Appointments. During his twenty-year tenure as a justice of the Court of Appeal, Justice Fybel made significant contributions to the development of California law, the pursuit of justice, and the advancement of judicial ethics. Justice Fybel authored some 260 published opinions. His opinions display a mastery of diverse areas of law and are a valuable contribution to jurisprudence. Justice Fybel firmly believed in the fair and evenhanded application of the law and the responsibility of the court system to promote justice.
At the time of his retirement, Fourth Appellate District, Division Three, Presiding Justice Kathleen O’Leary stated, “I can honestly say as far as colleagues go, Justice Fybel is the gold standard.” The Chief Justice of California, Tani G. Cantil-Sakauye commented, “The arc, scope and depth of Justice Richard Fybel’s extraordinary professional contributions to justice in California for his 22 years as a jurist are breathtaking and will guide us for years to come.” She went on to express her deepest gratitude and admiration and described him as her “dear, brilliant, kind, and gentle friend.”
A noted expert on judicial ethics, Justice Fybel chaired the California Supreme Court’s Advisory Committee on the Code of Judicial Ethics from 2004 until his retirement in 2022. As chair, he successfully navigated the elimination of the Code’s controversial exception to the prohibition against judicial membership in discriminatory organizations. Based on his mastery of the topic of judicial ethics, Justice Fybel was tapped to co-write the 4th edition of the California Judicial Conduct Handbook, the 1000-page treatise on judicial ethics used by virtually every judge in California. He also chaired the advisory committee that made recommendations to the Supreme Court about the creation of the Court’s Committee on Judicial Ethics Opinions.
Justice Fybel wrote and spoke extensively on the German Legal System between 1933 and 1945 and the Nuremberg Trials. He was an Adjunct Professor at the Fowler School of Law at Chapman University, where he co-taught a seminar with Professor Michael Bazyler on The Holocaust, Genocide and the Law. Justice Fybel was a member of the Holocaust Program Planning Committee for “How the Courts Failed Germany,” cosponsored by the United States Holocaust Memorial Museum, the University of California and the Judicial Council, and was a panel member in the program at UCI.
Justice
Fybel was a member of the Boards of Advisors of the Fowler School of Law and
The Rodgers Center for Holocaust Education at Chapman University. He was
also a member of the Board of Visitors of the UCI School of Law, and of the
Jewish Law Institute Advisory Board of the Touro Law Center in New York.
He was a member of the JSerra Catholic High School Pre-Law Magnet Advisory
Board.
Justice
Fybel viewed his Jewish faith as a blessing and took to heart basic Jewish
values of justice, healing the world, charity, and kindness to
others. Justice Fybel was the President of the Board of
Directors of University Synagogue in Irvine from July 2010 through June 2012.
Justice Fybel was a prolific author and frequent speaker on judicial ethics, professionalism in the law, and other topics. He also was the recipient of many, many awards. A few of those awards are the President’s Award from the California Judges Association for selflessly providing time and counsel to aid the CJA’s president in advancing the association’s goals, the Franklin G. West Award presented by the Orange County Bar Association (OCBA) to outstanding attorneys and judges whose lifetime achievements have advanced justice and the law, and the 2005 UCLA Law School Alumnus of the Year for Public and Community Service Award.
Justice
Fybel believed he led a charmed and blessed life, and he was grateful to all
the people who helped him be in a position to make contributions in the areas
he believed were important. As a person, an attorney, and a judge, he
showed empathy and understanding of the impact judicial decisions have on
litigants and lawyers, and he exemplified the virtues of honesty and
kindness. Justice Fybel’s theory of jurisprudence was this: Fair, just,
and correct results are obtained by impartially and rigorously applying the
relevant principles of law to the record in light of the relevant standard of review.
When speaking at one of Justice Fybel’s many award ceremonies, Berkeley Law Dean Erwin Chemerinsky remarked if you were to look up the word “mensch” in a dictionary, you should see a photo of Justice Fybel. The following day, the Southern California Appellate News blog posted a photograph of Justice Fybel with the caption: “MENSCH Yiddish: מענטש mentsh: A particularly good person, full of integrity and honor, with the noble qualities one would hope for in a dear friend or trusted colleague; a gentleman. Someone like Justice Fybel.”
Justice Fybel is survived by his wife Susan, daughter Stephanie, son Dan (Garland Testa), and four grandchildren who were the greatest joys of his life. May his memory be a blessing.
K.O. Kathleen E. O’Leary
The following are currently sitting on assignment with the 2d District:
Commission Confirms 3 Justices to State Appellate Courts -- Associate Justice Therese Stewart of the First District Court of Appeal will now serve as presiding justice of the court's Division Two. Los Angeles County Superior Court Judges Gregory Weingart and Victor Viramontes were confirmed to the Second District Court of Appeal.
Posts
All Comments
