1st DCA pro tem update

These current judicial officers are assigned to temporarily fill judicial vacancies at the First District:

• Judge Elizabeth M. Hill of San Mateo County Superior Court will be sitting pro tempore in Division One until November 30, 2024.
• Judge Danielle Douglas of Contra Costa County Superior Court will be sitting pro tempore in Division Four until November 7, 2024.

And from the Gov's office:

Claws for celebration: Governor Newsom signs legislation establishing state crustacean, slug, and seashell -- What you need to know: Today, Governor Gavin Newsom signed three bills establishing three new state symbols: the Dungeness crab as the state crustacean, the banana slug as the state slug, and the black abalone as the state seashell.

For more animal law, The Recorder has Bedsworth: Bon Appetit, Monsieur Raccoon

The NLJ has Covington Adding Former DOJ Civil Appellate Head to Supreme Court Practice -- Sarah Harrington (former head of the USDOJ civil appellate staff), who has argued 22 times before the justices, says she is "not afraid of a hot bench."

And the NLJ has 'Be Not Afraid': Kavanaugh on the Importance of Being Thick-Skinned -- "In my job, you lose a lot of friends and that's just the reality of it," Justice Brett Kavanaugh said at The Catholic University of America Columbus School of Law.

The MetNews has C.A. Admonishes Defense Counsel for Unsupported, Unbecoming Attacks -- Opinion Says Lawyer’s Arguments in Favor of Reversing Denial of Resentencing Were Unmerited Character Accusations Against Court, Prosecutor. Decision here.

2d DCA Appointments!

 

Governor Gavin Newsom today announced his nomination of three Court of Appeal Justices: Justice Brian M. Hoffstadt as Presiding Justice of the Second District Court of Appeal, Division Five; Judge Michelle C. Kim as an Associate Justice of the Second District Court of Appeal, Division One; and Judge Anne K. Richardson as an Associate Justice of the Second District Court of Appeal, Division Two.   The Governor also announced his appointment of 7 Superior Court Judges, which include four in Alameda County; two in Los Angeles County; and one in Ventura County.   Second District Court of Appeal Justice Brian M. Hoffstadt, of Los Angeles County, has been nominated to serve as Presiding Justice of the Second District Court of Appeal, Division Five. He has served as an Associate Justice at the Second District Court of Appeal, Division Two since 2014. Justice Hoffstadt served as a Judge at the Los Angeles County Superior Court from 2010 to 2014. He was a Partner at Jones Day from 2007 to 2010 and served as an Assistant U.S. Attorney at the U.S. Attorney’s Office, Central District of California from 2000 to 2007. Justice Hoffstadt served as Senior Counsel at the U.S. Department of Justice, Office of Policy Development from 1998 to 2000 and at the Federal Communications Commission, Office of General Counsel from 1997 to 1998. He served as a Law Clerk for the Honorable Sandra Day O’Connor at the U.S. Supreme Court from 1996 to 1997 and for the Honorable Cynthia H. Hall at the U.S. Court of Appeals, Ninth Circuit from 1995 to 1996. Justice Hoffstadt earned a Juris Doctor degree from the University of California, Los Angeles School of Law. He fills the vacancy created by the retirement of Presiding Justice Laurence D. Rubin. 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. Justice Hoffstadt is a Democrat. Judge Michelle C. Kim, of Los Angeles County, has been nominated to serve as an Associate Justice of the Second District Court of Appeal, Division One. She has served as a Judge at the Los Angeles County Superior Court since 2018. Judge Kim served as a Deputy Alternate Public Defender at the Los Angeles County Alternate Public Defender’s Office from 2005 to 2018 and as a Deputy Public Defender in the Los Angeles County Public Defender’s Office from 2003 to 2005. She earned a Juris Doctor degree from the University of California, Los Angeles School of Law. Judge Kim fills the vacancy created by the retirement of Justice Victoria D. Chaney. 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. Judge Kim is a Democrat. Judge Anne K. Richardson, of Los Angeles County, has been nominated to serve as an Associate Justice of the Second District Court of Appeal, Division Two. She has served as a Judge at the Los Angeles County Superior Court since 2018. Judge Richardson was a Directing Attorney at Public Counsel from 2014 to 2018. She was a Partner at Hadsell, Stormer, Richardson and Renick LLP from 1998 to 2014 and was an Associate there from 1993 to 1998. Judge Richardson was a Public Interest Fellow at Litt and Stormer from 1990 to 1992 and served as a Law Clerk for the Honorable Mariana R. Pfaelzer at the U.S. District Court, Central District of California from 1989 to 1990. She earned a Juris Doctor degree from Stanford Law School. Judge Richardson is being selected to fill the vacancy that will be created pending confirmation of Justice Brian M. Hoffstadt’s appointment as Presiding Justice of the Second District Court of Appeal, Division Five. 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. Judge Richardson is a Democrat.   The compensation for each of these positions is $279,151.

