Anti-SLAPP appeal dismissed

The Sixth District publishes a lesson here about what to appeal and when in a published opinion:

appellants did not appeal from the order granting the anti-SLAPP motions but from the judgment of dismissal that followed later, which they relied on as the appealable order. We conclude, based on the applicable law that makes an order granting a motion to strike immediately appealable (§§ 426.16, subd. (i), 904.1, subd. (a)(13)), that appellants’ appeal as to the order on the anti-SLAPP motions was untimely. We similarly conclude that the challenge to the denial of the new trial motion is not cognizable on appeal from the judgment of dismissal, because the motion for new trial was itself untimely and did not serve as a valid basis to extend time for filing of the appeal 

Temporary tickets?

 Bloomberg Law reports: California Bar OKs Temporary Law Licenses in Place of Bar Exam

• The California State Bar’s Board of Trustees approved a plan that would grant temporary licenses to recent law school grads, as long as they promise to take the bar exam at a later date.
• The provisional licensing program, which had been ordered by the California Supreme Court, will serve as a stop-gap measure for law school graduates who haven’t yet passed a bar exam but wish to practice until the program ends in June of 2022. To remain licensed, participants will need to pass the bar once the program ends.
• The state’s high court on Wednesday rejected a petition for diploma privilege, which would have allowed lawyers to be fully licensed without ever taking the exam.

Cal Supreme Court Clerk's office closed today & tomorrow

The Supreme Court Clerk’s Office (350 McAllister Street, San Francisco) will be closed Wednesday, September 23 and Thursday, September 24, 2020—the court will continue to accept filings via e-Filing (Administrative Order 2020-9-23 also contains action on extensions of time). 

Official order here:

Due to circumstances associated with the COVID-19 pandemic, the California Supreme Court's offices at 350 McAllister Street in San Francisco will be closed on Wednesday, September 23, 2020 and Thursday, September 24, 2020. Pursuant to rule 8.66 of the California Rules of Court, the Chief Justice, in that capacity and in her capacity as Chair of the Judicial Council, finds it necessary to and does order that any filings with the court that are not subject to mandatory electronic filing (see California Supreme Court Rules Regarding Electronic Filing (Mar. 18, 2020)) and are due on either of these dates shall be deemed timely if filed on September 25, 2020. (Cal. Rules of Court, rule 8.66(a)(l).) 

CWL et al. Tribute to RBG program

As a tribute to Justice Ruth Bader Ginsburg, California Women Lawyers has joined with local, statewide and national women’s bar groups in California and across the nation to present an online celebration of Justice Ginsburg’s trial blazing life and work. This unique event brings together speakers from Justice Ginsburg’s inauguration, her work as a pioneer for equal rights, her time as a law professor and her work as a jurist. In conjunction with the speakers, participants will hear from a selection of women bar leaders speaking about the impact Justice Ginsburg made on their organizations and their work. Please join as for this powerful event on Thursday, September 24, 2020 at 5 p.m. PDT. Registration is required.

 

REGISTER HERE

DJ profiles Justice Groban

•  Today's DJ profiles Justice Groban in Opportunity Knocks -- After interviewing more than 1,000 judicial candidates, Justice Joshua Groban believes more than intelligence and experience are required for the job.
• Groban helped Brown pick more than 600 judges between 2011 and 2019, and one of the governor's final choices was to name his judicial appointments advisor to the California Supreme Court. "It's one of those 'one thing leads to another' stories," Groban said.
• Judicial appointments, of course, was the job that made Groban famous in state legal circles. Many current judges like to tell the stories of when and where they were when they received their call from the now-justice. Groban made a lot of these calls, including to three of his now-colleagues on the high court. Working together, Brown and Groban created the most diverse judiciary in state history. Of Brown's 644 choices, 44% were women and 40% were racial minorities.
• "I came from one of those families where we ate dinner every night," he said. "Every issue of the day or from the front pages of the newspaper was discussed and debated. You were expected to have a view and you were expected to defend your view."
• Groban graduated from Stanford University with honors, then cum laude from Harvard Law School and clerked for Judge William C. Conner in the Southern District of New York. He spent six years as an associate with Paul, Weiss, Rifkind, Wharton & Garrison LLP before joining Munger Tolles & Olson LLP in 2005. Groban also taught state appellate practice at UCLA School of Law.
• "I'm having a blast," Groban said. "I really truly feel blessed. The colleagues are amazing, the resources are astounding, the staff are top-notch and the cases are as interesting as they come. For a lawyer, it really is a dream job."

