9th Cir. Conference Recap

Want to know what happened at the recent Ninth Circuit Conference? A recap was just posted here: Ninth Circuit Conference Features Thought-Provoking Programs and Gatherings to Advance the Administration of Justice

Also of note, Law360 has 9th Circ. Lets Consumers Speed Up Live Nation's Arb. Appeal

SAJEC seeking input on LASC Judge Stone

The Los Angeles County Bar Association’s State Appellate Judicial Evaluation Committee (SAJEC) is evaluating Los Angeles Superior Court judge Natalie Stone for possible appointment to the Second District Court of Appeal. If you have input on Judge Stone’s qualifications, please fill out the questionnaire linked below or contact committee chair Alana Rotter (arotter@gmsr.com).  https://www.surveymonkey.com/r/SAJECStone

Premature RIP for SCOTUSBlog?

Law360 has SCOTUSblog Death Greatly Exaggerated, Tom Goldstein Says

Law.com has:

‘Extraordinary Achievement’: Lawyers Ask Judge to OK $125M PACER Fees Settlement --Plaintiffs allege the federal judiciary has overcharged the public for documents on the courts' electronic records system.

and

Suspended Judge Newman Discusses Her 'Proclivity of Dissenting' at ABA Event -- “The dissent helps the student to understand the balance that the court decided to reach," the 96-year-old jurist said.

• Since being appointed to the court in 1984 by President Ronald Reagan, Newman has built a reputation as the circuit’s most prolific dissenter. A 2017 study found that Newman had issued 202 dissents across her then 33 years on the bench.
• “The dissent helps the student to understand the balance that the court decided to reach—what philosophy, what logic, what evidence they rejected as being not probative for whatever reason, and what was accepted. Without the dissent, you don’t have that information because it’s not presented in a majority opinion,” Newman said in a recorded interview with Steven Caltrider, chair of the ABA’s Intellectual Property Law Section and chief IP counsel for Dana-Farber Cancer Institute.

BHBA presents The Supreme Court’s “Shadow Docket”: A Conversation with Stephen Vladeck on Nov. 6 @ 12:30 via Zoom. USC Law School's interim Dean Franita Tolson will be conversing with Prof. Vladeck.

The October 2023 issue of Litigation Update is now online, keeping you up to date on current case law. And, speaking of CLA's Litigation Section:

Committee on Appellate Courts Programs October 19 @ 12:00 pm - 1:00 pm | Webinar: Preserving Issues for Appeal: Tips for Trial Counsel in State Civil Cases In this program, two appellate attorneys will discuss how to preserve the record in state trial court and how to avoid common mistakes that lead to forfeiture of issues on appeal. November 8 @ 12:00 pm - 1:00 pm | Webinar: Unraveling the Statement of Decision Process in Family Law This program will cover the statement of decision process and how it impacts a family law appeal, and it will also cover mandatory findings in family law cases. From S.D.Cal.: The 2023 State of the District and Hon. David H. Bartick Award Luncheon will be held on Tuesday, October 17, 2023, at the Westin Gaslamp Quarter, from noon to 1:30 p.m. Attendees will receive updates regarding the operation of the Court from Chief Judge Dana M. Sabraw, Magistrate Judge Karen S. Crawford, Chief Bankruptcy Judge Christopher B. Latham, and Ninth Circuit Judge John B. Owens.

Judge Landau joins ADR Services

Today's DJ has Retired Contra Costa County judge joins ADR Services -- Judge Leslie G. Landau held several assignments throughout her judicial career, eventually serving as the supervising judge of the Family Law department. Before becoming a judge, Judge Landau was an appellate practitioner at McCutchen, Doyle in San Francisco (chairing the firm's appellate group from 2000-2003) and a member of the California Academy of Appellate Lawyers. Judge Landau brought her appellate expertise to the Superior Court, serving as a longtime member of the Court’s Appellate Division, including several stints as its Presiding Judge. She authored hundreds of Appellate Division opinions, on issues arising out of criminal cases, limited civil matters and writs.

“Being an appellate lawyer required me to be a quick study. I came into cases after judgment, usually adverse to my client. I had to master the facts of the case and the substantive legal issues that would be raised on appeal, sometimes in the areas in which I did not have a lot of expertise. The experience of appellate work uniquely served me on the court. As judges on a court of general jurisdiction, Superior Court judges must be intellectually nimble. Over the course of a career, a superior court judge may have assignments in all different areas of the law and will have to master the law anew in each new area.”

