Appellatey appointments

Today's DJ has Newsom nominates Earl to presiding justice of 3rd District, taps associate justices to 2nd and 4th districts which quotes "Retired appellate attorney Jon B. Eisenberg, who lodged complaints about the case backlogs with the Commission on Judicial Performance, called Earl “the right person for a fresh restart.”" The Recorder has 3 Appellate Judges Among Newsom’s Latest Batch of Court Nominees.

Other nominees with appellatey backgrounds include: 

• Gonzalo Martinez was as deputy solicitor general in the California Attorney General’s Office (2017- 2019) and specialized in appellate matters at Squire Patton Boggs (2007 to 2017).
• "Daniel L. Alexander will serve as a judge in Los Angeles County. He has been a senior appellate court attorney for the 2nd District Court of Appeal since 2017." He also served as a Law Clerk at the Supreme Court of Texas from 2000 to 2001.
• And Jessica Konstradt appointed to LASC is the daughter of Justice Helen Bendix.

And today is Cesar Chavez Day, a California judicial holiday.

The cover story for the April 2023 issue of ABA Journal is Supreme Preparation: What attorneys go through before facing the nine. The issue also has Art Lien sketched court figures for 45 years, from blockbuster cases to the arcane.

Bloomberg Law has Female Justices Still Interrupted at Argument, But Barrett Less -- Emory Law School’s Tonja Jacobi says her updated data shows that female US Supreme Court justices are still being interrupted more during oral argument than males, even after changes to the questioning procedure. Conservative Justice Amy Coney Barrett is interrupted less than her female colleagues, but more than her male ones, suggesting ideology is another factor in who gets to speak, Jacobi says.

Appellate Lawyer Job Opening

The appellate boutique Esner Chang & Boyer has an opening:

Seeking 10 plus year Attorney to join plaintiff’s side civil appellate firm. Prior judicial clerkship is preferred. Our firm is dedicated to protecting the rights of victims in civil appellate litigation and we are looking for a motivated and passionate attorney to join our team. The position entails reviewing large trial records and preparing appellate and trial level briefing in complex and challenging matters. Applicants must have either appellate experience or extensive experience in dispositive civil law and motion. Applicants should also have exceptional research, analytical and writing skills, a broad and practical knowledge of the law, and the ability to work both independently and cooperatively on multiple projects in a fast-paced environment. Please submit a resume, a writing sample that reflects your work, and a cover letter briefly explaining your interests/background to hr@ecbappeal.com

2d District pro tem update

 

The following are currently sitting on assignment: 

• Associate Justice Patricia D. Benke (ret.) of the Fourth District Court of Appeal will be sitting Pro Tem in Division Three until April 30, 2023
• Judge Sarah J. Heidel of the Los Angeles Superior Court will be sitting Pro Tem in Division Three until April 30, 2023 
• Judge Helen Zukin of the Los Angeles Superior Court will be sitting Pro Tem in Division Four until May 31, 2023
• Judge Nicholas F. Daum of the Los Angeles Superior Court will be sitting Pro Tem in Division Four until April 30, 2023 
• Judge Kristin S. Escalante of the Los Angeles Superior Court will be sitting Pro Tem in Division Seven until May 31, 2023 

 

And the Ninth Circuit is seeking input on proposed rule changes here due May 31:

• Circuit Rule 9-1.2 (Release in Criminal Cases) and the new accompanying Advisory Committee Note abrogates subsection (e), the continuation of bail pending resolution of a motion for bail pending appeal, and directs parties to use the court’s existing emergency motions procedures where relief is needed within 21 days.
• The Advisory Committee Note to Circuit Rule 27-14 (Motions to Transmit Physical Exhibits) clarifies the number of copies of physical exhibits required generally, and the formatting of digital exhibits.

Drop consent for amici?

Why jump through hoops?

Law.com has SCOTUS Nixed Consent Requirement for Amicus Briefs. Will Appeals Courts Follow? -- The idea was brought up at the Advisory Committee on Appellate Rules’ latest meeting this week, and appears to be welcomed by appellate practitioners.

• Currently, at the appellate level, amici can only submit a brief with consent from the parties or permission from the court. The nation’s highest court had a similar restriction, but scrapped it last year.
• “Our thinking is that our rules ought to be in conformity with the [Supreme Court’s] rules with respect to that,” said U.S. Court of Appeals for the Ninth Circuit Judge Jay Bybee, who is chair of the committee.

Hey, if you settle the day before oral argument, your stipulated request to dismiss may be denied and a published opinion could issue if the appeal presents important legal issues of continuing interest to the public--as here today (see fn. 2). 

Chief has mild Covid

The Supreme Court Clerk announces:

Chief Justice Patricia Guerrero tested positive yesterday for COVID-19 and is exhibiting mild symptoms. She is fully vaccinated.
The Chief Justice will be working in isolation in accordance with state and local health guidelines. Pending further developments, she presently anticipates participating at the April 4 oral argument remotely.

3 Appellate nominations!

 Governor Gavin Newsom today announced his nomination of three Court of Appeal Justices: Gonzalo Martinez as an Associate Justice of the Second District Court of Appeal, Division Seven; Justice Laurie Earl as Presiding Justice of the Third District Court of Appeal; and Judge David Rubin as an Associate Justice of the Fourth District Court of Appeal, Division One.