Articles of note

Today's DJ has Ginsburg recalled by ex-clerks as a precise writer and ‘inspiring’ boss about California lawyers with RBG-links, including Justice Liu, appellate lawyer Anna-Rose Mathiason, et al. See also here for a similar Recorder article.

Today's DJ also has Johanna Schiavoni's 10 Tips for participating in remote video oral arguments.

The Recorder's On Appeals column has Ben Feuer's The Golden State Warriors’ Loss Might Be the Contract Drafter’s Gain -- The team’s $50 million loss in the First District last month includes a valuable tip for lawyers who draft contracts with arbitration clauses.

Dan Huckabay has Appeal Bonds for Insurance Companies, from DRI's Covered Events newsletter.

Also of interest for those following the 2d District closely here.

SCOTUS Press Release: RBG to lie in repose

 Associate Justice Ruth Bader Ginsburg will lie in repose at the Supreme Court of the United States on Wednesday, September 23, and Thursday, September 24. The casket will arrive in front of the Court just before 9:30 a.m. on Wednesday. A private ceremony will take place in the Great Hall at 9:30 a.m. attended by Justice Ginsburg’s family, close friends, and members of the Court. Following the private ceremony inside, Justice Ginsburg will lie in repose under the Portico at the top of the front steps of the Building to allow for public viewing outdoors. Press coverage will be pooled and details will be provided in a separate media advisory.

Former law clerks to Justice Ginsburg will serve as honorary pallbearers and will line the front steps as the casket arrives. Supreme Court police officers will serve as pallbearers. The Justices will remain inside the Great Hall where the casket will be placed on the Lincoln Catafalque, which has been loaned to the Court by the U.S. Congress for the ceremony. A 2016 portrait of Justice Ginsburg by Constance P. Beaty will be on display in the Great Hall.

The public is invited to pay respects in front of the Building from approximately 11 a.m. until 10 p.m. on Wednesday, September 23, and from 9 a.m. until 10 p.m. on Thursday, September 24. Further guidance regarding the public viewing will be available on the homepage of the Court’s website.

A private interment service will be held next week at Arlington National Cemetery.

[Also from the NYT: The justice will also lie in state in the United States Capitol, the first woman in American history to be so honored, and her coffin will be placed on the same catafalque that bore the body of President Abraham Lincoln, Speaker Nancy Pelosi announced on Monday. The only other member of the Supreme Court ever to lie in state at the Capitol was William Howard Taft, who had served as president before becoming chief justice.]

RIP RBG

 Law360 just reported: BREAKING: Justice Ginsburg, 87, Dies After Cancer Battle

Justice Ruth Bader Ginsburg, the longest-serving liberal member of the U.S. Supreme Court has died, the court announced Friday night, opening a Supreme Court vacancy in a contentious election year.

Law.com has Justice Ruth Bader Ginsburg, Champion of Women's Rights and Second Female Justice, Dies at 87 -- “Our nation has lost a jurist of historic stature," said Chief Justice John Roberts.

Equal Justice Under Law?

 NLJ reports: Former SCOTUS Clerks Are More Likely to Win Their Justices' Votes, Study Asserts -- "An attorney who formerly clerked for a justice is 16% more likely to capture that justice’s vote than an otherwise identical attorney who never clerked," the authors of a new study assert.