The Recorder has Gov. Gavin Newsom Chooses New Justices for L.A. Appellate Court

ND Cal 9th Cir program

 Law360 has 9th Circ. Chief Talks Caseload, AI, Trivia At Fed Bar Luncheon

Ninth Circuit Chief Judge Mary H. Murguia touted the appellate court's efforts to reduce pending cases, revealed that recommendations are forthcoming about how the courts can use artificial intelligence and shared fun trivia about her colleagues during the Federal Bar Association's annual luncheon Wednesday for the Northern District of California.

Reminder: California courts will be closed tomorrow (9/27/24) in observance of California Native American Day. 

Local practices book

The NLJ has 'Nobody Else Knows': These Federal Appeals Courts Have Unique Local Rules

At a recent Constitution Day event, Duke Prof. Marin Levy and Second Circuit Judge Jon Newman discussed their upcoming book “Written and Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals.” The book details the different local rules and practices among the 13 federal appeals courts, through interviews with the chief judges of every circuit and surveys of clerks of court.

Examples in the article are:

• the Ninth Circuit's rule about notification of delay, i.e., contact the clerk if a motion is pending for more than four months or if oral argument or submission hasn't occurred within 15 months after briefing; or if a petition for rehearing has been pending for over 6 months.
• The Federal Circuit's rule to show respect to district courts by not referring to them as "the court below" or the "lower court" or "judge below" and instead simply use "district court" or "trial court" or "the district judge."
• The Second Circuit's local rule setting a cut off at 90 days for the opening brief, so the court isn't bothered with motions to extend the usual 40-day deadline. "The circuit allows the parties to set their own preferred briefing deadline at any point within the 90 days."

Article about SCOTUS Justices' books

The ABA Journal has A bookish Supreme Court keeps stacking the shelves (abajournal.com) about books published by current and past SCOTUS justices.

• Ronald Collins, a retired University of Washington law professor who writes about Supreme Court books for SCOTUSblog, compiled a list in 2012 of more than 350 books by the justices by that point.
• the most prolific was Justice William O. Douglas, who served from on the court from 1939 to 1975 and who wrote 51 books on a broad range of topics, from the environment to psychiatry to foreign policy to his two-part autobiography.

Also getting a lot of attention: Veteran High Court Litigator Warns Of Ethics Debate's Impact

about this speech.

FBA-LA appellate program

The Federal Bar Association Los Angeles Chapter presents Winning After Trial: Setting Up For Success in Federal Civil Post-Trial and Ninth Circuit Practice on Thursday, Sept. 27 at noon, either in person (601 S. Figueroa, Suite 3400, LA 90017) or via Zoom. Speakers are retired Judges Margaret Morrow and Larry Burns and appellate specialist Alana Rotter of GMSR.

Horizontal overruling?

Today's DJ has Justice Raphael's article Overruled? about whether one court of appeal panel can overrule another (or itself). This is a topic he has addressed before (see The Puzzle of Precedent in the California Court of Appeal, 33 Cal. Litig. 11 (2020)) and it is once again prominent based on a recent grant of review (see At The Lectern post here).

1st DCA pro tem update

Judge Danielle Douglas of Contra Costa County Superior Court will be sitting pro tempore in the First District, Division Four until November 7, 2024.

And see More Guidance Needed On Appellate Amicus Recusals - Law360

Splits and consequences

Today's DJ has Justice Hoffstadt's Doing the splits -- How a split is created or articulated affects the likelihood of the Supreme Court reviewing the case, with explicitly created splits more likely to be reviewed.

• Intermediate appellate courts can articulate and/or create splits of authority in three different ways.
• The first and most obvious way is when an intermediate appellate court articulates and creates a split by explicitly declaring that it is "parting ways" with a sister court's interpretation of the law.
• The second way is when an intermediate appellate court articulates but does not create a split. This happens when judges on a three-judge panel of an intermediate appellate court disagree with one another, typically when the majority adopts one rule, and the dissent espouses another.
• The third way is when one court creates but does not articulate a split. This happens when a court issues an opinion that, in effect, disagrees with another opinion, but never acknowledges that effect or any disagreement.
• How a split is created and/or articulated can have significant effects. It can affect the odds that the governing Supreme Court will take up a case to resolve the split (although the quality of advocacy is no doubt also a factor). In deciding whether to exercise their discretion to accept a case to review, both the United States and California Supreme Courts look to whether there is a split of authority among the lower courts. S. Ct. Rule 10(a); Cal. Rules of Court, rule 8.500(b)(1).

