Ideas to address delay

Today's DJ has Appellate attorneys group suggests efficiency improvements

The California Academy of Appellate Lawyers has submitted recommendations to the California Judicial Council “to improve the efficiency of the appellate process statewide.” These come in response to allegations of long-delayed opinions in one district, and include a request to implement changes recommended in another report 21 years ago.

See the CAAL's RECOMMENDATIONS TO THE CALIFORNIA JUDICIAL COUNCILTO INCREASE THE EFFICIENCY OF THE APPELLATE PROCESS

Also of note, retired federal Judge Shira Scheindlin has Trump's judges will call the shots for years to come. The judicial system is broken.

And note: Judge M. Margaret McKeown ReceivesWashington Women Lawyers’ President’s Award

CRF needs mock trial judges!

The 2021 Los Angeles Mock Trial Competition is a few weeks away and the Constitutional Rights Foundation still needs of volunteers.
2021 Los Angeles County Mock Trial Dates:
Monday, Nov. 1 - Senior Division Round 1
Wednesday, Nov. 3 – Junior Division Round 1
Monday, Nov. 8 – Senior Division Round 2
Wednesday, Nov. 10 – Junior Division Round 2
Tuesday, Nov. 16 – Senior Division Round 3
All trials are scheduled to begin at 5:00pm and will be conducted via Zoom. Instructions will be emailed before the trials are set to begin. To register, please click this link: https://www.crf-usa.org/mock-trial-program/mock-trial-volunteers.html
For more information, contact Sean-Michael Ramirez at sean-michael@crf-usa.org

Also of note:

• The Atlantic has Jeremy Rosen's John Eastman Is Not a Victim of Cancel Culture
• Law.com has 9th Circuit Pick Holly Thomas Defends Past Transgender Rights Advocacy as Republicans Go After Her Record
• California’s Winter Bar Exam Will Be Held In Person, Supreme Court Says
"The California Supreme Court on Wednesday issued an order announcing that the exam will take place in person Feb. 22-23, “subject to any restrictions that may be imposed by any state or local public health orders in effect on those dates.”"

RIP Joe Lane (2d Dist. Clerk)

Joseph Lane, Former Second District Court of Appeal Clerk/Executive Officer Dies at Age 69 -- Long career dedicated to public service

"Joseph (Joe) Lane, the former Clerk/Executive Officer for the Court of Appeal, Second Appellate District in Los Angeles died at age 69 yesterday after a brief battle with cancer. His career with the appellate court lasted 39 years before his retirement in 2018."

The appellate community mourns Joe's passing: "he was a true gentleman who never lost sight of the fact that the Court was there to serve the public"; "his philosophy was that that the goal of the clerk's office was to help people get into court--a refreshing approach, when it so often seems like many clerks look for reasons to keep people out of court"; "always a mensch"

Appellate tidbits

Today's DJ has Marc Alexander's book review of Justice Breyer's "The Authority of the Courts and the Peril of Politics," titled Do Justices studiously try to avoid deciding cases on the basis of ideology?

Yesterday's DJ Moskovitz on Appeal begins a 4-part series titled My Most Memorable Client.

Yesterday's MetNews has Ninth Circuit Judges Spar Over Citing Unpublished Cases: Rawlinson Argues in Dissent That Court of Appeal or Appellate Divisions Opinions Not Certified for Publication Can Provide Insights As to How the California Supreme Court Would Decide Questions of State Law about State Farm v. Penske Truck Leasing.

The Recorder has an interview with M.C. Sungaila, Q&A: Buchalter’s Appellate Chair Says Virtual Arguments Can Be ‘Fun’.

Want some mentoring about how to become a 1st District Justice? Apply via the California Judicial Mentor Program (Appellate). Read about it here: First Appellate District Launches Judicial Mentorship Program -- Mentorship program is part of a larger statewide effort to diversify the California bench

• For 15 years in a row, California’s judicial bench has grown more diverse, according to Judicial Council data. The number of female judicial officers has grown to nearly 38% of judicial officers across all levels, while the percentage of Asian, Black, and Hispanic judicial officers nearly doubled over the same period.
• But even with these encouraging trends, nearly two-thirds of the state’s justices and judges are men and 65% are white.

APABA presents a free Recent Trailblazers webinar program (Oct. 28 @ 5:30) featuring AG Rob Bonta, 4/1's Justice Truc Do, and other luminaries. Sign up here.