• Former U.S. Supreme Court law clerks have a statistically significant advantage of winning the vote of their former justice than do other lawyers arguing at the high court, according to a new study.
• The 16% statistic is significant.... “In the scheme of social science research, it’s uncommon to see something that moves that much,” .... “We usually are able to see something like a 5% point change, with a little spin on it. But this is a sizable effect.”
• One justice’s vote may determine the outcome in the court’s closest (5-4) cases. “In our data, we observe a total of 710 cases decided by a single vote. Of these 710 cases, fully 10% featured a former law clerk who argued before her justice and ultimately ended up winning the 5-4 case and her justice’s vote. Perhaps more tellingly, fully 52% of these 5-4 cases featured no former Supreme Court law clerks arguing for the losing side,” the authors wrote.

Feds Phones out!

The 9th Circuit (and other courts) report: September 17, 2020 / Announcements

The federal courts are experiencing a national disruption in their phone systems today. We are working to correct the problem. In the meantime callers are not able to reach the Court by telephone.  You can reach the clerk’s office via email at Questions@ca9.uscourts.gov and if you have an emergency motion you can email Emergency@ca9.uscourts.gov

On the topic of phones, Law360 has US Federal Courts Hit With Nationwide Phone Outage AND Telephone Arguments Are 'Less Fun,' Justice Breyer Reports

AJEI news & free programs

Greetings, attendees, participants and sponsors of the Appellate Judges Education Institute: As you are all aware, the AJEI Summit, originally scheduled for November 12 – 15, 2020, in Austin, Texas, has been postponed and will now take place November 11 – 14, 2021, in Austin, Texas. For over two decades, AJEI has been the premier institute for the education of appellate judges and lawyers. We did not want to let a year go by without connecting with you and providing the quality education that you have come to expect. We are pleased to offer two upcoming webinars, described below. Please register and join us. These CLE webinars are offered at no cost in partnership with the National Judicial College (NJC) and the American Bar Association Judicial Division Appellate Judges Conference (AJC)

 

Hon. James E. Lockemy Chief Judge, South Carolina Court of Appeals Chair, Virtual Education Committee Hon. Albert Diaz Judge, United States Court of Appeals for the Fourth Circuit Chair, Appellate Judges Education Institute

 

 

Mirror, Mirror on the Wall, Who’s the Least Biased of Us All? Wednesday, October 21, 2020 11 a.m. Pacific / Noon Mountain / 1 p.m. Central / 2 p.m. Eastern  |  Duration: 90 minutes As our nation grapples with the principles of diversity, equity, and inclusion, there has never been a more opportune time to take an honest look at the implicit biases we each have undoubtedly inherited. Please join a social scientist and appellate lawyers and judges for an introspective and frank talk on how implicit bias, racial anxiety, and stereotyping infect the bar and the courts, including at the appellate level, and how we can improve the public’s trust and confidence in our systems. Moderator:  Justice Luz Elena D. Chapa, Texas Fourth Court of Appeals, San Antonio, TX Panelists: Chief Judge Roger L. Gregory, United States Court of Appeals for the Fourth Circuit, Richmond, VA; Gerald H. Goldstein, Goldstein & Orr, San Antonio, TX; Yolonda Harrison, Deputy Director of Programs and Assessment, Perception Institute, Phoenix, AZ

 

Read more and register

 

 

Supreme Court Review: Civil and Criminal Thursday, November 12, 2020 Noon Pacific / 1 p.m. Mountain / 2 p.m. Central / 3 p.m. Eastern  |  Duration: 2 hours (a 15-minute break is scheduled between the civil and criminal updates) What are the most important civil and criminal opinions of the United States Supreme Court this year? Join Berkeley Law Dean Erwin Chemerinsky, renowned scholar of constitutional law as he reviews the significant cases, in his informative and exciting style, and explains what every appellate judge and lawyer needs to know. In 2017, National Jurist magazine again named Dean Chemerinsky as the most influential person in legal education in the United States. Speaker: Erwin Chemerinsky, Dean of the University of California, Berkeley, School of Law Duration: 2 hours (a 15-minute break is scheduled between the civil and criminal updates)

 

Read more and register

Chief Justice to participate in a Constitution reading

Tomorrow is Constitution day, and Chief Justice Tani Cantil-Sakauye will participate in a celebratory reading of the 233-year-old document as part of a program by E.D. Cal.