NLJ has GOP Senators Urge Judiciary to Scrap Proposal for Greater Amicus Funding Disclosure -- The Supreme Court "has long protected those who associate for speech purposes from compelled disclosure of those associations, subjecting any such disclosures to 'exacting scrutiny,'" the Republican lawmakers wrote.

The Recorder has Governor OKs Test of Remote Appearances by Court Reporters in 2025 -- AB 3013 will temporarily allow court reporters to capture proceedings while working outside the courtroom—and maybe even outside the courthouse.

CJ Roberts articles

The Wall Street Journal has John Roberts Gets His Turn in the Progressive Dock--Leaks from inside the Supreme Court target the Chief Justice in the Trump cases, about the NY Times Sunday front page story How Roberts Shaped Trump’s Supreme Court Winning Streak -- Behind the scenes, the chief justice molded three momentous Jan. 6 and election cases that helped determine the former president’s fate.

2/3's Justice Lavin retires

The Second District Court of Appeal announces the retirement of Associate Justice Luis A. Lavin, effective September 16, 2024. Justice Lavin has served on the Court of Appeal since his appointment to Division Three in 2015, authoring hundreds of opinions across various areas of law. His distinguished career includes thirteen years as a Los Angeles Superior Court judge, where he presided over civil, criminal, and family law matters. Prior to his judicial service, Justice Lavin held significant roles in public service, including Director of Enforcement and General Counsel for the Los Angeles City Ethics Commission and senior trial attorney with the Civil Rights Division of the U.S. Department of Justice. Justice Lavin's commitment to justice and education is evident in his numerous awards, including the Beacon of Justice Award, and his contributions as an adjunct professor at several law schools. The Court extends its gratitude for Justice Lavin's dedicated service and wishes him well in his future endeavors.

CA Bar dues to increase

Today's DJ has Newsom approves bar fee increase -- AB 3279 will raise the annual costs of an active bar license by more than $40 when including all fees. "AB 3279 raises the annual costs of an active bar license, including all fees, from $510 to $553."

Bloomberg Law has California Raises State Bar’s 2025 Lawyer Licensing Fee by $88 -- "The law brings the total annual active fee to $598 from the current $510." The Recorder has Governor Signs Legislation Raising Lawyers' Licensing Fees by $88 in 2025 -- State bar leaders had sought a $125 fee hike, but generally praised the legislation signed by Gavin Newsom.

The fee hike will bring active lawyers’ 2025 bills to $598, or $553 if they opt out of a voluntary $45 charge to fund legal aid programs. Next year’s bills will rise by $22.60 to $205 for inactive lawyers, or $160 without the legal aid fee.

Law360 has Judiciary Panel Dems Endorse Amicus Funding Disclosure

E-reporting Bill signed / new book on SCOTUS footnotes

Today Governor Newsom signed AB3013 regarding 'remote court reporting,' which allows for certain superior courts (including LA, Ventura, and SD) to conduct pilot projects to study the potential use of remote court reporting to make verbatim records of certain court proceedings.

Yesterday's Wall St. Journal had ‘The Supreme Court Footnote’ Review: Law at the Margins, a book review of Peter Charles Hoffer's The Supreme Court Footnote: A Surprising History (NYU Press, 232 pages). Famous SCOTUS footnotes discussed include, of course, fn. 11 in Brown and fn. 4 in Carolene Products.

"Though the court has deployed footnotes in many ways over its long history, no one can doubt, Mr. Hoffer says, that today, “in increasingly scholarly and acerbic footnote exchanges, the lowly footnote has been elevated to a higher plane.”"

Sills Award Dinner

The OCBA Appellate Law Section presents its Sills Award Dinner on October 29 (5:30 to 8 p.m.). The David G. Sills Award for Appellate Excellence will be presented to Justice Eileen Moore and the program will feature Dean Erwin Chemerinsky and Stanford Law Prof. Michael McConnell

Building an appellate practice

The five California Appellate Projects (ADI, CAP-LA, CCAP, FDAP, SDAP) are presenting a Zoom webinar titled How to Build at Appellate Practice on October 17 @ 12:15 -- "Learn about the benefits of handling court-appointed appeals, including greater work-life balance and the opportunity to shape the law." See Appellate-Panels-Recruitment-Fall-2024.pdf (fdap.org)

How clear is it that you have to move for a new trial to appeal an award of punitive damages on the basis that the award is excessive in light of evidence about ability to pay? Here's an unpub from 4/1 with a dissent. The majority says, 'no new trial motion, then no appeal'; the dissent says 'that rule shouldn't apply if the appeal doesn't turn on the credibility of witnesses, conflicting evidence, or other factual questions.'