On the practice front, don't miss footnote 2 here, where the court tears into a "hideous" oversized appendix! The phrase "wretched excess" is cited. The court also provides this nice reminder: "Citing to the Register of Actions, rather than including the document itself, is an appropriate way to reference that a document was filed if its contents are unimportant to the issues on appeal."

D.C. appellate news of note

D.C. Circuit to return to in-person arguments: "In-Person Oral Arguments to Resume December 1, 2021. Subject to adjustment as conditions and the latest public health guidance may warrant, the court will resume holding in-person oral arguments on December 1, 2021. All oral arguments prior to that date will proceed remotely by video conference using Zoom for Government. An audio feed from oral arguments will be live-streamed to the public at no cost on the Court's YouTube channel, except when sealed material is being discussed. Protocols for in-person oral arguments are forthcoming and will be posted to the Court's website."

Also of note on The Marble Palace Blog: 'OYEZ! OYEZ!' Meet the New Marshal: "The Supreme Court has a new voice: Gail Curley, the court’s new marshal. She began her service June 21 but wasn’t seen in the courtroom until the First Monday in October. The position of marshal is best known for “crying the court,” a quaint phrase that means in plain language that she announces the court’s arrival on the bench when it is in session."

Gail Curley, the new marshal, was an Army colonel and judge advocate general. It is not unusual for the court to recruit important officers of the court from the military. 
Retired clerk of the court William Suter, himself a top JAG official, [said], “Military retirees are attractive to certain employers, the state and federal judiciaries in particular. SCOTUS thrives on tradition and discipline, just like the military. Military veterans have also lived a life of observing and providing good leadership.”

And the NYT has A Century-Long ‘Reign of Error’ for a Supreme Court Typo

And the WSJ has yet another article on Federal Judges or Their Brokers Traded Stocks of Litigants During Cases

SCOTUS news & more

NLJ has Biden's Supreme Court Commission Goes Public With Draft Findings

• The draft materials are the first public findings released by the commission since it was created by President Joe Biden in an April executive order. The commission was not charged with making specific recommendations, but rather analyzing certain proposals for court reform.
• The commission divided its draft discussion materials into five parts: a history of the reform debate; membership and size of the court; term limits; the court’s role in the Constitutional system, and case selection and review: docket, rules and practices.

Bloomberg law has Hybrid Format Leads to Longer Supreme Court Arguments -- "The U.S. Supreme Court has taken a more lax approach to time limits since returning to in-person arguments this month and that’s leading to longer sessions." The article notes that time was exceeded in 7 of 9 cases heard this month.

The NYT runs this op-ed on Justice Thomas.

The Vetting Room has a piece on Judge Gabriel Sanchez - Nominee to the Ninth Circuit

CLA's Litigation Section's October 2021 issue of Litigation Update is now online. 

The DJ has 3rd District Speedup too late for some defendants -- "Some defendants have served months or years more in prison or jail only to have their sentences reduced or vacated by the 3rd District Court of Appeal after they were already released, attorneys say."

Law.com has Is Now the Time for Law Firms to Rethink the Makeup of Trial Teams? "Some law firms are using the pandemic to experiment with trial teams that also include appellate lawyers." "[W]hile adding appellate attorneys to trial teams is not new, the pandemic may have accelerated the trend" because "there's been an increased emphasis on dispositive motions, and on pretrial appellate remedies" to move cases off trial court dockets.

Amicus disclosures

Law.com has Chamber of Commerce Opposes Tougher Amicus Disclosure Rules in Letter to Judiciary Rules Panel

• 
  The U.S. Chamber of Commerce is opposing suggested changes to a financial disclosure rule covering amicus briefs, saying broadening the reporting requirements will ”chill core First Amendment interests.”
  
• The chamber, the largest corporate lobbying group in the country, sent a letter last week to the committee’s chairman, Judge Jay Bybee of the U.S. Court of Appeals for the Ninth Circuit, contending such an amendment would have no clear benefit.
• A study by two Arnold & Porter Kaye Scholer attorneys found that the 2019–20 Supreme Court term had more than 900 amicus briefs filed in argued cases, the second-highest number since the pair started tracking it in 2010.

Also, tonight's virtual event "Garden Party 2021" by the Western Center on Law & Poverty will honor retired 2/7 Justice Laurie Zelon. (Donate here.)