Second District Court of Appeal

Gonzalo Martinez, of Alameda County, has been nominated to serve as an Associate Justice of the Second District Court of Appeal, Division Seven. Martinez has served as Deputy Judicial Appointments Secretary in the Office of Governor Gavin Newsom since 2019. He served as a Deputy Solicitor General in the California Attorney General’s Office from 2017 to 2019 and was a Partner in the Appellate and Supreme Court Practice Group at Squire Patton Boggs from 2007 to 2017 and in 2019. Martinez served as a Law Clerk at the U.S. District Court, Northern District of California in 2010 and at the U.S. District Court, Eastern District of California in 2007. Martinez was an Associate at Coblentz Patch Duffy and Bass from 2005 to 2007 and at Morrison & Foerster LLP from 2003 to 2005. Martinez earned a Juris Doctor degree from Harvard Law School and a Master of Arts degree in English from Stanford University. He fills the vacancy created by the retirement of Justice Laurie D. Zelon. This position requires confirmation by the Commission on Judicial Appointments, which consists of Chief Justice Patricia Guerrero, Attorney General Rob Bonta and Senior Presiding Justice Arthur Gilbert. He is a Democrat.

Third District Court of Appeal
 

Justice Laurie Earl, of Sacramento County, has been nominated to serve as Presiding Justice of the Third District Court of Appeal, where she has served as an Associate Justice since 2022. She served as a Judge in the Sacramento County Superior Court from 2005 to 2021. Justice Earl was Senior Assistant Inspector General at the California Office of Inspector General from 2004 to 2005 and a Deputy District Attorney at the Sacramento County District Attorney’s Office from 1995 to 2004. She served as an Assistant Public Defender at the Sacramento County Public Defender’s Office from 1989 to 1995. Justice Earl earned a Juris Doctor degree from the Lincoln Law School of Sacramento. She fills the vacancy created by the retirement of Presiding Justice Vance W. Raye. This position requires the completion of a review by the State Bar’s Commission on Judicial Nominees Evaluation and confirmation by the Commission on Judicial Appointments, which consists of Chief Justice Patricia Guerrero, Attorney General Rob Bonta and Senior Presiding Justice Ronald Robie. Justice Earl is a Democrat.

Fourth District Court of Appeal
 

Judge David Rubin, of San Diego County, has been nominated to serve as an Associate Justice of the Fourth District Court of Appeal, Division One. He has served as a Judge at the San Diego County Superior Court since 2007. Judge Rubin served as a Deputy District Attorney at the San Diego County District Attorney’s Office from 1987 to 2007. He earned a Juris Doctor degree from the University of San Francisco School of Law. Judge Rubin fills the vacancy created by the retirement of Justice Cynthia G. Aaron. This position requires confirmation by the Commission on Judicial Appointments, which consists of Chief Justice Patricia Guerrero, Attorney General Rob Bonta and Senior Presiding Justice Manuel Ramirez. He is a Democrat.

The compensation for each of these positions is $264,542.

Why are there anti-SLAPP appeals in the 9th?

The MetNews has Bress Questions Why Ninth Circuit Permits Appeals From Anti-SLAPP Motion Denials about Judge Bress's concurring opinion in the unpub'd decision in Salveson v. Kessler.

• This case is the latest example of why we should question whether we have jurisdiction under the collateral order doctrine over an interlocutory appeal of the denial of an anti-SLAPP motion.
• This piecemeal appeal, which our precedents unjustifiably allow, has resulted in a totally meritless anti-SLAPP motion delaying this litigation by nearly a year. That is neither sound as a matter of law nor sensible as a matter of litigation management.

On April 29 from 2 to 5 p.m. CLA's Litigation Section & Criminal Law Section present a free 2 hour mcle event at CLA's HQ office in Sacramento featuring retired 3d DCA Justice William Murray on AB 3070 and its Impact on the use of Peremptory Challenges. Details here.

RIP 9th Cir. Judge Leavy (1929-2023)

Ninth Circuit Court of Appeals Mourns Passing of Judge Edward Leavy

Judge Edward Leavy, 93, of the United States Court of Appeals for the Ninth Circuit, died March 12, 2023. Judge Leavy was born Aug. 14, 1929, on the family hop farm near Butteville, Oregon, and served as a judge in both state and federal courts for 66 years.

Judge Leavy assumed senior status in 1997 and continued to participate in the court’s cases until 2022.

CA courts websites down...

Hoping this gets resolved soon! [Update: the websites are back up!]

"The website is currently unavailable due to a service outage. We are working to resolve the issue and restore service as soon as possible. Please try again later."

Isn't oral argument enough?

Law360 reports that SCOTUS has again denied cert from a petition seeking review on the Federal Circuit's practice of summarily deciding appeals without written reasons. See High Court Skips Review Of Fed. Circ.'s 1-Line Orders Again

The petition was only the most recent legal challenge lodged over the Federal Circuit's manner of deciding appeals without commenting on them whatsoever. In fact, Virentem had cited a small history of criticism the court has received over it, like a legal paper from former Sterne Kessler Goldstein & Fox PLLC lawyer Rebecca A. Lindhorst titled "Because I Said So: The Federal Circuit, The PTAB, and the Problem With Rule 36 Affirmances," as well as a paper by Dennis Crouch, a professor at the University of Missouri School of Law, called "Wrongly Affirmed Without Opinion." In 2021, another failed petition made the case that the practice has "gotten out of hand."