And then there's this unpub, which we'll call "the case of the blurting juror." [Bloomberg Law has Juror Who Blurted ‘I Agree’ in Closing Arguments Kept Open Mind]

And here's an unpub we'll call "get a darn judgment!"

On the federal side, see Law.com for Citing Missed Deadline, 2nd Circuit Tosses Appeal Against Equitable Insurance

Voigts to Pillsbury

 

The Recorder has Pillsbury Hires US Appellate Practice Leader -- "Pillsbury Winthrop Shaw Pittman hired former Assistant U.S. Attorney and Supreme Court Clerk Anne Voigts to lead its American appellate practice. Voigts joined Pillsbury’s Silicon Valley office after seven years and nine months as a partner at Palo Alto-based King & Spalding. She previously served as an AUSA in the U.S. Attorney’s Office for the Northern District of California for six years, where she briefed 80 cases and argued more than 50 times before the U.S. State Court of Appeals for the Ninth Circuit."

Pillsbury Recruits Anne Voigts to Lead US Appellate Practice (bloomberglaw.com) Pillsbury Hires King & Spalding Atty To Lead Appellate Team - Law360

Law.com has Law Clerks Can’t Seek Post-Clerkship Jobs With Political Orgs, Ethics Guidance Says -- “A law clerk who applies for a job with a political organization risks linking the judge’s chambers to political activity, which could compromise the independence of the judiciary,” the advisory opinion states.

Bloomberg Law's story is Law Clerks Can’t Seek Political Jobs While Working for Courts

Judge McKeown to get the Justice Powell Award

Judge M. Margaret McKeown to Receive the 2024 American Inns of Court Lewis F. Powell Jr. Award -- Senior Circuit Judge M. Margaret McKeown of the U.S. Court of Appeals for the 9th Circuit will receive the prestigious 2024 American Inns of Court Lewis F. Powell Jr. Award for Professionalism and Ethics. The award will be presented on October 26 at the 2024 American Inns of Court Celebration of Excellence at the U.S. Supreme Court. The award recognizes attorneys, judges, government officials, journalists or others who have rendered exemplary service in the areas of professionalism, ethics, civility and excellence.

Celebrate Constitution & Citizenship Giving Day

 

IT'S TIME! LA LAW LIBRARY GIVING DAY 9/17/24

 

 

No one should be left behind. Access to justice should be available to everyone! Your gift, large or small, will ensure that our law library, a vital source of free legal resources and support, continues to serve our community regardless of financial status.    Constitution and Citizenship Day, September 17, 2024, is the perfect time to give generously to our law library. Thousands of people are thrust into the complex world of our justice system, often without a clue where to begin. Whether it's an immigration issue, eviction, divorce, or car accident, the law library, with your support, is there to provide crucial assistance.   The law library, a beacon of empowerment, offers free classes and workshops that guide you through every step. They can even assist you in starting your own business!    Let's give and give generously to our law library; you never know when one of our friends, family members, neighbors, or community members will need it.   Click on the button below and donate today! Thank you for your generosity.

 

DONATE TODAY!

Beds to retire

The MetNews reports Court of Appeal Justice Bedsworth to Retire -- Jurist Is Widely Lauded for Lucid, Pithy, Sometimes Humorous, Prose

• Court of Appeal Justice William W. Bedsworth—widely viewed as a giant in the judiciary based on opinions that are consistently marked by clarity and often by wit—will be retiring effective Oct. 21 from his post on the Fourth District’s Div. Three in Orange County.
• Bedsworth, who has taught law classes at the University of California, Irvine (“UCI”), Western State University, and Chapman University, explained in a letter to Gov. Gavin Newsom his reasons for leaving the bench, saying: “I always told my law students at UCI that ‘there is no greater engine for the accomplishment of good on the planet than the American legal system’ in which I have been allowed to serve. I also told them they were going into this profession with the goal not of becoming rich and famous, but of becoming proud and happy. I have reached that point. Now it’s time to find out who I am without a robe, something I have not investigated for 37 years.”

appellate tidbits

Court of Appeal, Third Appellate District, to Hear Oral Argument at Union Mine High School -- Since 2000, the Third Appellate District has held oral argument sessions in 30 high schools and two law schools in 20 counties of its district

Over in the Federal Circuit, Law360 has Judge Newman's Suspension Extended For Another Year

Federal Circuit Judge Pauline Newman was barred Friday from hearing cases for at least another year due to her refusal to participate in an investigation into her health, with the appeals court's other judges deciding unanimously to extend a suspension that began last year.

