RBG Stamp / Shutdown stories

Bloomberg Law has Ginsburg Stamp Release to Mark Start of US Supreme Court Term

• The stamp is the latest of nearly 30 Supreme Court related stamps that have been issued since 1894, according to the court’s website.
• The first-day-of-issue ceremony will be held at the National Portrait Gallery on Oct. 2, hours after the current justices hear their first case of the 2023 term and approximately 30 years after Ginsburg was nominated to the high court bench by Bill Clinton.

Bloomberg Law also has Shutdown Nothing New for Longest Serving Circuit Court Clerk -- Michael Gans, the longest serving federal appeals court clerk, may be feeling déjà vu as the US government braces for a possible shutdown. He’s gone through nearly a dozen during four decades at the US Court of Appeals for the Eighth Circuit in St. Louis, and, once again, the court he helps run will stay open.

• Several circuit courts have posted notices on their websites recently notifying practitioners that they’d remain open, filing deadlines would remain in effect, and oral arguments set for October would continue as scheduled.
• The judiciary, which employs nearly 30,000, almost ran out of money during the last shutdown, in 2018.

Law.com has Circuit Court Clerks Brace for ‘Significant Impact’ If Government Shuts Down -- Oral arguments could proceed, but U.S. agency lawyers might need to request postponements, clerks say.

2d District pro tem update

 

The following judges are sitting pro tem in the 2d District:

• Judge Ruth Ann Kwan of the Los Angeles Superior Court will be sitting Pro Tem in Division Two from October 1, 2023 until October 31, 2023    
• Judge Rebekah B. Evenson of the Alameda Superior Court will be sitting Pro Tem in Division Seven from October 15, 2023 until December 15, 2023

Can't shutdown the 9th Cir.!

The United States Court of Appeals for the Ninth Circuit Will Continue Operations During Lapse in Appropriations or Shutdown

In the event there is a government shutdown caused by the House and Senate’s failure to timely enact an annual appropriations act or a continuing resolution, the Ninth Circuit will continue its court operations.  The court will continue to docket new cases, receive documents for filing, determine motions, hear cases on submission and by argument, and decide cases. 

Cases currently calendared for oral argument on the weeks of October 2-6 and October 16-20 will go forward as scheduled.  Therefore, parties remain obligated to comply with the filing requirements of the Federal Rules of Appellate Procedure and this court’s Local Rules.  Because the court will remain open for business during any shutdown, filing dates will not be automatically extended.  The court will, however, consider requests for continuances or extensions of time. 

We will continue to keep you updated with any changes.  If you have questions, please contact: Questions@ca9.uscourts.gov.

Honor for J.Corrigan

California Supreme Court Justice Carol Corrigan Honored with Humanitarian Award

Justice Corrigan received the award from the California Judges Association for her work with the Saint Vincent’s Day Home, a West Oakland nonprofit that supports low-income families in need of daycare, preschool, and kindergarten.

“I don’t think I’ve ever met a Black appellate attorney.”

The Recorder has Shandyn Pierce's article Blum’s Attack on Diversity: Forcing BIPOC Attorneys to ‘Show Their Papers’ which begins:

“I don’t think I’ve ever met a Black appellate attorney.”
It was a bold but honest statement, uttered by a non-Black attorney at a recent litigation conference. The sentiment behind it was so genuine I found it hard to be offended.

State-by-State Guide to Supreme Courts

Bolts digital magazine presents Your State-by-State Guide to Every State Supreme Court

For each of these 54 courts (Oklahoma and Texas each have two high courts), Bolts fleshes out its structure, how judges make it on and get to stay on it, the scope of its judicial powers, and its other critical rulemaking and policymaking roles.

Same, but slightly different. 

The 9/26/23 DJ had Summer spate might mean faster Supreme Court rulings

A productive summer suggests the California Supreme Court might be delivering opinions more quickly.
According to its Year in Review report on Monday, the court issued 55 written opinions between Sept. 1, 2022, and Aug. 31 of this year. This includes 27 written opinions for the summer period of June, July and August. While these are low numbers by historical standards, they represent a significant jump from the 49 written opinions the court delivered over the same period a year earlier.

“The annual report shows a slight uptick in opinion production since last year, but the numbers since fiscal year 2020 are still at historic lows, and the court remains far behind the 92 opinions produced in fiscal year 2019, which is closer to the norm,” said retired appellate attorney Jon B. Eisenberg, who has filed complaints with the Commission on Judicial Performance over delays on state appellate courts. “I expect we’ll continue to see rising production as Chief Justice Guerrero settles into her very challenging new job.”

The court averaged about 79 written opinions during Cantil-Sakauye’s time as chief justice. By comparison, under Chief Justice Ronald M. George between 1996 and the beginning of 2011, the court issued almost 109 written opinions per year.