The article also noted that at a recent conference, two Federal Circuit judges defended the court's practice, asserting that such summary decisions are appropriate in cases where the standard of review is for substantial evidence (and where appellants fatally misunderstand that standard). Further, because the Federal Circuit allows oral arguments in every case, that is enough: Judge Sharon Prost said, "Once you've had oral argument, I think you will agree that you can rest assured that the judges understand your case and spent a lot of time on it."

Thank the stars for California, where appellants have the right to oral argument AND to a reasoned decision in writing.  

[Bloomberg Law has a 4/3/23 article on this: No-Opinion Federal Circuit Orders Face Long Shot at High Court]

State of the Judiciary

The Recorder reports on yesterday's presentation in Sacramento: Chief Justice Patricia Guerrero Lauds Remote Technology in First State of the Judiciary Address -- Just three months into the job as chief justice, Patricia Guerrero said supporters and opponents of remote technology in the courts should find a "fair, equitable and just" solution that allows its continued use.

• In her first address to the California Legislature, Chief Justice Patricia Guerrero on Monday praised the increased use of remote technology in state courtrooms, even as court reporters and interpreters press lawmakers to curb its expanded use.
• The chief justice delivered her speech just 85 days after she became the leader of California’s judiciary and one year after she joined the court as an associate justice. Much of her address touched on her biography—her parents’ immigration to the U.S. from Mexico to escape poverty, her first jobs at grocery stores, her work as a federal prosecutor and a partner at Latham & Watkins and her quick rise through the courts to become chief justice.
• Guerrero is the first Latina to serve on the state’s high court. On Monday, she lauded recent governors’ efforts to place more women and racial minorities on the bench, and she noted that last December the Judicial Council voted to add “inclusion” as a top branch priority along with access, fairness and diversity. California courts now close for César Chávez Day, Native American Day and, starting this year, Juneteenth.

In SoCal law school news, see Loyola Law Dean Chosen to Lead UCLA Law -- “Our values of inclusivity and excellence are woven into the fabric of Los Angeles, felt across the country and world and known throughout legal education,” Michael Waterstone added as the deanship brings him back to his alma mater where he earned his bachelor’s degree in political science.

And the DJ has Canadian law school professor named next dean of Chapman law school -- Paul D. Paton is an internationally recognized expert in legal ethics.

In time for Easter...

In time for Easter, 1/2 issues an unpub decision here about appellate resurrection regarding an important appellate procedure issue pending at the Supreme Court, which begins:

Plaintiffs and appellants [] appeal from a trial court order determining a settlement was in good faith. We shall dismiss the appeal, applying a line of authority, holding that the only review available to appellants is a timely petition for writ of mandate—a line of authority, not incidentally, supported with cases from this Appellate District: In re Pacific Fertility Cases (2022) 78 Cal.App.5th 568, 573, review granted August 17, 2022, S275134, and Housing Group v. Superior Court (1994) 24 Cal.App.4th 549, 552.

Doing so, we recognize that the issue is currently before our Supreme Court; that if appellants are so inclined, they can seek review of our decision in that court; and that the ultimate holding in that court may differ from that we make here, perhaps resurrecting appellants’ appeal. We thus accompany our dismissal with several observations about appellants’ briefing and advocacy here—observations that are not complimentary—indicating that if this is the best appellants can do, review should not be sought, as any such appeal may not be worthy of resurrection.

The decision also asserts: "Good appellate advocacy does not just regurgitate losing arguments made below."

Appellate Sanctions

Boom! 4/3 imposes appellate sanctions in an unpub today here. Why? the intro explains:

This appeal not only is unsuccessful but is frivolous.  Mandir challenges the trial court’s decision for reasons, and on grounds, that are directly contrary to several fundamental principles governing appellate review.  Although no party requested a statement of decision, and the trial did not issue one, Mandir ignores the doctrine of implied findings and instead attacks statements made by the trial court in rendering the statement of intended decision.  Mandir mounts a substantial evidence challenge which, as we shall explain, violates virtually every precept of that standard of review.  And despite making a substantial evidence challenge, and citing trial exhibits in its appellate opening brief, Mandir has not secured transmission of the trial exhibits to this court.

We grant the [] motion for monetary sanctions and award sanctions against Mandir’s counsel in the requested amount of $49,243.20.1.

Also of interest today: Committee Backs Off Sweeping Changes to Commission on Judicial Performance -- A panel charged with scrutinizing California's judicial disciplinary system said in report made public Monday that the state should not scrap a statute of limitations on disciplining judges but should instead extend the current six-year window to 15 years in many cases.

Job opening for Appellate Self-Help Clinic

 

ABOUT THE APPELLATE CLINIC FOR SELF REPRESENTED LITIGANTS
Public Counsel’s Appellate Clinic for Self-Represented Litigants has been operating out of the Second District Court of Appeal since 2008. Currently operating three days a week, the Clinic will expand to offer services throughout the week upon recruitment of the right candidate. This is an opportunity for a dynamic attorney to manage their own clinic based at the Second District Court of Appeal, build relationships with pro bonos, local law schools and the courts, and plan for a sustainable future for the clinic through advocacy at the local and state level and fundraising in conjunction with Public Counsel’s excellent Development team. The Appellate Self-Help Clinic is part of the Consumer Rights & Economic Justice (“CREJ”) Project, which also includes the Federal Pro Se Clinic.
JOB SUMMARY
This is a full-time Supervising Staff Attorney position for an attorney with experience in assisting low-income people and appellate experience (or the ability to get quickly up to speed on appellate procedure) to advise self-represented litigants. The successful candidate will join the Consumer Rights & Economic Justice team.
Details here.