1/3 sua sponte drops vexatiousness hammer

In this published opinion today, 1/3 says:

Since July 2016, disbarred California attorney Elizabeth M. Barnson Karnazes has, while self-represented, “commenced, prosecuted, or maintained” nine appeals in this court that have been “finally determined adversely” to her — that is, matters not subject to further appellate review — within the meaning of Code of Civil Procedure section 391, subdivision (b)(1)(i).1 During the pendency of these appeals, she engaged in a pattern of delay that has burdened this court and the litigants she has sued. On our own motion, we conclude Karnazes is a vexatious litigant, and we impose a prefiling order prohibiting her from filing new litigation in the courts of this state without first obtaining permission from the presiding judge or justice where the litigation is proposed to be filed. (§§ 391, subd. (b)(1)(i), 391.7, subd. (a).)

On the federal side of things, today the 9th Circuit publishes this 2-to-1 opinion on appellate standing.

See something? Say something.

Bloomberg Law has California Lawyers See Enhanced Conflicts Provisions in Bill -- California attorneys will be required to report other lawyers for misconduct, including seditious conspiracy, insurrection, or treason, under the annual State Bar fee bill Gov. Gavin Newsom signed Tuesday.

Bloomberg Law has New Disclosure Site Slow to Post Judicial Stock Trading Reports

• The Courthouse Ethics and Transparency Act (P.L. 117-125), signed into law in May 2022, required the judiciary to establish an online database of publicly accessible financial disclosures submitted by life-tenured judges, including Supreme Court justices, as well as bankruptcy and magistrate judges. The law also made those judges subject to a 2012 law requiring federal officials to disclose periodic securities transactions worth more than $1,000 (PL-112-105).
• The law followed reporting by the Wall Street Journal that more than130 federal judges had failed to recuse themselves from cases involving companies in which they or family members held stock.
• Annual disclosures are due to be published within 90 days of submission, while interim reports must be filed within 45 days of the transaction, under a law that took effect last year.
• The information is coming in, but the judiciary’s administrative arm tasked with operating the searchable database has struggled to process and post the annual and periodic disclosures by an estimated 2,500 judges. Things are moving far more slowly than a similar database maintained by Congress.

Today's DJ also had Well-known appellate lawyer sued over fee dispute -- “This suit is meritless,” Norman Pine wrote in an email. “It is also important to note that the dispute has nothing to do with the client. Rather, it is a legal disagreement between two former co-counsel for the client about how the legal fees related to the representation should be divided.”

Third Appellate District to Host Oral Argument Outreach Session at UC Davis School of Law -- The Court of Appeal, Third Appellate District will host a special oral argument session for students at UC Davis School of Law on Oct. 16 starting at 10 a.m.

Oh no, Do-si-do re arbitration stays!

When this year started, the world of arbitration stays looked like this: In federal courts there was a split, with the law in the 9th Circuit being that if you appealed the denial of a motion to compel arbitration, there was no automatic stay of the litigation pending the appeal; you had to seek such a stay from the district court judge (and if that failed, the circuit). (Other courts following this approach were the 2d and 5th Circuits. In contrast, the 3d, 4th, 7th, 10th, 11th, and D.C. Circuits imposed an automatic stay.) In contrast to the 9th Circuit view, in California state court, such a stay was automatic (CCP 1294 made such orders appealable and CCP 916 allowed for an automatic stay).

Earlier this year the federal law changed: Under the Supreme Court's Coinbase v. Bielski (June 23, 2023, No. 22-105) opinion, a stay became automatic (Holding: A district court must stay its proceedings while an interlocutory appeal on the question of arbitrability is ongoing.). Thus, state and federal law were aligned.

However, this afternoon the Governor signed SB365 which removes the automatic stay under California law (effective Jan. 1, 2024). Now CCP 1294(a) will read (new text bolded): "An aggrieved party may appeal from (a) An order dismissing or denying a petition to compel arbitration. Notwithstanding Section 916, the perfecting of such an appeal shall not automatically stay any proceedings in the trial court during the pendency of the appeal." Thus, the state-federal alignment on this law will have lasted less than six months (between June 23, 2023 and December 31, 2023.)

This is yet another example of the round-and-round between California and federal law. When one zigs, the other zags. Keeps us all on our toes.