CJA hearing this morning for J.Gooding (4/3)

Commission to Consider Judge Martha Gooding to the Fourth District Court of Appeal
The Commission on Judicial Appointments will hold a public hearing on September 26 starting at 11 a.m. to consider the appointment of Judge Martha Gooding as an associate justice of the Fourth District Court of Appeal, Division Three (Santa Ana).

And, voila...

Commission Confirms Appointment to Court of Appeal
Chief Justice Patricia Guerrero, chair of the Commission on Judicial Appointments, announced that the commission today confirmed Judge Martha Gooding as an associate justice of the Fourth District Court of Appeal, Division Three (Santa Ana).

Judge Martha Gooding fills the vacancy created by the retirement of the late Justice Richard D. Fybel. Judge Gooding has served as an Orange County Superior Court judge since 2013. Judge Gooding was a partner at Jones Day from 2011 to 2013, and a partner at Howrey LLP from 2000 to 2011. Judge Gooding was also a partner at Howard Rice Nemerovski Canady Falk and Rabkin from 1989 to 2000, where she was also an associate from 1983 to 1989. She earned a Juris Doctor degree from the University of California, Berkeley School of Law.

The Recorder has Commission Confirms Former Jones Day Partner to 4th District Court of Appeal -- The newly confirmed associate justice, who worked as a Jones Day partner before landing on the state court bench, fills the vacancy created by the March 2022 retirement of Justice Richard Fybel, who died from cancer in December.

The DJ has OC Superior Court judge confirmed to 4th District Court of Appeal

Law360 has Ex-Jones Day Atty Confirmed To Calif. Appellate Seat

Gooding grew up in Southern California, raised in Gardena, but her family moved to Houston when she was 11 so her father could take a job with NASA. However, the family returned before she finished high school, where she was the class valedictorian. She went on to earn her law degree in 1981 from the University of California, Berkeley School of Law, where she was first in her class.

Equity Typeface adopted in GA

Law360 has Equity (The Typeface) Coming To Georgia Appellate Opinions

• For the first time in two decades, the Court of Appeals of Georgia will switch the typeface it uses to write opinions from the staid Times New Roman to a style specifically designed for the legal industry.
• [The] move toward Equity was influenced by the U.S. Court of Appeals for the Fifth Circuit, which adopted the typeface a few years ago
• Equity designer and practicing attorney Matthew Butterick told Law360 that he started work on the font more than a decade ago, after publishing "Typography for Lawyers," a guide to using printing style to improve presentation of legal arguments. His font was meant as a partial answer to the ubiquitous Times New Roman, which Butterick describes as "an absence of a font choice."
• Equity is easier to read and more elegant than Times New Roman, but allows attorneys to fit the same number of words per page, a criticism he heard about other font styles, Butterick said.

Today's DJ has A better solution than resurrecting SB 662 is on its way by Mary E. Pierce of the Deposition Reporters Association of California questioning SB 662, which proposes allowing electronically recording court proceedings if a Certified Shorthand Reporter is not available.

SCOC Year in Review

The Judicial Council's newsroom has posted Year in Review: California Supreme Court
Highlights and key statistics from the 2022–2023 court year.

• The California Supreme Court issued 55 written majority opinions during the September 2022–August 2023 court year
• The court received 5,420 filings, including 2,860 petitions for review arising out of cases from California’s six appellate court districts, and resolved 5,829 filings, including 3,152 petitions for review.
• 18 Court of Appeal opinions were depublished

DJ article re Justice Chin (ret.)

Last week's CLA meeting featured a program with CJ Guerrero and retired Justice Chin, prompting a DJ article today: Retired justice Ming W. Chin is more practiced at reticence -- The former state Supreme Court justice has learned to avoid speaking on political questions, but still calls for an independent judiciary.

Chin retired from the high court on his 78th birthday, Aug. 31, 2020, having served 24 years on the bench. He was first appointed in 1988 as a judge of the Alameda County Superior Court. In August 1990, Gov. George Deukmejian elevated Chin to the 1st District Court of Appeal. ....

Chin reflected on how, during a lunch in San Francisco with the now-retired U.S. Supreme Court Justice Stephen Breyer, they compared the processes of the two courts. “We had a very eye-opening lunch,” Chin said. “At the U.S. Supreme Court, Justice Breyer said that they don’t talk to each other about the cases before oral argument. Our process is just the opposite.” “Everyone turns in preliminary responses,” Chin added. “‘I concur,’ ‘I concur with reservations,’ or, ‘If this becomes an opinion of the court, I will dissent.’ So, everyone checks in early on where they stand on that case.” ... “The chambers are talking about that case and by the time it gets to oral argument, everyone knows what the positions are from each of the justices. So, we know where the weaknesses are, and we know where the strengths are. This is long before the case is set for oral argument,” Chin said. “I think that’s one of the major reasons why we have unanimity. We were all trained very well: we could disagree, but not be disagreeable.”

