9th Cir. CLE programs

Ninth Circuit to present two free CLE programs this month, each co-sponsored by the local Federal Bar Association. The first will take place at the James R. Browning Courthouse in San Francisco on November 14, 2024 at 3:00 PM, and the second will be held at the William K. Nakamura Courthouse in Seattle on November 21, 2024 at 2:30 PM. Both programs will be followed by a reception. Click here for more information about the San Francisco program and the Seattle program.

Judges speaking at the SF program are Sanchez, S. Thomas, Fletcher, and Miller. Reception with the Judges 4 to 5:30.

AAAL Fall 2024 meeting

The Fall Meeting of the American Academy of Appellate Lawyers was in Boston last month (Oct. 24-26).

Retired SCOTUS Justice Breyer was presented with the Kathleen McCree Lewis Award for his contributions to and impact on the delivery of appellate justice.

Programming included many panel discussions featuring appellate judges from around the country.

First Circuit Judge William Kayatta discussed his approach to working on appeals, which mirrors the process of many appellate judges countrywide: First, he reads the judgment/order being appealed; second, he reads the table of contents for the opening brief--less than half of which are any good or useful; next, he reads the summary of argument/intro; only after that will he dig in to the briefs and record. So the take-away tip (which is well known to most) is that the table of contents really matters and needs to be used well as an advocacy tool. 

Trump's SCOTUS Shortlist & more

Law360 has An Early Look At Trump's Supreme Court Shortlist

• The first three candidates all sit on the Fifth Circuit: U.S. Circuit Judges Stuart Kyle Duncan, Andrew S. Oldham and James C. Ho.
• Next on the list is Sixth Circuit Judge Amul Thapar, who was appointed to the court by Trump in 2017 and has quickly become one of the leading so-called feeder judges whose clerks appear more likely to later clerk at the Supreme Court.
• Another top feeder judge, D.C. Circuit Judge Gregory G. Katsas was appointed to the appellate court by Trump in 2017.
• Ninth Circuit Judge Lawrence VanDyke, who was appointed to the court by Trump in 2020, could also be on the president's shortlist if a Supreme Court vacancy arises. He is the former solicitor general for Nevada and Montana and has practiced law privately at Gibson Dunn. He also clerked for D.C. Circuit Judge Janice Rogers Brown, and earned his law degree from Harvard Law School.

Bloomberg Law has Liberals Face More Conservative Courts to Fight Trump Policies -- Circuit courts have become more conservative since 2017

• Half of the 12 geographic circuit courts have a majority of judges appointed by Republican presidents, up from a third eight years ago. And some of the most historically liberal benches, including the San Francisco-based US Court of Appeals for the Ninth Circuit, are trending rightward with only a narrow liberal majority.
• Before Trump took office, there were 81 appellate judges appointed by Democratic presidents and 68 by Republicans, plus some vacancies. There now are 86 active circuit judges appointed by Republicans compared to 79 by Democrats
• Trump tipped the ideological balance of the Philadelphia-based Third Circuit, the Atlanta-based Eleventh Circuit, and the New York-based Second Circuit. Biden managed to flip the majority back at the Second, but didn’t flip ideological control of any other circuits.
• Trump also left his mark on traditionally liberal circuits. He secured 10 nominees on the Ninth Circuit and five on the New York-based Second Circuit. ... Thirteen of the Ninth Circuit’s 29 judges and six of the Second Circuit’s 13 members were appointed by Republicans.
• Trump flipped 17 circuit seats, including three on the Ninth. ... Biden flipped nine seats, and none were on the Ninth Circuit.

Bloomberg Law also has Second Trump Term Opens Door to Even More Conservative Judges

• The incoming president will rely less heavily on establishment Federalist Society conservatives as he seeks judges who will rule in his favor. He appointed 234 judges in his first term [including 3 SCOTUS justices]
The Democratic-led Senate has confirmed 213 of Joe Biden’s appointees.
• There are 25 circuit judges eligible for retirement next year.

Law360 has GOP's Senate Win Hands Future Of The Judiciary To Trump

• As of Tuesday, 47 federal judicial seats are vacant, and 20 more are occupied by judges who have announced plans to assume senior status.

Phishing Warning!

This morning, many district courts, including the Southern District of California, are receiving reports of spoofed, phishing CM/ECF notices appearing to be system generated and asking the recipient to respond. If you receive a questionable CM/ECF notice, please do not click on links or open attachments. Instead, check the notice against the docket in PACER.