Today's DJ has Victims waited years for 3rd District decision to allow restitution, highlighting the serious consequences of appellate delay.

Rodriguez confirmed to 1/3

Commission Confirms Justice to First District Court of Appeal
Chief Justice Tani G. Cantil-Sakauye, chair of the Commission on Judicial Appointments, announced that the commission today confirmed Judge Victor A. Rodriguez as Associate Justice of the Court of Appeal, First Appellate District, Division Three (San Francisco).

Justice Victor A. Rodriguez fills the vacancy created by the elevation of Justice Teri L. Jackson as Presiding Justice of the First District Court of Appeal, Division Five. Justice Rodriguez served on the Alameda County Superior Court since 2018. He served as supervising staff attorney for Justice Mariano-Florentino Cuéllar at the California Supreme Court from 2015 to 2018, where he also served as judicial staff attorney for Justices Carlos R. Moreno, Goodwin H. Liu, and Carol A. Corrigan from 2006 to 2015. He served as a law clerk for Judge Consuelo B. Marshall at the U.S. District Court for the Central District of California from 2005 to 2006. Judge Rodriguez was a Skadden Fellow at the Mexican American Legal Defense and Educational Fund from 2003 to 2005. He earned a Juris Doctor degree from the University of California, Berkeley School of Law and a Master of Arts degree in Communication Studies from California State University, Long Beach.

The Recorder has Alameda County Judge Victor Rodriguez Confirmed to First District Court of Appeal

The DJ has Alameda judge confirmed to court of appeal, noting "His appointment boosts the number of Hispanic justices on the state appellate courts to eight, compared to California’s population, which is nearly 40% Latino."

Upcoming LACBA programs

The LA County Bar Association's Appellate Courts Section will be presenting the following:

October 19 (Noon-1:00 pm) - Reducing Bias in the Legal Profession Through Diversity Mentoring in Appellate Practice. Learn about the need for greater diversity in the appellate bar and efforts to overcome bias and to diversify the appellate profession through appellate mentorship programs from Professor Christine Chambers Goodman, LACBA’s Vice President of Diversity, Inclusion & Outreach; Juvaria Khan, the founder and Executive Director of the Appellate Project, a nonprofit focused on empowering law students of color to pursue appellate work; Deputy Federal Public Defender and program mentor Gia Kim; and judicial law clerk and former program mentee Christopher Galeano. The program offers one hour of Elimination of Bias CLE credit. Register here.

November 17 (Noon-1:30 pm) - Brandeis Briefing. Section Secretary Julia C. Shear Kushner will moderate a discussion on using social science and other non-legal sources in appellate advocacy with Justice Therese M. Stewart (First District, Division Two); Professor Elie Margolis, Temple University School of Law; Greg Wolff, California Appellate Law Group (former Chambers Attorney, California Supreme Court); and Leslie Ellen Shear, Law Office of Leslie Ellen Shear, CALS CFLS.

Moot court judges needed

UC Davis School of Law is hosting the Martin Luther King, Jr. National Civil Rights Moot Court Competition this weekend. They are in need of some volunteer judges for Saturday afternoon from 1:45pm to 5pm. This competition is virtual.  If you would like to volunteer to be a judge, please contact Vivienne Pismarov by email at  vapismarov@ucdavis.edu

Also of note: At The Lectern has this interesting post on the the Cal Supreme Court as a feeder court for SCOTUS clerks: 13 have clerked at both the U.S. and California Supreme Courts

Today's DJ has Dean Chemerinsky with There is no such thing as value-neutral judging: "Over a century ago, the Legal Realists exploded the myth that judges can mechanically apply the law without making value choices. Now, astoundingly, several U.S. Supreme Court justices are trying to tell us that their views and ideology have nothing to do with their decisions. That is nonsense and it is hard to imagine they are persuading anyone."

Volunteer Board of Directors Members Sought

Volunteer Board of Directors Members Sought: The First District Appellate Project (FDAP), a non-profit law firm based in Oakland is conducting an open search for multiple Board of Director positions to be filled in 2022. FDAP’s mission is to ensure quality representation of individuals who cannot afford counsel in criminal, delinquency, dependency, and mental health appeals in California’s First Appellate District and in the California Supreme Court. To carry out this mission, FDAP recruits and trains panel attorneys; matches attorneys to cases based on their experience, skills, and expertise; and provides panel attorneys with direct assistance in their cases. In a small number of cases, the Court also appoints FDAP staff attorneys to provide direct representation to indigent clients. FDAP board members are actively involved in organizational governance, including oversight of the executive director, financial oversight, and ensuring that organizational programming and administration serve FDAP’s mission. Board members attend three regularly-scheduled board meetings annually and other meetings scheduled as necessary, participate in board committees, and review materials prepared for board meetings.