Bloomberg Law has Newman Sanction Renews Debate Over Aging Judges’ Lifetime Tenure

And in this unpub here, 4/1 declines (in a "close call" situation) to award sanctions for a frivolous appeal, even though the appeal "stretches the bounds of zealous advocacy at times" and "also uses unnecessarily derogative language."

 

Kagan on SCOTUS ethics

Bloomberg Law has Kagan Hopeful for Supreme Court Code Amid Ethics Allegations

Elena Kagan became the latest justice to weigh in on the need for a Supreme Court code of ethics, confirming that it’s “been a subject of conversation within the court.” Adopting a code “would go far in persuading other people that we were adhering to the highest standards of conduct,” Kagan said Friday at Notre Dame Law School. She also said a code would help the justices with their own compliance with ethical rules.

[Law360 has Kagan Calls High Court Ethics Code A 'Good Idea']

Justice Barrett on opinions

The NLJ has Justice Barrett on Originalism and Why She Doesn’t Write So Many Opinions -- Judges should be “very, very careful” about how historical evidence is used in constitutional adjudication, Barrett says in talk at Catholic University's law school.

Justice Amy Coney Barrett, who enters her fourth U.S. Supreme Court term next month, has left a relatively light paper trail of her views compared with some of her colleagues. Her majority opinions tend to be on the shorter side, and only rarely does she write concurrences. All the while, she has wielded a powerful vote as one of the court’s median justices.

Bloomberg Law has Break the Law or Leave No Record, California Courts Face Dilemma

Shasta County Superior Court chose to tape its proceedings, in violation of state law, in 2021. With no full-time court reporters on staff and none willing to travel to California’s Shasta County, the court had few options.

How do you feel about SLAPP appeals?

Regarding today's published 9th Cir. opinion in Martinez v. Zoominfo, The Recorder has 9th Circuit Judges Criticize Court's Early Open Door to Anti-SLAPP Appeals -- Ninth Circuit Judge M. Margaret McKeown said the court has “turned a blind eye to the incongruity” of reviewing on interlocutory appeal denials of anti-SLAPP motions to strike “for too long."

Two judges on the U.S. Court of Appeals for the Ninth Circuit wrote separately on Thursday critiquing the court’s practice of taking up appeals of failed anti-SLAPP motions. The ruling considers a motion to strike under California’s anti-SLAPP statute—a law blocking litigation that seeks to silence free speech. In concurrences, Judge M. Margaret McKeown and Roopali H. Desai of the U.S. Court of Appeals for the Ninth Circuit underlined that the court’s precedent allowing for review of denials of motions to strike under anti-SLAPP laws falls within the minority of the court’s sister circuits. The judges asserted that the motions do not qualify for appeal at the Ninth Circuit before final judgment at the trial court.

[9/22/23 The DJ's story is Right of publicity claim exempt from anti-SLAPP law and Law360's story is 
Judges Urge 9th Circ. To Stop Hearing Anti-SLAPP Appeals]

Newman suspension articles

Law360 has Newman Given 1-Year Suspension For Refusing Medical Tests and Newman's Suspension Met With Concern And Questions -- "Wednesday's suspension of Federal Circuit Judge Pauline Newman by her colleagues amid an investigation into her mental fitness is an unfortunate outcome in a difficult case, which raises questions about the acrimonious process and does not reflect well on the court"

[Law360 has Newman's Push Against Suspension Called Probe 'Baseless']

Today's DJ profile is Los Angeles Judge Gia Kim reverences the power of words to bring justice -- Family law judge dissects information, attorneys say. Judge Kim, who has a PhD in English, clerked for 9th Cir. Judge William Fletcher, and had an appellate practice, including in the Federal Public Defender's Office.

Today's DJ also has Justice Hoffstadt's "When is an acquittal not an acquittal?"

Bloomberg Law has posted this short video: Supreme Court's Ethical Dilemmas Began Before Clarence Thomas

Fed. Cir. Judge suspended

Law360 reports Newman Given 1-Year Suspension For Refusing Medical Tests -- Federal Circuit Judge Pauline Newman was suspended Wednesday from hearing any cases for one year, after the court's other active judges said their 96-year-old colleague derailed an investigation into whether she is mentally fit to serve as judge by not agreeing to medical tests.

Bloomberg Law has Embattled 96-Year-Old Judge Suspended in Disability Probe and Judiciary Has Funds for Two Weeks if Government Shuts Down

Law360 has Scalia's Son To Make High Court Debut In Whistleblower Case

LASC NOA filing fee e-payments

NEW ELECTRONIC PAYMENT OPTION FOR NOTICE OF APPEAL FILING FEES IN CIVIL CASES

Effective September 23, parties filing a Notice of Appeal in a civil case will no longer have to pay the required $775 Court of Appeal filing fee in person and instead may electronically pay this fee as part of the electronic filing (efiling) process.