Appellate Differences CA, AZ, NV

The ABA presents Traps for Appellate Out-of-Towners: Differences Among Neighboring State Appellate Practices (West Coast Edition) 

This program will highlight the differences among state appellate practices in California, Arizona and Nevada. Experienced appellate practitioners from each state will lead the panel. Panelists: Ben Cooper, Dickinson Wright PLLC, Phoenix, AZ; Kelly H. Dove, Snell & Wilmer, Las Vegas, NV; Kirk Jenkins, Arnold & Porter, San Francisco, CA. The ABA will seek 1.5 hours of CLE credit in 60-minute states, and 1.8 hours of CLE credit for this program in 50-minute states. Credit hours are estimated and are subject to each state’s approval and credit rounding rules. This program is the first in a series that will cover the differences in appellate practice in neighboring states across the country.

PJ Epstein obit

Epstein in 1969

Today's DJ has Justice Norman L. Epstein, 1933 — 2023 -- "Scholar in residence" of 2nd District Court of Appeal believed law was the "noble profession"

• The only son of a Los Angeles pharmacist and an amateur artist, Norman Epstein revered education and even thought about becoming an academic before opting to go to law school. He served as vice chancellor and general counsel of the California State University system for 13 years before becoming a judge.
• He was valedictorian of his senior class at Fairfax High School. Then he graduated from UCLA and UCLA School of Law.
• On the bench, he taught at the California Judicial College and co-authored several legal treatises with Bernard E. Witkin, founder of "Summary of California Law," and taught with Bernard S. Jefferson, who wrote "Jefferson's California evidence benchbook."
• Epstein retired as presiding judge of Division 4 of the 2nd District in 2018. He had served 28 years on the Court of Appeal and 45 as a judge.

The MetNews' detailed obit is here.

RIP PJ Norm Epstein (1933-2023)

The appellate bench and bar mourns the passing of 2/4's retired PJ Norman L. Epstein (PJ 2004-2018; Associate Justice 1990-2004). See the California Courts Newsroom News Release In Memoriam: Justice Norman Epstein.

State of the Judiciary Address

On Monday at 2:45, Chief Justice Patricia Guerrero will deliver the State of the Judiciary address at the California State Senate in Sacramento, CA.

Bill proposes allowing recordings if CSR not available

Today's Recorder has Bill Would Allow Electronic Recording in All Civil Cases

• SB 662 would authorize courts to record civil proceedings when a certified shorthand reporter is not available. Labor groups representing court-employed reporters vowed to fight the bill.
• Newly amended legislation would authorize California courts to electronically record all civil proceedings, putting into political play a key Judicial Council priority and setting up a potentially bitter battle with certified shorthand reporters.
• SB 662 is sponsored by the Family Violence Appellate Project. The organization’s director of programs, Jennafer Dorfman Wagner, testified at a legislative hearing earlier this month that litigants’ inability to secure transcripts from proceedings where no court reporter is available can further punish domestic violence victims.
  

Amici wanted

Law360 has Arkansas Federal Judge Says Bring On The Amici

• An Arkansas federal judge on Tuesday issued an invitation to parties in every civil case pending before him: Turn to amici for help briefing constitutional law or statutory interpretation issues that would benefit from a better understanding of the "original public meaning" of those provisions.
• To further encourage amicus briefing, Judge Rudofsky guaranteed argument time in front of him for junior attorneys who devote their efforts to such briefs. Attorneys who have been in practice for fewer than seven years will get at least 10 minutes of oral argument time before him if they are the principal drafter of an amicus brief on a dispositive motion or motion for preliminary relief.
• Judge Rudofsky is a former Kirkland & Ellis LLP litigator and Arkansas solicitor general who was working in-house at Walmart Inc. when he was appointed to the federal bench by former President Donald Trump in 2019.

Former Chief's finger to stay in the law!

The Recorder has Former Chief Justice Tani Cantil-Sakauye to Join ADR Services as Mediator

• Tani Cantil-Sakauye, who stepped down as California’s chief justice in January to become the head of a prominent think tank, will join ADR Services Inc. next month, she and the firm announced Tuesday.
• Cantil-Sakauye said she will retain her position as president and chief executive officer of the Public Policy Institute of California and work at the arbitration and mediation company “in my spare time.”
• “I want to dabble and keep my finger in the law,” she said.

DJ profiles J. Margulies

 

Friday's DJ had Justice Sandra Margulies Keeps Arguments On Track, noting that she "prefers to keep a low profile" and "declined to be interviewed." The DJ's earlier profile (Sandra Margulies maintains close friendships on the appellate bench, keeps her own counsel), which ran in October 2012, notes that her parents were Jewish (Austrian-Russian) immigrants from Canada, and that her closest friends includes Justices Jenkins and Corrigan, with whom she worked at the Alameda County DA's office. It also said she is known as an active questioner.