The livestream is scheduled to begin at 10 a.m. and last approximately 90 minutes.

The reading will commemorate the anniversary of the Constitution’s signing in 1787, as well as the anniversaries of the 15th Amendment (the right of citizens to vote) and 19th Amendment (the right of women to vote), ratified 150 and 100 years ago, respectively.

And on Law.com see: 'Stop Complaining and Start Participating,' SCOTUS' Breyer Says of Threats to Democracy -- U.S. Supreme Court Stephen Breyer delivered Constitution Day remarks to the George Washington University community Sept. 17, noting the benefits and drawbacks on holding oral arguments by phone.

New S.D. Cal. judge

 The 9th Circuit's press release about new Judge (former AUSA) Todd Robinson is here.

Free PACER one day...?

Law.com has House Judiciary Advances Bipartisan Bill to Make PACER Free to Public:

The Open Courts Act of 2020, introduced by Reps. Hank Johnson and Doug Collins, would give the federal judiciary two to three years to update and modernize its electronic public access program before making PACER free for the public.

Johnson, who introduced the bill and chairs a subcommittee on the courts, also cited a need to make court filings more accessible for lawyers who don’t have the same resources as attorneys with Big Law firms. “Convenient access to public records in federal courthouses shouldn’t be a privilege just for the wealthy few and their silk stocking, tassel shoe-wearing corporate lawyers,” he said. “Young attorneys who want to use their law degree to make a difference deserve the same access to the federal court system as their wealthy corporate counterparts.”

Law360 has House Panel Advances Bill To Make PACER Free:

Anyone who goes to the U.S. Supreme Court can read any of the documents filed before the court free of charge," Johnson said. "That's the way it should be. The public has a fundamental right to free access to public documents."

Appellate Stays program

CLA's Litigation Section Committee on Appellate Courts presents H&L's Thomas Watson & David Axelrad in

Stays of Enforcement Pending Appeal October 6, 2020 @ 12 noon This program offers 1 participatory MCLE credit; 1 legal specialization in appellate law.

 

Register

 

One of the critical intersections between trial and appellate court practice  occurs when litigants who want to appeal need to stay enforcement of the judgment or order being appealed. This seminar provides an overview of the law governing stays pending appeal, including appeal bonds and  deposits in lieu of bonds, and provides trial and appellate counsel with the tools needed to protect the interests of a client pursuing appellate relief.

SCOTUS stays telephonic

 Law360 reports: Supreme Court To Start New Term Via Telephone

The U.S. Supreme Court will continue to hold oral arguments by telephone for the start of the new term in October in light of the ongoing coronavirus pandemic, a court spokeswoman said Wednesday

the justices will continue to ask questions in order of seniority for the 10 arguments scheduled for a two-week session starting on Oct. 5

[Law.com article here]

Make that 3 new C.D. Cal. judges

 The Ninth Circuit's News Release is here:

The United States Senate today voted to confirm President Donald Trump’s nominations of attorney Mark C. Scarsi, California Superior Court Judge Stanley Blumenfeld, Jr., and attorney John W. Holcomb to serve as U.S. district judges for the U.S. District Court for the Central District of California. The Senate voted 83-12 for Mr. Scarsi, 92-4 for Judge Blumenfeld, and 83-12 for Mr. Holcomb.

Law360 article here:

Tuesday was the first time the Senate confirmed a California trial judge since Oct. 5, 2015 — a remarkable drought for the nation's most populous state, which has 61 federal district judgeships. Seats have remained open for as long as six years, sending caseloads soaring and prompting the Central District's chief judge to send an unusual plea for reinforcements, warning that a vacancy crisis posed a threat to justice.

CLA's Appellate Summit

Litigation and Appellate Summit (now virtual) -- The multi-day virtual summit kicks-off October 9, 2020 @ 9:30 am-12:30 pm. The Litigation Summit will continue with events on October 13, 15, 20 and 22, all 9:30 am-12:00 pm. The Appellate Summit will continue for a second day on October 16 @ 2:00-5:30 pm. 