Pursuant to California Rule of Court 8.100(b), a Notice of Appeal must be accompanied by a $775 filing fee. This filing fee is received by the Superior Court and transferred to the District Court of Appeal.

The new electronic payment option will automatically appear during the efiling process. Parties who would like to continue to pay this fee in person may continue to do so, either directly at the Court of Appeal at 300 S. Spring St., Room B-228, in Los Angeles, or at the Clerk’s Office in Room 111 at the Stanley Mosk Courthouse, located at 111 N. Hill St., Los Angeles.

2d DCA Courtroom update

2d District: Court Files Miscellaneous Order 2023-02

We are pleased to announce the eagerly awaited re-opening of the Second Appellate District Courtroom. Starting with the November 2023 calendar, the Second Appellate District Courtroom will be open for in-person oral arguments. We will continue to closely monitor the public health situation and adhere to any guidelines or recommendations provided by health authorities to ensure the safety of all participants.

Today, the Court of Appeal, Second Appellate District issued Miscellaneous Order 2023-02. This order outlines essential protocols for courtroom attendance with the primary goal of preventing the spread of COVID-19. We highly encourage all parties involved in our judicial proceedings to familiarize themselves with the provisions of this order to ensure a safe and responsible environment for all.

Click here to read the full order

Reminder: CA courts closed Friday

Reminder: All California courts will be closed this Friday, September 22nd, 2023, in observance of Native American Day.

(Other CA court holidays for the rest of the year are Veterans Day (Friday, 11/10), Thanksgiving & Day After (11/23-24), Christmas Day (12/25)).

New FDR & SCOTUS book

Wall St. Journal book review: ‘The Court at War’ Review: Roosevelt and His Justices -- By 1943, only one Supreme Court justice didn’t owe his job to FDR. The rest seemed to think they worked for the president. The review begins:

Franklin Roosevelt needed a new running mate for his fourth presidential election, in 1944. He agreed with Democratic Party leaders that his oddball vice president, Henry Wallace, had become a liability. In the end he chose Missouri Sen. Harry Truman, but he came very close to picking one of the justices he had appointed to the Supreme Court, William O. Douglas, who badly wanted the job. Douglas regularly attended the president’s poker parties and made dry martinis that FDR particularly liked.

The strangest thing about the Douglas-for-veep episode—so we gather from “The Court at War,” Cliff Sloan’s history of the Supreme Court from about 1939 to 1945—is that hardly anybody at the time thought it strange. The chumminess between the president and his justices was, in one way, to be expected. By 1943 FDR had appointed seven of the court’s nine justices: Hugo Black, Stanley Reed, Felix Frankfurter, Frank Murphy, Robert Jackson, Wiley Rutledge and Douglas himself. Harlan Stone had been appointed by Calvin Coolidge, but FDR made him chief justice. Only Owen Roberts, a Hoover appointee, didn’t owe his job to Roosevelt.

Courthouses named for SCOC Justices!

Council Approves Naming Two Courthouses After Distinguished Jurists and Public Servants

Recognizes role models of diversity, equity, and inclusion: former Chief Justice Tani Cantil-Sakauye and former Supreme Court Justice Cruz Reynoso.

The Judicial Council at its September 19 meeting voted to name the new downtown Sacramento courthouse under construction after former Chief Justice Tani Cantil-Sakauye and rename the Court of Appeal in Santa Ana after former Supreme Court Justice Cruz Reynoso.

Born and raised in Orange County, Justice Reynoso was a trailblazing lawyer, jurist, and law professor. He became the first Latino associate justice of the California Supreme Court, serving from 1982 to 1987. “Justice Reynoso is an excellent example of someone who came from humble beginnings to go on to achieve extraordinary success,” said Kathleen E. O'Leary, who serves as presiding justice of the appellate court in Santa Ana. “A role model to whom you can personally relate can be the most effective. The goal is that young Latinos who see the courthouse will aspire to dream bigger and realize their full potential.”

[The Recorder has Judicial Council Votes to Name Courthouses for Cantil-Sakauye, Reynoso]

Newman honored; Sotomayor in cartoon

Bloomberg Law has 96-Year-Old Suspended Judge Honored at Patent Law Conference

Pauline Newman, the nation’s oldest active federal judge, accepted plaudits and gave out an award named for her at a gathering for patent attorneys, while she continues to battle a disability and misconduct probe that partially sidelined her on the Federal Circuit.

The LA Times has On ‘Alma’s Way,’ Sonia Manzano welcomes ‘the other Sonia from the Bronx’: Justice Sotomayor

On the subject of 9th Circuit stare decisis, see this opinion with conflicting views.