Law360 has In Solo Dissent, Jackson Protests 'Sharp Uptick' In Vacaturs

• Justice Ketanji Brown Jackson used her first solo dissenting opinion Monday to call out the U.S. Supreme Court for a "sharp uptick" in the use of a once-rare procedural mechanism to erase precedents set by lower courts.
• "I am concerned that contemporary practice related to so-called 'Munsingwear vacaturs' has drifted away from the doctrine's foundational moorings," Justice Jackson wrote. [Chapman v. Doe, Scotus 21-1692]

For an argument that superior court decisions should be citable, see Michael L. Smith's, The Citation of Unpublished Cases in the Wake of COVID-19 (2021) 25 Chap. L. Rev. 97-126.

Justice Groban interview

Follow Our Courts, a publication about the legal industry in the Inland Empire has A conversation with California Supreme Court Justice Groban -- California Supreme Court Associate Justice Joshua P. Groban sat down with Riverside Superior Judge Kira L. Klatchko and Desert Bar Association President Lori Sanford after the Hall of Fame awards concluded March 2, to talk about his time with Gov. Edmund G. “Jerry” Brown, the experience of sharing a name with a multiplatinum singer-songwriter, and his commitment to social justice.

CLA CAC's Meet the New Justices webinar

 

Free Webinar: Meet New Justices on the Court of Appeal March 23, 2023, 12:15 p.m. - 1:15 p.m. | REGISTER HERE 1.0 Hour MCLE self-study, includes Legal Specialization in Appellate Law. Presented by the Litigation Section's Committee on Appellate Courts. Please join us for the First Annual CLA Committee on Appellate Courts' "Meet New Justices" Program. This program will introduce some of California's newest justices on the Court of Appeal: Justice Stacy Boulware Eurie, Third Dist. Justice Martin Buchanan, Fourth Dist. Div. 1 Justice Jeremy Goldman, First Dist., Div. 4 Justice Victor Viramontes, Second Dist., Div. 8 And next Thursday, 3/30, LACBA's Appellate Court section presents the annual Phil Goar Night of the Roundtables, featuring research and writ attorneys from the 2d District. Details here.

Partial appeal bonds have 'Merritt'

Today's DJ has David Axelrad's enlightening piece titled When is a partial appeal bond sufficient? -- What happens if an insurance carrier is required to post an appeal bond as part of its contractual obligation to an insured seeking to appeal a judgment or order, but the required amount of the bond exceeds the policy limit or is otherwise more than the insurer is prepared to give?

• On its face, the statutory scheme seems to say “no” by prescribing the amount of the bond and by enabling the respondent on appeal to object to the undertaking as insufficient in amount. (Code Civ. Proc., §§ 922, 995.920, subd. (b).) But in Merritt v. J. A. Stafford Co., 68 Cal.2d 619, 625 (1968), the California Supreme Court made an exception.
• Although some recent cases have made blanket statements about the insufficiency of bonds in amounts less than that provided by statute (see, e.g., Patel v. Chavez, 85 Cal.App.5th 712, 719–720 (2022)), neither the Supreme Court nor the Legislature has seen fit to overrule Merritt, and partial bonds issued by insurers therefore continue to be effective to stay the portion of the judgment covered by the partial bond. Respondents may still “seek execution” as to the “excess part of the judgment,” or “enter into an agreement to stay execution with the insured.” (Merritt, supra, 68 Cal.2d at p. 626.) But “as to the part of the judgment within the policy limits [the respondent] will be protected by the [insurer’s partial] bond.” (Ibid.)

Today's DJ also has Myron Moskovitz's Judging Bad Guys. Part III: The Effect On "The Law"

 

Chemerinsky at the Hammer

 

Next Wednesday, March 22, at the Hammer Museum in Westwood presents Originalism and the Supreme Court, with Erwin Chemerinsky

Lights, camera, SCOTUS?

 Law360 has Sens. Reintroduce Bill To Allow Cameras In Supreme Court

• 
  Senate Judiciary Committee Chairman Dick Durbin, D-Ill., and a bipartisan group of senators reintroduced legislation Thursday to allow live television coverage of U.S. Supreme Court proceedings.
• The Cameras in the Courtroom Act says the Supreme Court "shall permit television coverage of all open sessions" of the court, but also allows a majority of justices to vote that allowing coverage of a particular case would constitute a violation of due process rights of one of the parties.
• "As trust in the Supreme Court hovers near all-time lows, shining a light into the Supreme Court chamber would increase transparency, strengthen democracy, and help inform Americans of issues at the forefront of their government," Durbin said.
• Live television coverage of argument before the justices would add another element of transparency to the Supreme Court, which began audio livestreaming only in 2020, during the early days of the COVID-19 pandemic. The court continued livestream audio even after it returned from virtual arguments to in-person ones in October 2021.
  

Today SCOTUS held (and broadcast) a Justice Ruth Bader Ginsburg Bar Memorial, which featured 9th Circuit Judges Owens and Watford.