[Updates 10/11/23: the DJ has Request to arbitrate no longer guarantees stay in court proceedings {quoting this blog!} and The Recorder has Newsom Signs Bill Curbing Arbitration-Appeal Stays]

J. Newman channels Tom Petty

 

Law360 has Even After Suspension, Judge Newman Is Not Backing Down

After being suspended by colleagues investigating her fitness to serve on the bench, 96-year-old Federal Circuit Judge Pauline Newman said in an interview with Law360 that she's prepared to fight the decision for as long as it takes, calling the case "very bad for this court."

Blumberg Law has Passionate Opinions, Not Personal Attacks, Judges Tell Students

Wearing a judicial robe means often deciding contentious cases with some of the same people year after year, and for Judge David R. Stras, of the US Court of Appeals for the Eighth Circuit, doing that successfully means putting into practice the maxim “we can disagree without being disagreeable.”

And Fifth Circuit Judge Adds Alternate Majority Opinion to Dissent

A federal appeals court judge published what he described as the opinion “that should have been issued” to his dissent in a death penalty case, in a move attorneys say marks a departure from typical practice.

“In the interest of time, instead of penning a long dissent pointing to the panel majority’s and district court’s myriad mistakes, I attach the Fifth Circuit panel opinion that should have been issued,” [Judge Jerry E.] Smith wrote.

Smith’s opinion is somewhat similar to a 2022 concurring opinion issued by Judge Lawrence VanDyke of the US Court of Appeals for the Ninth Circuit, a Trump appointee. The appeals court panel had ruled against a California county that required gun stores to close at the start of the Covid-19 pandemic.

Law.com's story is Dissenting Judge Pens Alternative Majority Opinion in Death Penalty Appeal -- Jerry Smith, of the Fifth Circuit, presents—by way of dissent—the decision that he says "should have been issued."

Appellate Attorneys needed!

LASC issues: URGENT CALL FOR ATTORNEYS TO REPRESENT INDIGENT DEFENDANTS IN APPELLATE DIVISION

Presiding Judge of the Appellate Division Patti Jo McKay today reiterated the Court’s urgent need for attorneys to serve on the Appellate Division’s Panel of Appointed Attorneys to represent indigent defendants who seek to appeal judgments rendered in misdemeanor cases. “The 14th Amendment demands equal legal representation for both rich and poor at every significant stage of a case, including on appeal,” said Judge McKay. “The Court is at risk of delaying justice to its most vulnerable litigants without the expert assistance of attorneys ready and willing to serve on this critical panel.”  APPOINTED ATTORNEYS: Upon Appellate Division approval, appointed attorneys are compensated by the Professional Appointee Court Expenditure (PACE) program at a rate of $83/hour and are appointed to represent indigent defendants via alphabetical rotation. Occasionally, and in the interest of judicial economy and efficiency, an attorney may be appointed out of order when there is a related pending appeal for the same defendant. 

PREREQUISITES: Attorneys interested in an appointment to represent indigent defendants are required to: • Be a member in good standing of the California State Bar; • Possess strong research and writing skills; • Have an understanding of criminal law and procedure; • Be familiar with the appeals process, including the California Rules of Court and the Los Angeles Superior Court Local Rules governing misdemeanor appeals; and • Commit to adhering to the PACE policies and protocols.  

APPLICATION MATERIALS: Attorneys who meet the prerequisites should prepare the following: • A cover letter detailing their education, training and experience in handling criminal law cases, including jury and court trials, and appeals;  • A current resume with references; and • Two recent writing samples. Please mail the above application materials to:  Patti Jo McKay Presiding Judge, Appellate Division Stanley Mosk Courthouse, Room 607 Los Angeles Superior Court 111 N. Hill St. Los Angeles, CA 90020 Attn: Aida (Evelyn) Vallejo  After a review of the submitted materials, the selected attorneys will be notified by U.S. mail.

SCOTUS as Animal House

The Marble Palace Blog has The Supreme Court's Animal House -- From tortoises to dolphins, lions to owls, the Supreme Court building is sprinkled with animal sculptures. A curator's booklet tells what they mean.
From the curator’s booklet, here is a summary of the animal sculptures and their meaning and location:

• Tortoises represent the slow and steady pace of justice and are located at the bottom of bronze lampposts on the building grounds, as well as at the East Pediment.
• Hare, located in the East Pediment, lost the race to the slow but steady tortoise.
• Eagles symbolize the United States, a bird of freedom, or superiority and swiftness. It is seen in the spiral staircase bronze work on the ground floor.
• Two lion heads are on the court’s roofline and in the Great Hall as a symbol of majesty and strength.
• Dolphins found on the bronze flagpole bases on the front plaza are a maritime symbol of the sea and swiftness.
• Rams’ heads represent strength, and are found on the marble lampposts on the front plaza and marble urns on the rear plaza.
• Owl: A common symbol of wisdom, an owl is located on elevator and spiral staircase bronze door frames on the ground floor.