Cal Courts Newsroom has Court Outreach Programs Make a Comeback

Many judges feel a sense of duty to serve their community. In California, when a judge is sworn in, they are reminded of Standard 10.5 of the Standards of Judicial Administration: “Judicial participation in community outreach activities should be considered an official judicial function to promote public understanding of and confidence in the administration of justice.”

And see Judicial Council Names Shelley Curran Next Administrative Director -- Curran, the council’s chief policy and research officer, will assume the judicial branch leadership role Jan. 1.

Justices Edmon & Slough win JC Awards

Congrats to Justices Edmon and Slough who will received the Judicial Council's 2023 Distinguished Service Award. 

Presiding Justice Lee Smalley Edmon has been instrumental in supporting efforts to expand the diversity of California’s judiciary. She serves as co-chair of the California Judicial Mentor Program for the appellate courts, which expanded branch diversity efforts to support attorneys interested in becoming appellate justices. She also served as the national co-chair of the American Bar Association’s Section of Litigation Judicial Intern Opportunity Program, which provides opportunities for diverse law students to serve as summer interns with state and federal judges across the country.

Justice Marsha Slough has been a leading voice on key branch initiatives through three consecutive terms on the Judicial Council. She chaired the council’s Executive and Planning Committee and played a key role in drafting emergency court rules during the COVID-19 pandemic, which helped curb the spread of the virus in California jails, reduce evictions and foreclosures, and encourage the use of remote technology to maintain access to the courts.

Appellate round up

NLJ has The Supreme Court Term's Biggest Matchup: DOJ vs. Fifth Circuit -- The justices have agreed to hear several Biden administration appeals from the Fifth Circuit, a right-leaning tribunal often surprisingly overturned by the conservative high court.

The Marble Palace Blog has A New Play Unfolds the Wit and Wisdom of Oliver Wendell Holmes -- Holmes, a famed Supreme Court justice more than a hundred years ago, will be portrayed by a solo actor at D.C.'s Arena Stage in October.

• Thurgood Marshall was played in ”Thurgood” by Laurence Fishburne in 2008, Antonin Scalia was portrayed by Edward Gero in “The Originalist” in 2015 and Ruth Bader Ginsburg was featured in “Of Many, One” in Australia and “All Things Equal” around the country recently.
• William O. Douglas was portrayed in the one-man play “Mountain” at the National Theater in 1990. ”Courting Harry” featured Warren Burger and Harry Blackmun in 2013, and “Father Chief Justice” portrayed Edward Douglass White in a play by Louisiana State University.
• As for Holmes himself, he was the featured subject in “The Magnificent Yankee” on Broadway and in film in 1946, covering Holmes’ tenure on the court.

Bloomberg Law has Aliza Shatzman's Clerkships Are a Pipeline to the Bench. We Need to Diversify Them

In 2019, 79% of federal law clerks and 72% of state court clerks were White. Clerks are also disproportionately male and from a handful of top schools. As law students and the profession generally have diversified, judicial clerks and the judiciary haven’t. Both judges and law schools can make clerkships and pathways to the bench more accessible.

The Recorder has Nanci Nishimura and David Carrillo's Federal Courts Should Do Judicial Ethics California-Style

The DJ has Myron Moskovitz in Part I on interpreting our constitution: the traditional approaches

On Oct. 2 at 12:30, BHBA presents SCOTUS Preview with Erwin Chemerinsky and Kimberly Atkins Stohr -- Renowned experts Dean Erwin Chemerinsky of Berkeley Law and Kimberly Atkins Stohr of The Boston Globe will preview the upcoming U.S. Supreme Court term.

Law360 has Retired Justice Breyer Discusses The Importance Of Listening and Supreme Court Approval Rating Up Amid Ethics Questions

This year's online survey of 1,482 U.S. adults found that 49% of respondents approve of the way the Supreme Court is handling its job, while 51% disapprove. Last year's study showed that 42% approved and 58% did not approve.

Warren Bldg elevators out of service

"Both passenger elevators in the Earl Warren Building at 350 McAllister Street are out of service for necessary modernization, from September 11, 2023 until the end of February 2024. During this period, counsel, parties and the public attending oral argument at the Court of Appeal, First Appellate District, will be escorted by building security to an alternative elevator, to the fourth floor, and to the courtroom entrance. We recommend that whenever possible, those wishing to attend oral argument arrive a few minutes earlier than usual."

DC Cir./Fed Cir. tidbits

Two appellatey articles from Bloomberg Law today:

DC Circuit Bests Supreme Court for Women Advocate Arguments -- Women argued 28% of time at DC Circuit, 24% at Supreme Court. Non-government female attorneys argued more.