Receipt not necessary

We know that the time to appeal can be (and usually is) triggered by service of notice of entry. But what if appellant claims he never actually received the notice? Uh, it's long been the law that that doesn't matter! As an unpub from 4/3 puts it:

Receipt of a mailed notice of entry of judgment is not required to trigger the 60-day window to appeal. “[S]ervice is complete at the time the document is deposited in the mail. [Citation.] . . . [T]he sender does not have the burden of showing the notice was actually received by the addressee.” (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360; see also Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58-59 [upholding validity of notice of entry of default judgment despite failure to include floor or suite number of addressee located in “one of the largest buildings in Los Angeles”].) “[T]he risk of failure of the mail is on the addressee[.]” (Meskell v. Culver City Unified School Dist. (1970) 12 Cal.App.3d 815, 824.)

Federal Judicial Security article

Law.com has Federal Judges Got the Power to Remove Their Private Info From the Internet—And They're Using It -- The new program has arrived—and thrived—as members of Congress and the public have expressed concern about the federal government’s efforts to remove information online and sought more accountability of the judiciary.

• As threats against the federal judiciary are reportedly on the rise, one thousand federal judges have enrolled in a program which allows for the removal of their private information from the internet.
• The new data comes from an annual report from the Director of the Administrative Office of the U.S. Courts. It details how a new office of threat management has assisted “judges in removing or redacting their [private identifying information] from online locations.”
• Two-thousand and three hundred judges are eligible for the program.
• The power to remove this information was made permanent after the passage of the Daniel Anderl Judicial Security and Privacy Act, attached to the National Defense Authorization Act of 2023, in December.
According to a 2022 report from the U.S. Marshals Service, the agency which protects the judiciary, 4,511 “threats and inappropriate communications against protected persons” were reported. The agency protects a total of 30,300 persons. A 2020 report from the agency said 4,449 threats and inappropriate communications were reported.

Judge McKeown on Justice Douglas

Today's DJ has Passion for outdoors led circuit judge to write about Justice William O. Douglas' environmental advocacy -- Judge M. Margaret McKeown spent five years in research institutions across the country to write “Citizen Justice: The Environmental Legacy of William O. Douglas — Public Advocate and Conservation Champion”.

• Published by McKeown last September, “Citizen Justice: The Environmental Legacy of William O. Douglas — Public Advocate and Conservation Champion” focuses on the environmental legacy of Douglas, considered to be one of the most progressive and somewhat controversial justices to sit on the court.
• With 11 chapters constructed from firsthand sources and documents, as well as interviews with former law clerks, “Citizen Justice” delves into Douglas’ journey on the Supreme Court through the lens of important environmental cases brought before him and his fellow justices. Having spent his adolescence near the mountains of central Washington, Douglas’ love and respect for nature and the outdoors was no secret and he frequently took hard stances against infrastructure taking over the earth.

Law.com has Why This Judge Is Adding Pro Se Summaries to Her Rulings -- "The idea that we could simplify this in a brief introductory paragraph and help that person understand the bottom line of the decision was really appealing to me," said Judge Charlotte Sweeney [USDC Dist. of CO].

NJC RBG program

 

Dynamic group of experts to lead panel discussion for Justice Ruth Bader Ginsburg Lecture Join us online for the third-annual Justice Ruth Bader Ginsburg Lecture, to be held – as always – on the birth anniversary of Justice Ginsburg, March 15. This year’s lecture will be a panel discussion on a subject Justice Ginsburg was well known for: “Voice Through Dissent.” Join us online from noon to 1 p.m. Pacific; 3 to 4 p.m. Eastern, on March 15, 2023. Come early to see a video montage starting at 11:45 Pacific. Register

1st DCA orders

The Court of Appeal, First Appellate District, issued two new Miscellaneous Orders on Monday, March 13.

• The first, Miscellaneous Order 2023-1, lifts the requirement that those attending oral argument in the courtroom wear face coverings, but encourages them to do so. It also describes protocols for attendance in the courtroom so as to prevent the spread of COVID-19.
• The second, Miscellaneous Order 2023-2, states that while renovations are being made to the courtroom from April 17, 2023 to May 22, 2023, or shortly thereafter, all in-person oral argument sessions are suspended, and counsel and self-represented litigants who choose to present oral argument must do so remotely. The public may continue to access oral argument via live streaming on the court’s Calendar webpage, https://www.courts.ca.gov/11245.htm. Recordings of oral arguments will continue to be archived for subsequent viewing.

Law360 has Atty Gives Up Supreme Court Argument To Avoid 'Infighting'

An arbitration case involving Coinbase Inc. set to be heard by the U.S. Supreme Court next week shows the thorny issues that can arise after the justices refuse to divide argument time between two unrelated respondents, with one of the attorneys feeling compelled to give up the chance to argue the case out of fear that "infighting" will lead to it being dismissed.

And don't miss the Wall St. Journal's: Font Wars Spread After State Department Replaces Times New Roman With Calibri, which concludes:

Rebecca Creed, a Florida-based appellate attorney, had in the past used Times New Roman or Courier New for court briefs and other legal documents. In 2021, the Florida Supreme Court adopted a rule requiring Arial or Bookman Old Style, chosen for their readability on screens, for computer-generated documents. At Ms. Creed’s law firm, Bookman Old Style won out. “We just liked the way it looked,” she said. “That sounds dumb, but it’s really just what it came down to.”

DJ runs obit for Judge Goodwin

 

Today's DJ has an obit for Judge Goodwin: Judge Alfred Theodore “Ted” Goodwin, 1923–2022:

Goodwin died on Dec. 27 at his home in Bend, Oregon. He was 99. He was one of the longest-serving federal court judges – 53 years, 16 days – and, according to the 9th Circuit, with his service on the state court in Oregon, was the longest serving judge in the nation – 65 years. Goodwin was also the oldest serving federal judge at the time of his death, the circuit said.