1st District pro tem update

 The following are currently sitting on assignment in the First District

• Judge Wendy Getty of Solano Superior Court will be sitting pro tempore in Division One until December 1, 2023.
• Judge Joni Hiramoto of Contra Costa Superior Court will be sitting pro tempore in Division Four until December 6, 2023.
• Judge Michael Markman of Alameda Superior Court will be sitting pro tempore in Division Two until December 15, 2023.

DJ profiles J.Snauffer

Today's DJ has Justice Mark Snauffer of the 5th District is a hometown boy with national debate skills -- Justices says scholarly nature of 5th District Court of Appeal suits him.

• In the 1970s, Fresno high school debate coach Richard Beers oversaw teams that included three future justices of the 5th District Court of Appeal: Mark W. Snauffer, Kathleen A. Meehan and Presiding Justice Brad R. Hill.
• The 5th District stands out in another way. Among all of California's appellate courts, it probably has by far the highest percentage of justices who grew up locally. Even many of the justices who didn't grow up in Fresno come from nearby, such as Tom DeSantos, raised a 45-minute drive away in Hanford.
• Snauffer said he was always an avid reader who seemed destined for the law or some other career that dealt mainly in words. He said he never excelled in science, but did in history and politics. After high school, Snauffer earned a bachelor's degree in political science from UC Berkeley. He graduated from UCLA School of Law in 1977, then spent three years with one of the most prominent firms in Fresno, McCormick Barstow LLP.
• Snauffer said the scholarly, less hectic nature of the appellate court suits him -- and he doesn't think he'll do anything else before he eventually retires.

The ABA Journal has Justices drop 'respectfully' in some dissents, but SCOTUS rancor is tamer than in past and ABA President's letter: A code of ethics is necessary to restore trust in the Supreme Court

9th Cir. 2022 Annual Report

The 2022 9th Circuit Annual Report is now available here.

• Our court of appeals continued to be the nation’s busiest federal appellate court, accounting for 20.5% of all new appeals nationally, with 8,559 appeals, down 9.8% from fiscal year 2021.
• Despite the continued challenges presented by the ongoing restrictions imposed by the pandemic; I am pleased to report that the Court of Appeals for the Ninth Circuit continued to account for over 20% of the entire federal appellate caseload in the nation.
• the steady pace of judicial appointments continued through December. We extend a warm welcome to new judges appointed in 2022—Circuit Judges Gabriel P. Sanchez, Holly A. Thomas, Roopali H. Desai and Salvador Mendoza, Jr.
• The Ninth Circuit’s Fairness Committee resumed their efforts to increase law clerk and magistrate judge diversity.
• The Appellate Lawyer Representatives conducted several meetings throughout the year and provided the opportunity for circuit judges to learn about key practice-related issues.

J.Bybee to continue chairing JC ACAR

Chief Justice Names Conference Committee Chairs

Chief Justice John G. Roberts, Jr., has named seven new chairs of Judicial Conference committees and extended the term of six current chairs by one year. The appointments took effect Oct. 1.

The 26-member Judicial Conference is the policy-making body for the federal court system. By statute, the Chief Justice of the United States serves as its presiding officer and its members are the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits and the chief judge of the Court of International Trade. The Conference meets twice a year to consider administrative and policy issues affecting the court system and to make recommendations to Congress concerning legislation involving the Judicial Branch.

• Judge Jay S. Bybee (Ninth Circuit) was extended for one year as chair of the Advisory Committee on Appellate Rules.

Also in the news:

New York Times Opinion writer Peter Coy has This Is Why Trump Keeps Antagonizing the Judge in His Fraud Trial, which quotes CA appellate lawyers Bob Stumpf, Karin Vogel, and Janet Gusdorff.

The DJ's Top 40 Under 40 (2023) featured MoFo appellate lawyer James Sigel.