Former Fed. Circuit Judge Predicts Shake-Up on Influential Court -- A former judge on the US Court of Appeals for the Federal Circuit urged a trade group to prepare for turnover on the influential court with jurisdiction over patent cases. The appellate court has five members older than 70.

9th Cir. wants to see you in person?

The following notice was posted, but then removed, from the 9th Circuit website:

Beginning in January 2024, attorneys and unrepresented parties invited to appear in this court [the 9th Circuit] for oral arguments are expected to appear in person. Any party or attorney for whom in person appearance would pose a hardship may file a motion to appear remotely. Click [here] for more information.

The NLJ has Is the Supreme Court Actually Deciding ‘Cases’ or ‘Controversies’? -- Critics say the justices are deciding sweeping legal issues based on questionable factual assertions, or as some say, “fake cases.”

The MetNews has Ninth U.S. Circuit Should Bow to State C.A.’s Interpretation of California Law—Bumatay -- Panel Should Follow Lavin’s 2018 Opinion, Not Reinhardt’s 1994 Decision, Dissenter Says

9th Circuit ACMS webinars

As of October 1, 2023, all new appeals and original proceedings in the Ninth Circuit Court of Appeals will be opened and processed in this Court's new electronic filing system, ACMS (Appellate Case Management System). Notices of appeal will continue to be filed in the lower court but appeals will be opened in this Court in ACMS. New counseled original proceedings (petitions for writ of mandamus/prohibition and petitions for permission to appeal) must be submitted electronically through your ACMS Portal. Appeals and original proceedings opened in this Court in CM/ECF prior to October 1, 2023 will continue to be processed in CM/ECF. Please note that Notice of Docket Activity emails for cases in ACMS are sent from ca9.fedcourts.us, while those notices for cases in CM/ECF are sent from ca9.uscourts.gov, and ensure that your spam filters are set to allow emails from both domains.
All attorneys and parties who are registered for electronic filing in the Ninth Circuit will automatically have access to the ACMS Portal using their PACER credentials. You can find more information about ACMS, as well as a link to the Portal https://ca9-portal.powerappsportals.us/ and the Administrative Order Regarding ACMS https://cdn.ca9.uscourts.gov/datastore/general/2023/06/16/Admin-order-final-June-2023.pdf on our website at https://www.ca9.uscourts.gov/efiling/acms/

The Court will provide two open Zoom training sessions for anyone who would like a demonstration of the new system, and will post a recording of the first session on the website at the above-referenced link. These sessions will occur on the following dates at the link below:

Monday September 18 at 11:00 AM PDT
Tuesday October 17 at 11:00 AM PDT

https://www.zoomgov.com/j/16101846149?pwd=MEZpeXBLWlNRR3BFRlFmbjIxM1Vndz09
Meeting ID: 161 0184 6149
Passcode: 104582

Geoffrey Wright Fellowship

 

The Geoffrey Wright Fellowship (previously known as the Earl Warren Fellowship) is a unique and wonderful opportunity for early-career lawyers interested in appellate litigation. Fellows spend two years in the California Department of Justice's Office of the Solicitor General, where they get to work on some of the State's (and Nation's) most complex and high-profile appeals. Fellows (who have gone on to do great things afterwards) always report that they found the Fellowship a fun and valuable experience. Applications are due October 23 for the next opportunity.

To begin the application process, fill out a State application (STD 678) and the Wright Fellowship Application. You will also need to provide a resume, a writing sample, a personal statement, two letters of recommendation, and law school transcripts.

Judges as umpires

Law360 has Justice Kavanaugh: 'Being A Judge Is Like Being An Umpire'

• Justice Kavanaugh's remarks came during a question-and-answer session with Sixth Circuit Judges Jeffrey S. Sutton and Stephanie Dawkins Davis on the second day of a three-day Judicial Conference of the Sixth Circuit at the Hilton Downtown Cleveland.
• "The Supreme Court is an institution of law, not of politics and not of partisanship," Justice Kavanaugh said.
• As a former D.C. Circuit judge, Justice Kavanaugh said it's also important for a judge to accept the precedent, no matter what.
• Another peeve is a trend of judges writing opinions more suitable for social media than a proper court document, he said.

This week's DJ had its Top 100 Lawyers supplement which includes some appellatey folks, e.g., Peter Stris, Mira Hashmall, and Theane Evangelis.

Circuit Clerks article

U.S. Courts News has Longtime Clerks Recall ‘Seismic Shift’ in Appellate Courts

Michael Gans, of the Eighth Circuit, is the longest-serving clerk of court for a federal court of appeals.

“I often say that if you could bring someone from the clerk’s office in 1920 into the same office in 1985, they would be able to sit down and do the job. But somebody who worked here in 2000 would not be able to do the work today.” Gans was promoted to clerk of court in August 1991, and with 32 years of service, he is the nation’s longest-tenured clerk of court for a federal court of appeals.