In 1969, Nixon nominated Goodwin to the U.S. District Court for the District of Oregon. Two years later, Nixon nominated him to the 9th Circuit. He served as chief judge from 1988 until he took senior on Jan. 31, 1991.

Goodwin authored hundreds of opinions throughout his judicial career. He wrote a landmark right of publicity opinion in favor of “Wheel of Fortune” host Vanna White, who sued Samsung for airing a commercial featuring a robot dressed in her likeness and turning letters on a mock Wheel of Fortune board. White v. Samsung Elecs. Am., 971 F.2d 1395 (9th Cir. 1992).

But it was his 2002 opinion in the Pledge of Allegiance case that drew national attention – and ire.

Today at noon CLA presents a webinar titled Preventing Recurring Errors on Appeal -- Prosecutorial Error 

One-liners not so funny...

One-liners are back in the appellate news, and not the punny kind. Law360 has  High Court Again Asked To Review Fed. Circ.'s 1-Line Orders. The Federal Circuit Court of Appeals decides appeals using Rule 36: "A new petition to the high court alerted the justices that "in some years, the Federal Circuit affirmed over 50% of PTAB results using Rule 36; in 2022 it was about 43%.""

For more on this longstanding and controversial topic, see: Rebecca A. Lindhorst, Because I Said So: The Federal Circuit, the PTAB, and the Problem with Rule 36 Affirmances (2018) 69 Case W. Rsrv. L. Rev. 247 and Dennis D. Crouch, Wrongly Affirmed without Opinion (2017) 52 Wake Forest Law Review 561.

More federal judges, please!

Federal Judiciary Seeks New Judgeship Positions

• The Judicial Conference of the United States today agreed to recommend to Congress the creation of new district and court of appeals judgeships (pdf) to meet workload demands in certain courts.
• The recommendation, approved today by the federal Judiciary’s national policy-making body at its biannual meeting in Washington, asks Congress to create two permanent judgeships in the courts of appeals [specifically 2 more for the Ninth Circuit, raising the number of authorized judgeships from 29 to 31], and 66 permanent district court judgeships, convert seven temporary district court judgeships to permanent status, and extend two existing temporary district court judgeships for an additional five years.

The proposal would increase CD Cal's 28 judges with 9 more judges; ED Cal's 6 judges with 4 more; ND Cal's 14 judges with 6 more; and SD Cal's 13 judges with 2 more.

Law.com has Judicial Conference Asks for More Federal Judges at March Meeting -- “There hasn’t been a new judiciary bill to add judgeships for about 30 years,” said Eighth Circuit Court of Appeals Chief Circuit Judge Lavenski Smith.

The last time new judges were added to the federal bench was in 1990 with 11 new circuit seats and 61 in districts. Prior to that, President Jimmy Carter saw the federal bench expand by more than 30%.

Bloomberg Law has Stanford Apologizes to US Circuit Judge for Disrupted Speech -- Students supporting LGBTQ rights protested Fifth Circuit’s Kyle Duncan.

The Recorder has Rory Little's Heckling as Principled Civil Disobedience

Cry against stare decisis!

A Justice Yegan concurring opinion from last week in People v. Arreguin is worth quoting:

"I concur under compulsion of People v. Strong (2022) 13 Cal.5th 698 (Strong). The Court of Appeal is bound to apply the holdings of the California Supreme Court. . . . I reserve my right First Amendment right to express disagreement. (People v. Musante (l980) 102 Cal.App.3d 156, 159, conc. opn. of Gardner, P.J. [“I fully recognize that under the doctrine of stare decisis, I must follow the rulings of the Supreme Court, and if that court wishes to jump off of a figurative Pali, I, lemming-like, must leap right after it. However, I reserve my First Amendment right to kick and scream on my way down to the rocks below”]; see also Witkin, Manual on Appellate Court Opinions (1977) at pp. 168-169 [just because the Court of Appeal is bound does not mean it is gagged].)"

(Hat tip to Prof. Martin on Cal. Appellate Report.) 

Fed Stats out now!

Judiciary’s 2022 Annual Report and Statistics Now Available

According to Table B-4, the median time from appeal to opinion in the 9th Circuit is 13.2 months -- but that's not the slowest! The 1st Circuit is at 14 months. (The fastest is the 8th Circuit at 4.6 months.)

Table B-4A shows the median time for civil appeals in the 9th Circuit is 12.6 months.

Table B-5 shows that the 9th Circuit civil appeal reversal rate is 15%

CA needs clearer law on judgments

Today's DJ has Bob Olson's thoughtful On Judgments -- Meinhardt v. City of Sunnyvale highlights the confusion in California law as to what is or is not a judgment in which he argues that California's law on judgments needs improvement.

In California, statutorily, “[a] judgment is the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc., § 577.) But that definition is circular. It is a judgment, if it is final. But it is final, if it is a judgment. The federal rule would add some needed clarity.

Bottom line:

California should adopt the federal separate judgment rule;

Attorney fee motions and motions for Code of Civil Procedure section 998 costs should stay the finality of judgments; and

Judgments should be cut down to contain only the information essential to enforcement.