The Litigation Summit is designed for trial lawyers and includes top-notch panels on key topics including the CA litigation update, ESI ethics, attorney competence and wellness, diversity and inclusion in the legal profession, and ADR. And, we will hear from a Trial Lawyer Hall of Fame member about trial skills and from a panel of federal and state judges about expectations in and out of the courtroom. In addition, John Burris will be inducted into the Trial Lawyer Hall of Fame on Thursday, October 22, at the conclusion of the Litigation Summit. Find out more about this remarkable lawyer. Participants will earn a total of 8 hours of MCLE, with one hour each in ethics, competence, and elimination of bias.

The Appellate Summit is designed for appellate lawyers and will include an inside look at the California Solicitor General’s Office, important updates on Ninth Circuit rules and bluebooking, insights into the California Supreme Court’s decision in Conservatorship of O.B., and a master class on appellate ethics with Jon Eisenberg, the Honorable Ignazio Ruvolo, and Laurie Hepler. In addition, Dennis Riordan will be inducted into the Appellate Lawyer Hall of Fame on Friday, October 16, at the conclusion of the Appellate Summit. Find out more about this remarkable lawyer.

Participants will earn 4.5 hours of MCLE, with one hour of ethics, all of which qualify for the appellate legal specialization.

Registration is now open so claim your spot today! 

ALSO: The September 2020 issue of Litigation Update is now online, keeping you up to date on current case law. This issue includes the following case summaries and more!

New C.D. Cal. Judge

Law.com reports Milbank Managing Partner Confirmed to Central District of California -- Milbank’s Mark Scarsi will help reduce the dozen judicial vacancies the court’s chief judge has said pose a “grave danger” to the justice system.

• With Scarsi, the court will now have nine judicial vacancies, and President Donald Trump has put forth nominations for all but two unfilled judicial positions in the Central District.
• The Senate is also slated to hold a cloture vote on three other nominees for the seats in California Tuesday. If those votes pass, the nominees could be confirmed by the end of the week. Those nominees are Los Angeles Superior Court Judge Stanley Blumenfeld and Costa Mesa Greenberg Gross partner John W. Holcomb, for the Central District; and Assistant U.S. Attorney Todd Robinson to the Southern District of California.

Law360 has GOP Leader Makes Late Drive To Leave 'No Vacancy Behind'

• Senate Majority Leader Mitch McConnell has just shy of four weeks left before his chamber's 2020 session is relegated to lame-duck status, and with dozens of court nominees still on tap, the question hangs over Washington as to how many he can get confirmed before the November election.
• More than 60 seats remain unfilled in the federal trial courts, with a large slate of Trump nominees in waiting, though McConnell has already made good on his pledge to push through all of the president's circuit court appointees.
• Although California Sen. Dianne Feinstein, the ranking Democrat on the Judiciary Committee, has long decried Trump filling appellate seats without what she considers adequate consultation, she has nevertheless pressed to get trial seats in the Golden State filled because of the shortage on the bench.

Concurring opinion or law review op-ed?

 By now you've no doubt read (or at least read about) the concurring opinion in B.B. v. County of Los Angeles (Aug. 20, 2020) 10 Cal.5th 1 (see pp. 53-62 here) as well as the Supreme Court's Statement on Equality. This month's Gilbert Submits DJ column is On the other hand ...which asks "Despite its passion and strength, does this concurring opinion belong here?"

• Maybe because of the race and circumstances under which the decedent died, the similarities to the George Floyd murder, the concurring opinion was justified. But would the message of the concurring justices been better expressed in a law review article, and not in an opinion where the decedent happened to be African-American?
• On the other hand, these views are a legitimate expression of the changing landscape of a systemic national issue that all our governmental political institutions should acknowledge as often as possible. Are they not an expansion of what all members of the court expressed in its June declaration? "On the other hand..."

For some outstanding and useful blogging from Cal Appellate Report and At the Lectern, see here and here and here.