• The federal law governing appellate clerks of courts was passed in 1948. However, such positions have existed since 1891, when Congress established the modern appellate system
• Clerks of appellate courts are both managers and lawyers. In addition to maintaining records and managing administrative staff, they make legal decisions on many procedural matters.
• Each appellate court has its own history and culture.

Blumberg Law has Biden’s Bipartisan Appellate Nominees Attract GOP Scrutiny

Law360 has 'I'm Not An Ordinary Litigant': Solicitor General On Role, Goals -- U.S. Solicitor General Elizabeth Prelogar spoke at the Sixth Circuit's conference about the high bar that comes with her position and spoke on the weight of being the second woman to hold the job.

When asked for advice on how to be an effective oral advocate, Prelogar said lawyers have a wide variety of courtroom styles — those who are animated and warm, and those who are calm and take the temperature of a room down. "I've seen great heaters and great coolers," she said. "You need to be true to yourself as an advocate. You can't adopt a persona. Oral argument is truth serum. When you're up there getting grilled by nine justices, the real you has to come out."

3d DCA visits McGeorge

Third Appellate District in Sacramento to Host Oral Argument Outreach Session

• Administrative Presiding Justice Laurie M. Earl announced the Court of Appeal, Third Appellate District will host a special oral argument session for students at McGeorge School of Law on Sept. 13 starting at 10 a.m.
• Since 2000, the Third Appellate District has held oral argument sessions in 30 high schools and one law school in 20 counties of its district. This will be the first special session held by the Third Appellate District since the COVID-19 pandemic.
• As part of this educational experience, justices of the Third Appellate District will discuss their career paths with the students and conduct a question-and-answer period immediately following oral argument.

Court reporters? Judges? Bueller?

Today's DJ has LA court reporter hiring is stagnant, incentives hiked -- Despite the first round of incentives in February, court reporter vacancies “have remained relatively unchanged, with the number of court reporters leaving court service continuing to outpace the number of new court reporters entering court service,” the court stated.

And the DJ has Judge shortages will get worse, Jessner predicts -- “There are public sector positions that pay in excess of what judges make. Some deputy DAs make more money than judges,” said Yolo County Judge David Rosenberg, president of the California Judges Association.

The NLJ has How Do You Make Amicus Briefs a True Friend of the Supreme Court? -- Lawyers whose friend-of-the-court filings wound up in majority opinions share their advice. Say something new. Provide expertise and experience.

Dean Chemersinky gets Frank Award

The 9th Circuit announces: Erwin Chemerinsky Awarded Prestigious 2023 John P. Frank Award

The John P. Frank Award, established in 2003, recognizes a lawyer who has “demonstrated outstanding character and integrity; dedication to the rule of law; proficiency as a trial and appellate lawyer; success in promoting collegiality among members of the bench and bar; and a lifetime of service to the federal courts of the Ninth Circuit.”

 

“In the tradition of legendary Phoenix attorney John P. Frank, Dean Erwin Chemerinsky is both a great lawyer and a great teacher,” said U.S. Ninth Circuit Chief Judge Emerita Mary M. Schroeder. “His is a voice that stands up for the constitution, judicial independence and the Rule of Law whenever they are threatened. Dean Chemerinsky lectures widely as an exceptionally articulate scholar of United States Supreme Court decisions and is known as a friend and supporter of judges and lawyers everywhere. He is a most worthy recipient of this year’s Ninth Circuit “lawyer’s lawyer” award, created by our attorney Ninth Circuit Advisory Board and named in honor of Mr. Frank.”

3d DCA pro tem update

The following are currently sitting on assignment in the Third District:

• Associate Justice Rebecca A. Wiseman, retired, will be sitting in pro tempore beginning July 15, 2023, through September 15, 2023.
• Judge Clare Keithley of the Butte County Superior Court will be sitting in pro tempore beginning September 5, 2023, through November 3, 2023.
• Judge Garen J. Horst of the Placer County Superior Court sitting in pro tempore from May 1, 2023, through August 31, 2023.
• Judge Samuel T. McAdam of the Yolo County Superior Court sitting in pro tempore from January 1, 2023, through April 30, 2023.

Alito, AI, Attorney Fees

Law360 has Sen. Whitehouse Files Ethics Complaint Against Justice Alito -- Sen. Sheldon Whitehouse, D-R.I., wrote to Supreme Court Justice John Roberts on Monday to file an ethics complaint against Justice Samuel Alito for alleged violations of "several canons of judicial ethics, including standards the Supreme Court has long applied to itself. "

Myron Moskovitz's DJ column today is My AI Nightmare, in which he imagines the Terminator as an appellate lawyer. He concludes that "at least for now" humans make better appellate lawyers than machines because AI can't apply intuition to pick up unstated cues at oral argument: "appellate judges tend to ask questions rather than make comments. But simply answering their questions literally is a big mistake. Behind every judge’s question lurks a viewpoint."