And see Beds' latest column, The Importance of Spotting Red Flags

Bloomberg Law has

Federal Circuit Extends Judge Newman’s Suspension Another Year (bloomberglaw.com)

Judge Says ‘Swatting’ After Trump Ruling Was ‘Scariest Night’ (bloomberglaw.com)
Alito Reports $900 Tickets, a Loan, No Trips in Disclosure (1) (bloomberglaw.com)

Barrett Describes ‘Difficult’ Transition to Increased Security (bloomberglaw.com)

Law360 has Lewis Roca Taps Ex-Arnold & Porter Appellate Pro As Partner about Kirk Jenkins.

Electronic Court Reporting bombshell!

The Recorder has Defying State Law, LA Superior Court Expands Electronic Case Recording -- Los Angeles County Superior Court Presiding Judge Samantha Jessner said the court must use electronic recording to overcome a "constitutional crisis" tied to a lack of available court reporter.

Defying state law and the Legislature, Los Angeles County Superior Court’s presiding judge issued an order Thursday expanding the use of electronic recording in the mammoth trial court’s courtrooms.

Presiding Judge Samantha Jessner’s order, unveiled during an online press conference, allows clerks to immediately begin using electronic recording equipment in family law, probate and unlimited jurisdiction civil proceedings when no court reporters are available and the matter involves “significant legal and/or factual issues” where a verbatim record is necessary for a possible appeal.

A statement issued Thursday morning by the trade group California Court Reporters Association called Jessner’s order “unlawful.”

Law360 has LA Courts Expand Recordings, Citing Court Reporter Shortage

DJ Top 100 & free oral argument mcle

Today's DJ has the Top 100 Lawyers 2024 insert, which (as always) includes some particularly appellatey lawyers; so congrats to: Jimmy Azadian, Ted Boutrous, Theane Evangelis, Mira Hashmall, Michael Rubin.

Also on the list is Mat Rosengart who happens to have an article in today's papers titled Clerking for Justice Souter: A journey of luck, brilliance, and enduring friendship

Also of note: On October 7 @ noon to 1, the California Appellate Advocacy Program SCOCA Insights Series presents (in person at UC Law SF's Baxter Courtroom and via Zoom) a Free 1-hour CLE program on Preparing for Oral Argument: Three former clerks for the California Supreme Court share their insights and tips on preparing for oral argument.

SCOTUS recusal article / Justice KBJ in LA

Bloomberg Law has several articles of appellate note:

Supreme Court Conservatives Are Less Likely to Explain Recusals -- Liberal justices often explain decision to step aside in cases; Court’s 6-3 conservative majority eschews the practice

Justice Jackson Is Open to Binding Supreme Court Ethics Code -- Most courts have enforceable code, Jackson said; Second justice (after Kagan) to suggest need for binding mechanism

Ketanji Brown Jackson Starts New Memoir’s Publicity Blitz -- 16 in-person events scheduled in four weeks; Book deals comes with big advance

Her 9/17 event @ 7:30 p.m., moderated by Angela Bassett, at The Ebell is sold out. (If you would like to be placed on the waiting list please email tickets@ebellofla.org) But a 3 p.m. program has been added for that same day, here.

And the MetNews has Judges, Justices Receiving Lower Pay Than Law Requires -- Pleading Says State Is Failing to Follow Dictates of Statute; if Successful, Annual Increases Would Be Computed by Taking Into Account All Salary Hikes of Other Employees, Back Pay Would Be Owed, Retirement Benefits Affected

Law.com has Orrick Associate’s 1st Oral Argument Ended in Precedent-Setting Win for Veterans

DJ appellate columns today & CMS 18th ed.

Today's DJ has PJ Gilbert's monthly column, titled Short -- In August, when both minds and readers are on vacation, I reflect on the art of brevity in writing and ponder the wisdom of aging.

Today's DJ also has the monthly Exceptionally Appealing column, this one titled Appellate Crash: What we'd miss, about what we'd miss if the state's appellate court computer systems went offline.

Also, LawProse Lesson 437 today has Did you hear about the new Chicago Manual?

The 18th edition of the Chicago Manual of Style has just been published. It’s the most comprehensive style manual ever, and it will answer virtually every question you might have. (Except, that is, for the kinds of legal-style issues that are answered in The Redbook: A Manual of Legal Style, published in its fifth edition in 2023.)