Details here.

Appellate partnership news

Congrats to Wendy Albers & Judy Posner, the two newest partners at appellate boutique Benedon & Serlin, LLP!

Appellate Diversity Mentoring program

LACBA's Appellate Courts Section will present a Zoom webinar on October 19 at noon on:

Reducing Bias in the Legal Profession Through Diversity Mentoring in Appellate Practice

Learn about the need for greater diversity in the appellate bar and efforts to overcome bias and to diversify the appellate profession through appellate mentorship programs from Professor Christine Chambers Goodman, LACBA’s Vice President of Diversity, Inclusion & Outreach; Juvaria Khan, the founder and Executive Director of the Appellate Project, a nonprofit focused on empowering law students of color to pursue appellate work; Deputy Federal Public Defender and program mentor Gia Kim; and judicial law clerk and former program mentee Christopher Galeano. CLE: 1.0 Hours of Elimination of Bias CLE Credit

The Recorder has Retired Supreme Court Justice Ming Chin Takes on New Role as a Neutral

Judge Koh' senate hearing

NLJ reports Biden 9th Circuit Pick Draws Republican Ire Over COVID-19 Religious Gathering Ruling

• Sen. Josh Hawley, R-Missouri, suggested she might have an implicit bias against religious people. “I’m a person of faith, so I would have to be having a bias against my own self,” Koh replied.
• She said that, as a trial judge, she has appreciated “clear guidance” from appellate courts. “When I sat by designation on the Ninth Circuit, it gave me a new perspective on my own cases, on how to make a record, on what I should make sure to address in my own rulings,” Koh said. “And I’m hoping—since that experience gave me new eyes—I’m hoping that my experience as a trial judge, if confirmed, would give me just a really good perspective as an appellate judge.”
• If confirmed, Koh would be the first Korean American woman to sit on a federal appeals court. She described how her mother, as a child, escaped from North Korea to South Korea before later immigrating to the U.S. Koh also described the patriotism of her late father, also an immigrant, including how he would take them to presidential libraries and stand in the rain for processions when presidents died.
• “I think it is so important to reaffirm the American Dream that anybody can become a judge in the United States,” Koh said. “I think, also, it’s important to just enhance the confidence that everyone has, the community has, in our justice system.”

Aronson to receive Sills Award

Justice Richard M. Aronson (Ret.) is receiving the Orange County Bar Association Appellate Law Section’s David G. Sills Award for Appellate Excellence on the evening of Tuesday, November 9, at the Turnip Rose in Costa Mesa. We’re very excited to honor Justice Aronson’s contributions to the law at this event, which will be held outdoors.

The OCBA is offering two sponsorship levels this year:
Platinum Level $1500: Two tickets with VIP seating to the event (includes dinner) ▪ Branded emails, registration page, social media channels, and email blasts pre-event ▪ Full page Tribute with logo in the event program Moderator mention at beginning of program ▪ Signage at event
Diamond Level $1000: Two Tickets with VIP seating to the event (includes dinner) ▪ Branded emails, registration page, social media channels, and email blasts pre-event ▪ 1/2 page Tribute with logo in the event program ▪ Signage at event

FYI, Justice Aronson (ret.) is now with JAMS.

Register now here!

PJ Gilbert on "SCOTUS"

PJ Gilbert's Under Submission column this month is My Warranty is Up, in which he writes: "I am optimistic that Supreme Court justices who read this column will take my advice and write shorter opinions." He's also not a fan of the acronym used to refer to the nation's highest court:

Do not mean to be disrespectful, but SCOTUS is a good name for a pet dog. "Here SCOTUS. Come SCOTUS. Be a good SCOTUS." I cannot help myself, but lately I have been saying "Bad SCOTUS." And with the cases set for argument this term, SCOTUS needs a strong leash. Nobody's listening, but why doesn't SCOTUS and other courts write shorter opinions?

Law360 has One-Third Of Americans Open To Disbanding High Court about a startling survey released Monday.