There has been nationwide reporting of fake Notices of Electronic Filing (NEFs) being sent to attorneys and law firms across the country. These fake NEFs are phishing attempts to convince recipients to respond back to the emails. Once a recipient replies to the email they are sent a follow-on email containing a link to access a document that leads the user to a malicious website. Please be sure to always validate cases and case documentation through CM/ECF only, and to never download any attachments or click any links from unofficial or questionable sources.

U.S. Courts News has Electronic Filing Scam Targets Attorneys -- Attorneys across the country are being targeted with fake electronic filing notifications, in which emails purporting to come from the federal Judiciary’s Case Management/Electronic Case Files (CM/ECF) system lead recipients to a malicious website with computer viruses.

In similar news, Law360 has Wash. Courts' Website Goes Dark After 'Unauthorized Activity'

• The Washington state courts' website was down for a second day Tuesday following an outage officials attributed to "unauthorized activity," though few details were available.
• The Washington State Bar Association published a statement on its website saying the state Court of Appeals' e-filing portal "is currently experiencing system unavailability, and unfortunately, we do not have an estimated time for restoration."

Appellate articles of note

Law360 has its latest installment of Wheeling & Appealing: The Latest Must-Know Appellate Action

Today's DJ has the monthly column Exceptionally Appealing, titled More, More, More (Appellate Reading Material). That column notes Justice Gorsuch's latest work, which is also the topic of this recent National Review article: The Campaign against Justice Gorsuch’s New Book Is an Embarrassment.

Expand Your Appellate Practice webinar

Expand Your Practice to Include Paid Appointed Appeals!

On November 13 at noon, 2d District APJ Lui and 3d District Justice Mesiwala and experienced appellate practitioners will present a Zoom webinar (sponsored by CAP-LA and CCAP) discussing the need for paid appointed counsel. Register here.

Recent DJ articles on this topic are here:

• Appointed-counsel are critical to access justice in the Courts of Appeal
• https://www.dailyjournal.com/articles/379007-crisis-looms-as-california-appellate-defense-counsel-faces-shortage-of-attorneys

2d District pro tem update

 

The following are currently sitting on assignment in the 2d District:

• Judge Kira L. Klatchko of the Riverside County Superior Court will be sitting Pro Tem in Division One until December 31, 2024
• Judge Anne K. Richardson of the Los Angeles County Superior Court will be sitting Pro Tem in Division Two from November 12, 2024, until November 30, 2024
• Judge Nicole C. Bershon of the Los Angeles County Superior Court will be sitting Pro Tem in Division Three until November 30, 2024
• Judge Mark K. Hanasono of the Los Angeles County Superior Court will be sitting Pro Tem in Division Three until December 31, 2024
• Presiding Justice Peter J. Siggins (ret.) of the First District Court of Appeal will be sitting Pro Tem in Division Four until November 20, 2024
• Judge Michael P. Pulos of the San Diego County Superior Court will be sitting Pro Tem in Division Seven until December 31, 2024

LA Courthouses closed for Dodgers Parade

Downtown Los Angeles Civic Center Courthouses and Court Facilities Closed Friday, Nov. 1, As a Result of Street Closures Caused by Los Angeles Dodgers’ World Series Victory Parade and in Anticipation of Significant Crowds

As a result of street closures, significant crowds and traffic congestion anticipated in the Downtown Los Angeles Civic Center area resulting from the Los Angeles Dodgers’ victory parade, the following Los Angeles County courthouses and facilities will be closed Friday, Nov. 1:

• Stanley Mosk Courthouse at 111 N. Hill St.

• Clara Shortridge Foltz Criminal Justice Center at 210 W. Temple St.

• Superior Court departments at the Spring Street Courthouse at 312 N. Spring St.

• Superior Court Archives and Records Center at 222 N. Hill St., Room 212.

AND

Second District Court of Appeal Announces Closure for Dodgers’World Series Championship Parade

LOS ANGELES, October 31, 2024 - The Second District Court of Appeal announced today that the court will be closed on Friday, November 1, due to the Los Angeles Dodgers' World Series Championship parade celebrations in downtown Los Angeles.

The closure affects operations at the Ronald Reagan State Building (300 S. Spring Street, 2nd Floor) due to anticipated large crowds and significant traffic congestion in the Downtown Los Angeles Civic Center area.

Facility Access and Operations

• Street closures around court building will begin at 4:00 a.m.
• The Ronald Reagan State Building is open; however, due to multiple street closures in the surrounding area, reaching the building may be difficult.
• Normal court operations will resume Monday, November 4

Electronic Filing and Deadlines -- Electronic filing services will remain available through the court's website at appellate.courts.ca.gov/district-courts/2dca. Parties with November 1 filing deadlines who typically file at windows rather than electronically may submit their documents in person on Monday, November 4.