SCOTUS shorts

Bloomberg Law has More Men from Firms Reflect US Supreme Court Advocate Gender Gap

• Men advocates still outpace women, especially representing firms
• Women have argued 12% to 23% of cases since 2014

Law.com has Chief Justice Roberts Slams ‘Manipulation’ of Supreme Court’s Docket -- "We can’t keep granting cert and have it constantly being mooted," Roberts said of litigant's tactics.

Fairness demands reversal?

An unpub from 4/3 yesterday has this interesting intro:

The decision to reverse this case was difficult, but we must reverse it.  Simply stated, we have no confidence Urdu-speaking Syed Tahir or the Center for Religious Tolerance, Inc. (Defendants) were given the benefit of a fair trial or equal access to justice.  The record shows there were several contributing factors, some simply circumstantial, some created by trial tactics, and some arising from court error.  When viewed together, these factors deprived Defendants of effective counsel during discovery disputes, which resulted in a type of terminating sanction/default judgment that we cannot affirm.

Justice Thomas recuses himself re Eastman

Law360 has Justice Thomas Recuses As High Court Rejects Eastman Bid

The U.S. Supreme Court on Monday refused to take up an appeal from John Eastman, a former attorney for Donald Trump, that challenges a subpoena from the U.S. House of Representatives committee investigating the Jan. 6 Capitol riot seeking his emails, with Justice Clarence Thomas taking the unusual step of recusing himself. ... Eastman is a former law clerk of Justice Thomas.

Bloomberg Law has Thomas Issues Rare Recusal in Jan. 6 Trump Lawyer Appeal

Thomas gave no explanation. He has drawn criticism for previously not disqualifying himself from cases involving the 2020 election and its aftermath. His wife, conservative activist Virginia “Ginni” Thomas, was among those who urged the White House to do more to try to overturn the election results.

LASC Appellate Division calendar

The Appellate Division of the Superior Court of Los Angeles County announced today its 2024 hearing schedule. Hearings will generally be set at 9 a.m. for infraction and misdemeanor cases and at 1:30 p.m. for limited civil cases in the Appellate Division Courtroom, Room 615, Stanley Mosk Courthouse, 111 N. Hill St., Los Angeles, on the following dates: click here.

1st District pro tem update

 The following are currently sitting on assignment in the 1st District:

• Judge Wendy Getty of Solano Superior Court will be sitting pro tempore in Division One until December 1, 2023.
• Judge Michael Markman of Alameda Superior Court will be sitting pro tempore in Division Two until October 15, 2023.
• Judge Joni Hiramoto of Contra Costa Superior Court will be sitting pro tempore in Division Four until December 6, 2023.
    

Happy 1st Monday

Today's LA Times has An unexpected check on Supreme Court’s sharp move right: Justice Kavanaugh

Law360 has 5 Supreme Court Cases to Watch This Fall, 'Administrative State' Attacks Soar To High Court Crescendo and First-Time Advocates Dominate High Court's Fall Schedule, the last of which begins:

Solo practitioner Howard Bashman had almost given up all hope on his goal of arguing before the U.S. Supreme Court, but then the justices agreed in March to hear an admiralty law case over choice-of-law provisions in which he represents a yacht owner challenging the denial of an insurance claim.

Today's DJ has:

Floyd Siegal's A Ruthless Court, about the friendship between RBG and Nino Scalia.

PJ Gilbert has Times, They Changed, about judges who write books (e.g., Beds, Eileen Moore, Anthony Mohr, Timothy Fall, etc.) and how judges reveal more about themselves than ever before (nothing that he did not have a column last month because he had COVID).

Myron Moskovitz has Part II on interpreting our Constitution: the voters v. the judges

Judge David Rosenberg has A Unique Attribute of Our Justice System -- Only one nation – the United States of America – allows jury trials in the vast majority of civil cases.

Law360 has Attorneys Will Now Have Remote Access To Pa. Appeals Briefs -- That's PA, not CA (sigh); but maybe one day??

The Recorder has Feinstein Leaves 'Profound' Impact on California's Federal Bench -- In her 30 years as a U.S. senator, Dianne Feinstein, who died Friday at age 90, pushed five presidents to create a more diverse federal bench in California, said lawyers who helped her vet judicial candidates.

An interesting unpub'd decision from 2/3 emphasizes that incivility in litigation is a basis for reducing a fee award: "We agree a trial court may consider an attorney’s pervasive incivility in determining the reasonableness of the requested fees."