The DJ's Exceptionally Appealing column today has Tricks and treats in Halloween precedent.

There's also been much press along the line of this Recorder article: Former Judges Join Call for Bar Investigation of John Eastman

In addition to [former Cal Supreme Court Justices] Grodin and Werdegar, the letter is signed by retired Northern District Judges Thelton Henderson, D. Lowell Jensen, and Fern Smith; Bay Area attorney and former ambassador to Australia Jeff Bleich; James Brosnahan, senior of counsel at Morrison & Foerster; former San Francisco City Attorney Louise Renne; and UC Berkeley School of Law Dean Erwin Chemerinsky. Sixteen other law professors, former prosecutors and retired judges also signed.

Law360 also has Georgia's Court Chief: The Bruising Questions Lead to Wins, about the new Georgia Supreme Court chief justice known for asking tough questions during oral argument. He's quoted:

"If they are hard questions, that's because they are hard questions and if you don't have an answer for them, it's not that I'm being mean, it's that your case has a problem," said Chief Justice David E. Nahmias. "If they're stupid questions — and I occasionally, like all judges, ask stupid questions — that's the best question of all, because you get a chance to point out, 'Well, actually, that's not this case.'"

OC (4/3) news

 

October 4, 2021

SANTA ANA—Associate Justice David A. Thompson of the California Court of Appeal, Fourth Appellate District, Division Three will retire from the court on October 15, 2021. “After 24 years on the bench, I am looking forward to returning to the private sector for the next chapter in my legal career,” Justice Thompson stated.

Justice Thompson served on the appellate court for 9 years and authored more than 700 opinions covering the full spectrum of civil, commercial, and criminal litigation. Previously, he served 15 years as a trial judge in the Orange County Superior Court where he presided over hundreds of civil trials and heard thousands of civil motions. Click here to read the full story.

September 30, 2021

Presiding Justice Kathleen E. O’Leary of the California Court of Appeal, Fourth Appellate District, Division Three will celebrate 40 years as a California judicial officer on October 2, 2021.

Governor Edmund G. Brown, Jr., appointed Justice O’Leary to the West Orange County Municipal Court on October 2, 1981. Governor George Deukmejian appointed her to the Orange County Superior Court five years later. In 1997, her colleagues elected her Presiding Judge of the Orange County Superior Court, making her the first woman in Orange County to hold that position. Her colleagues reelected her to that position two more times. Click here to read full story.

Frivolous writ = sanctions

The Fifth District sanctions counsel for a frivolous writ petition today here:

By way of its own motion, this court questioned whether petitioners should be sanctioned for filing a frivolous petition or filing a petition solely to cause delay and provided the opportunity for briefing. Reviewing the record, including petitioners’ responsive briefing and oral argument presented on September 28, 2021, we summarily deny the petition for writ of mandate and find sanctions are warranted.

The imposition of sanctions in this case is based on this petition being frivolous and filed solely to cause delay

As sanctions for bringing this frivolous petition, petitioners and petitioners’ counsel are jointly and severally liable to pay $6,965 to real party in interest’s counsel.

 

Happy First Monday!

The NLJ has Justices Return to Not-So-Normal Courtroom Arguments: 

• On the first day of the new U.S. Supreme Court term, the justices returned to the courtroom for regular business for the first time since March 2020, but there was nothing regular inside and outside of the pandemic-era courtroom.
• the hallways were vacant except for a few Supreme Court staff and police officers.
• as Chief Justice John Roberts Jr. gaveled an end to the October 2020 term and announced the opening of the October 2021 term, all of the justices, but one, were back on the bench in a sparsely populated courtroom
• There is a new seating order on the bench now that the justices are back. Barrett, as the newest justice, sits at the far right as you face the bench. Justice Brett Kavanaugh, who was the junior justice before her, moves to the far left end
• The only justice wearing a mask was Justice Sonia Sotomayor, who is diabetic. Kavanaugh, who tested positive for the virus Thursday, participated in the arguments from his home.

Judge Brazile considered for 2d DCA

LACBA’s State Appellate Judicial Evaluation Committee (SAJEC) is vetting Hon. Kevin Brazile, currently of the Los Angeles Superior Court, for potential appointment to the Second District Court of Appeal.  Anyone wishing to provide input on Judge Brazile’s qualifications is welcome to fill out the evaluation form linked below, or to contact committee chair Alana Rotter at arotter@gmsr.com.

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