Court Proceedings -- Oral arguments scheduled for November 1 will proceed remotely. Select cases will be continued to Monday, November 4.

Case Information and Contact

• For case-specific inquiries, parties should contact the court via email
• Case status updates are available through the Search Appellate Case Information portal on the court's website.

Original Jrdxn J.Lee podcast

Original Jurisdiction has a 45-minute podcast interview with 9th Judge Lee in San Diego: From Wachtell To The White House To The Federal Bench: Judge Kenneth Lee

Justice Moore receives Sills Award for Appellate Excellence

 

OCBA's Appellate Section has presented its Sills Award for Appellate Excellence for 15 years, awarding it to 8 justices and 7 attorneys over the years. (David Sills, for whom the award is named, was 4/3's PJ for over 20 years).

Last night the award was presented to Justice Eileen Moore (on 4/3 since 2000)--an amazing and accomplished veteran and judge who has an abundance of "Rizz." The program also had an MCLE component with Dean Chemerinksy and retired 10th Cir. Judge/Professor McConnell presenting their somewhat divergent view on SCOTUS.

SDNY Haunted House!

The WSJ has In a Legal House of Horrors, It’s an Office Contest That Scares the Judges Most

Once a year, the normally staid government office of audiovisual staffers, building architects, budget crunchers and court reporters is engulfed in fake blood, animatronic figures and strobe lights. What started as a workplace teambuilding exercise has turned into a cut-throat competition, presided over by district, magistrate and appellate judges from the Second U.S. Circuit Court of Appeals.

NLJ has Many Americans Don't Trust the Supreme Court This Election; David Boies Isn't One of Them

With the creeping tide of election cases now hitting the court's emergency docket, just 20% of Americans are confident in the court's ability to be "neutral" in a ruling on the 2024 election, according to the Pew Research Center.

Opinion opener

 

In this published opinion today, PJ Gilbert gets "punny" with this opening:

     Many Californians have high expectations that cannabis is legal in California.  This is a reasonable assumption because Civil Code section 1550.5 says it is.

     We regret to inform that cannabis is illegal in California because federal law says so.  

Articles of appellate note

Law360 has Patent Owner Fed Up With Fed. Circ's 1-Word Decisions -- "A patent owner has urged the U.S. Supreme Court to review the Federal Circuit's one-word decision affirming summary judgment in favor of TD Ameritrade in a high-stakes patent fight, saying the appellate court is routinely and summarily affirming orders that ignore factual disputes in patent cases, without explanation." The cert petition asserts that "a third of all patent appeals are resolved with just a single word."

Law360 also has Thapar Flays Law Schools, Attys For Anti-Originalist Mindsets

Despite the ascendance of conservative constitutional views, appellate attorneys are losing cases by failing to adapt, and the blame rests heavily with law schools that appear increasingly out of touch and undeserving of alumni donations, U.S. Circuit Judge Amul R. Thapar said Wednesday night in a bare-knuckle speech at a Heritage Foundation event.

Bloomberg Law has Judge Urges Law School Donation Halt Until Originalism Taught

The NLJ has The 2024 NLJ Awards: Professional Excellence—Appellate Hot List

The DJ had Former chief justice recalls wrangling with Legislature, Jerry Brown -- Former chief justice recalls being screamed at by legislators and being given budget lobbying advice by Gov. Jerry Brown.

ABAJ has Anti-abortion princess explains her friendship with Justice Alito after he discloses $900 gift

The 64-year-old princess is now “an anti-abortion and anti-immigration provocateur” with “ties to the European far right,” the New York Times said. Princess Gloria toured the Supreme Court in 2019 and posed with Alito and Justice Brett Kavanaugh.

Novel opening paragraph

Here's an unusual starting paragraph to this unpub from 4/3:

It is the rare case that leaves us scratching our heads and asking, “Why are we here?” This is such a case. The parties are in full agreement as to the relief sought by the appeal yet remain two ships passing in the night. The underlying action was settled, the settlement has been fully satisfied, and plaintiff HK Hong Mei Tang International Co. Limited (HK) already agreed in a writing filed with the trial court to the very relief sought by defendants Grace Hua Wu and Asia Pacific TW International Inc. (collectively, Wu) on appeal—that the judgment entered against them on July 27, 2023 (the July 27, 2023 order and judgment), be vacated and the action be dismissed with prejudice. Yet still, here we are.