And the DJ's Exceptionally Appealing monthly column has Apostrophic Apotheosis: Whose fees are they, anyway? Prompted by Estate of Gentry v. Hamilton-Ryker IT Solutions, 3:19-CV-00320, 2023 WL 5018432, at *1 n.2 (S.D. Tex. Aug. 7, 2023), this piece attempts to tackle one of the "burning legal questions of our generation," “Is the proper term ‘attorney fees,’ ‘attorneys fees,’ ‘attorney’s fees,’ or ‘attorneys’ fees?’”

Blumberg Law has Color of Justice: All-White Benches Persist in US District Courts -- Of the 94 federal district courts, 25 have never had a non-White judge, according to a Bloomberg Law analysis of federal court records.

Law360 has Here's Where Judicial Vacancies Stand As Congress Returns

• The Biden administration has gotten 140 judges (including a Supreme Court justice) confirmed so far, a fact much celebrated by the White House and Democrats. But at the end of August, that impressive number still trailed the 146 secured by Trump at the same point in his administration
• As of Sept. 1, there are seven vacancies on appeals courts, which are in the First, Third, Fourth, Fifth, Seventh, Ninth and Tenth circuits. Four of the seven vacancies have nominees, according to the Administrative Office of the U.S. Courts. Biden also can nominate a successor to Judge Julia Smith Gibbons of the Sixth Circuit, who plans to take senior status when her successor is confirmed.
• There are 61 vacancies for district courts as of Sept. 1, with 25 nominees pending.

And see LASC's press release today: NATION’S LARGEST TRIAL COURT EXPANDS UNPRECEDENTED RECRUITMENT AND RETENTION CAMPAIGN TO ADDRESS CHRONIC  COURT REPORTER SHORTAGE

Preserving issues in federal court

Law360 has Blaine Evanson and Jeremy Christiansen's article on Dupree v. Younger, How 'Purely Legal' Issues Ruling Applies To Rule 12 Motions

Which begins:

This past term, the U.S. Supreme Court resolved a decadeslong circuit conflict in Dupree v. Younger, holding that purely legal issues resolved on summary judgment need not be reraised in post-trial motions under Federal Rules of Civil Procedure 50(a) and (b) in order to preserve those issues for appellate review.

And concludes:

Dupree has provided much needed uniformity regarding preservation of issues resolved on summary judgment, and its ruling should extend easily to the Rule 12 context. That means that a purely legal argument raised and rejected on the pleadings need not be reraised throughout the case simply to preserve appellate review. But the precise line between "purely legal" and mixed questions of fact and law is — as in the summary judgment context — not crystal clear, and counsel should carefully err on the side of asserting the argument before, during and after trial, so it is properly preserved for appeal.

Slipping off BlueJeans

Verizon has announced that it will be shutting down the BlueJeans videoconferencing service in the first half of 2024.

This is big news for appellate practitioners, given that remote California appellate oral arguments are conducted over BlueJeans. So stay tuned ....

 

"Eisenberg" Rule now effective - "Contentions" may be submitted

The Judicial Council recently adopted a new rule (rule 10.1014 of the California Rules of Court) that becomes effective on September 1, 2023.  The rule promotes the efficient, effective, and proper administration of the Courts of Appeal by increasing the accountability of administrative presiding justices and presiding justices.  The rule allows anyone to submit a contention that an administrative presiding justice or a presiding justice has not properly addressed or managed an important matter related to the administration of a Court of Appeal or a division of a Court of Appeal.  A person submitting such a contention should use the following addresses:

By email:

AppellateRule10.1014@jud.ca.gov

By mail:
Judicial Council of California
Attn: Rule 10.1014 Program
2860 Gateway Oaks Drive, #400
Sacramento, CA 95833

SCOCA 2024 Calendar published!

The Supreme Court of California today published its oral argument calendar for 2024.

The court will resume its practice of hearing oral argument in courtrooms around the state, after completing technology upgrades in each location to facilitate livestreaming. Oral argument sessions will be held in San Francisco (in January, March, May, September, and November); Sacramento (in February); and Los Angeles (in April, June, and December).

The court is also renewing its practice of hosting a special outreach session yearly in October. These sessions are attended by high school students and their teachers as an opportunity to learn about the judicial process. The court last held an outreach session for San Diego students in June.

The court will continue to support hosting oral argument in a hybrid format, allowing counsel to appear in person or with remote technology upon request.

The 2024 calendar includes dates for the court's weekly petition conferences and court holidays.

Also, the 6th District has updated its pro tem assignments:  

• Judge Helen E. Williams of the Santa Clara Superior Court
• Judge Charles F. Adams of the Santa Clara Superior Court

 There are currently no judges pro temming in the 2d District.