The BHBA has posted another installment of Bench Stories on its YouTube channel, this time featuring retired Supreme Court Justice Ming Ching. Watch it here.

Today's DJ also profiles LASC Judge Goorvitch (Oral argument and writing are both important to Judge Stephen Goorvitch), who clerked for Rosemary Pooler and Nora Manella (when she was a C.D.Cal. judge). (The DJ squib puts Judge Pooler on the "2nd District Court of Appeal," but that should be the 2d Circuit Court of Appeals, of course.) He said that clerking for Judge Manella was "the best job I've ever had," and that “Judge Manella used to tell me, ‘A trial judge’s orders are the judge’s brief to the appellate court.’”

5th DCA Admin Order

The Fifth District has posted Administrative Order 2023-3-10: ORDER ON MULTIPLE VOLUME  ELECTRONIC CLERK’S AND REPORTER’S TRANSCRIPTS

It is hereby ordered that effective April 11, 2023, electronic clerk’s and reporter’s transcripts consisting of multiple volumes must be submitted as a single PDF, while maintaining the individual components outlined in California Rules of Court, rules 8.74 and 8.144, in order to comply with the 300-page per volume requirements. 

Scalia biography vol. 1 out

 

The Wall St. Journal has a book review:

‘Scalia’ Review: The Supreme Court’s Constitutional Caretaker
In the first volume of his biography, Antonin Scalia, the son of an immigrant, ascends to the heights of the legal profession.

In “Scalia: Rise to Greatness,” the first installment of a two-volume biography, James Rosen, chief White House correspondent for Newsmax, captures Scalia’s brilliance and magnetism. Mr. Rosen’s stylish prose carries the reader through Scalia’s upbringing, education and professional accomplishments. By the end, one has a keener appreciation of a period in Scalia’s life that earlier biographers have played down or misunderstood.

Also of note from Law.com: ChatGPT Helped Write a Court Ruling in Colombia. Here's What Judges Say About Its Use in Decision Making

No, don't do these things...

What appellants should not to do:

1) file a reply brief that ignores the respondent's argument that the opening brief should be stricken for failing to comply with the rules of court.

2) file a reply brief that ignores the respondent's argument that the appeal was filed late.

3) ignore a notice from the Court of Appeal requesting supplemental briefing on whether the appeal should be dismissed as untimely.

4) Send the court of appeal clerk a two-sentence email a week after the deadline set by the court for supplemental briefing asking for an extension based on ongoing trial work. Don't cc opposing counsel.

Why not? Because the appeal will be dismissed, as here, that's why!

The ABA Journal has a piece by Connecticut Judge Thomas Moukawsher titled Judges: Guard 'your honor' responding to the May 2022 piece by Kentucky Judge Benjamin Beaton (Don't call me 'Your Honor'). Judge Moukawsher concludes:

I’m proud to hear those words because they remind me that the public expects us to aim to our utmost ability to wield what power we have nobly and wisely. We rightly remind judges of their burdens, our expectations, and indeed, our demands when we greet them with, “Good morning, your honor.”

DJ profiles Justice Meehan

Today's DJ has After a successful civil law career, Justice Kathleen Meehan came home to Fresno: 5th District justice has deep roots in Fresno County.

• Probably more than any other appellate court in California, the 5th District Court of Appeal is mostly occupied by locals. Meehan, Justice Donald R. Franson Jr. and Justice Mark W. Snauffer are all graduates of Bullard High School in Fresno. Meehan and Snauffer were on the debate team at the same time. Presiding Justice Brad R. Hill and Justices Rosendo Peña Jr., Bert Levy and Charles S. Poochigian all grew up in Fresno or the surrounding county. Justice Thomas DeSantos hails from just over the Kings County line in Hanford.
• Meehan said Fresno is a more traditional, slower changing place than many other parts of California. But there was also plenty going on there when she was growing up in the 1960s and 1970s. Many of the biggest musical acts of the time came through a pair of local concert venues, the Fresno Convention Center and the Rainbow Ballroom. She saw Janis Joplin with Big Brother & the Holding Company, the Grateful Dead, Buffalo Springfield and The Doors — twice — with ticket prices usually $3 or $4.
• Like many of her colleagues, Meehan left the area for a time and then returned to the place where most of her family still lives. She had a successful decadelong run as a civil attorney in Los Angeles, working for three firms at the outset of her career. Then came the 1994 Northridge earthquake. The shaking smashed a cabinet full of collectible china in the Beverly Hills home where she lived with her husband. “Like a fool,” Meehan said, she got dressed and drove to work after the overnight temblor — only to find the parking garage at her office had collapsed.
• Meehan said love of Notre Dame football was part of the identity of her “Irish on both sides” family; she still regularly tunes in to watch the team.
• Meehan said she wanted to be a lawyer from a young age. But her route to the profession was still long. She attended St. Mary’s College in Moraga, where she got a liberal arts degree and met her husband. Wanting more real world experience, she got a job as a stockbroker at the main headquarters of Dean Witter in San Francisco. As one of two women on the trading floor, she said, her co-workers’ “constant catcalls and comments” made it clear the women “were not welcome.”
• Meehan said she loves the research and analysis of her current job. But even though she can look around the office and see people she went to high school with, she said both Fresno and the court have changed. The city has grown and sprawled, and a big new cadre of attorneys now appear before her, many from other places.