The NLJ has At Supreme Court These Days, the Liberal Justices Are 'Textualists' Too

Kagan considers herself a "good textualist" and consistently credits the late conservative Justice Antonin Scalia, her former hunting buddy, with making the plain language of the law the central focus of modern statutory interpretation cases. She's not afraid of calling out her colleagues, particularly her Republican-appointed ones, when she thinks they're falling short of the standard they themselves claim to follow.

Info Needed re Possible Justices

The LACBA State Appellate Judicial Evaluation Committee (SAJEC) is evaluating Los Angeles Superior Court judges Samantha Jessner and Armen Tamzarian, and Supreme Court chambers attorney Matthew Scherb, for possible appointment to the Second District Court of Appeal. If you have input on any of the candidates, please complete the questionnaires linked below. Elaborations in the comments fields are especially helpful. To provide input beyond the questionnaire, contact committee chair Alana Rotter at arotter@gmsr.com. SAJEC appreciates your help!

https://www.surveymonkey.com/r/SAJECJessner

https://www.surveymonkey.com/r/SAJECTamzarian

https://www.surveymonkey.com/r/SAJECScherb

 

CLA CAC Appellate Mentorship Program

California Appellate Mentorship Program
The California Lawyers Association Litigation Section’s Committee on Appellate Courts seeks mentors and mentees for its new California Appellate Mentorship Program! This six-month, one-on-one mentorship program will connect lawyers aspiring to appellate practice with experienced appellate practitioners. Mentees can pursue career growth and professional development in a confidential and collegial setting. Mentors can share their experiences and assist the next cohort of California’s appellate lawyers. Find more information and to apply please see here before the December 10, 2024, deadline.

CJA hearings 11/25 @ 2 p.m. in LA

 Commission to Consider Appointments to Courts of Appeal -- The Commission on Judicial Appointments will hold public hearings on Nov. 25 to consider three appointments to appellate courts in Los Angeles.

The Commission on Judicial Appointments will hold public hearings on Monday, Nov. 25 starting at 2 p.m. to consider three appellate court appointments by Gov. Gavin Newsom. The commission will consider the following appointments during hearings held in the courtroom at the Ronald Reagan State Building, located on the third floor of 300 S. Spring Street in Los Angeles:

• Justice Brian M. Hoffstadt as presiding justice of the Second District Court of Appeal, Division Five
• Judge Michelle C. Kim as associate justice of the Second District Court of Appeal, Division One
• Judge Anne K. Richardson as associate justice of the Second District Court of Appeal, Division Two

The hearing will be webcast live on the California Courts Newsroom.

Article round-up

The Recorder has Court Orders Review of Attempted Murder Appeal After Attorney Failed to Disclose Suspension

Law360 has:

Atty Says Appellate Co.'s Ads Look Like Case Updates -- A California attorney has launched a proposed class action against appellate case management company Record Press in California federal court alleging that the New York-based company sends lawyers spam emails that deceptively appear to be important updates about ongoing litigation.

High Court Bar's Future: Solicitor General Elizabeth Prelogar

57 Scholars, Former Judges Call For High Court Term Limits

Congress Can And Must Enact A Supreme Court Ethics Code by NYC Bar Assn president.

Pop Culture Docket: Justice Lebovits On Gilbert And Sullivan

Gilbert & Sullivan -- not a law firm!

Bold Step / Dubitantes / Anand interview

The Recorder has Los Angeles Courts Took a Bold Step to Protect Your Rights. Here's Why It Matters -- In the past year in Los Angeles, there's been no transcript for too many lawyers and their clients in California family courtrooms due to a shortage of court reporters (and this is an even greater problem statewide). Los Angeles County courts finally took a step recently toward addressing that problem by allowing electronic recording.

The NLJ has When in Doubt: What's a Dubitante Opinion, and Why Do Judges Write Them? -- The name comes from the Latin word meaning "doubtful" and is typically used to express reservations with a majority decision's rationale without declaring it wrong.

Law360 has an interview with SCOTUS star/co-director of Stanford Law's Supreme Court Litigation Clinic: High Court Bar's Future: Stanford Law's Easha Anand

Mandatory Judicial retirement age?

Bloomberg Law has Voters to Weigh Judicial Retirement Age, Term Limits, Discipline which addresses various proposals in other states regulating judges:

• New Hampshire proposal would raise mandatory retirement to 75 from the current 70. Most states (33) have age limits for judges (CA does not). Vermont's mandatory retirement age is the highest, at 90. Texas's is 75.
• Arizona voters are being asked to scrap most retention elections and judicial term limits. AZ's mandatory retirement age is 70.
• Colorado voters will decide whether to create a judicial discipline adjudicative board composed of judges, attorneys, and citizens.