J.VanDyke's 'vulgar' dissent

Articles about Judge VanDyke's dissent continue unabated. The DJ has 9th Circuit judges rebuke their colleague over 'vulgar' dissent -- Twenty-seven judges say the opinion's language "makes us sound like juveniles, not judges" in dispute over transgender access to Korean spa. Judge Lawrence VanDyke agreed but said the language was necessary because the court's majority opinion avoided what the case was about.

• VanDyke already faced criticism for a YouTube video dissent in a Second Amendment case challenging California's ban on large-capacity magazines, in which he filmed himself handling several handguns to explain their mechanics. Duncan v. Bonta, 133 F.4th 852, 872 (9th Cir. 2025)
• In another case, VanDyke wrote a sarcastic solo dissent to a habeas petition accusing Senior Judge William A. Fletcher of inserting "binding dicta" and embarking on a "bizarre and gratuitous frolic."

Sanctions dodged

Counsel admonished, but not sanctioned (by 2/4) in this unpub: 

The court may impose sanctions, as relevant here, for taking a frivolous appeal or appealing solely to cause delay or for “committing any other unreasonable violation” of the California Rules of Court. (Cal. Rules of Court, rule 8.276(a)(1), (4).) It is undisputed that the Staubers’ opening brief violated rule 8.204(a)(1)(C), as it failed to “support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” Rather than proper citations to the clerk’s or reporter’s transcripts, the Staubers cited to lines in their Notice of Designation of Record, confusingly designated as “AA” and “RA.”’ The brief contained no explanation of this designation, and none of the citations included a specific page number.

We issued an order to show cause and the Staubers filed a response, explaining that they did not receive the clerk’s transcript in time to cite to it in their opening brief. The Staubers also did not seek to re-file their opening brief with correct citations once they received the record or after plaintiff raised an objection. While this conduct was certainly ill-advised and in clear violation of the rules, resulting in extra work for both the court and plaintiff’s counsel, we do not find it so egregious as to justify sanctions. (See Huschke v. Slater (2008) 168 Cal. App. 4th 1153, 1162 [“not every violation of a procedural rule is properly sanctionable”].)

We agree with plaintiff that the Staubers violated the court rules and principles of appellate review by failing to provide “a summary of significant facts” in their opening brief. [] The Staubers’ response during oral argument that a more fulsome discussion of the evidence was not needed because they challenged the validity of the contracts is not well-taken. The Staubers raised multiple substantial evidence arguments on appeal and were therefore required to provide a complete summary of the relevant evidence. We admonish them, and their counsel, for failing to do so. However, we do not find that arguments raised were frivolous and we decline to impose sanctions under these circumstances.

SCOTUS rules update article

Law360 has What To Know About Supreme Court's New Recusal Rules

• First, the court revised various existing disclosure rules to provide that parties must now provide the stock ticker symbols of parties involved in the case.
• Second, the rules now impose additional duties on respondents to supplement disclosures of involved parties at both the certiorari stage and the merits stage. In a brief in opposition to certiorari, the respondent is newly required to "identify any parties to the proceeding that were not identified in the petition" — "along with their respective stock ticker symbols."
• Third, in a change that does not relate directly to recusals, but does reflect the court's increasing embrace of technology, the court will now consider a document timely filed if it is filed electronically on the filing deadline — in contrast to the previous rule, which tied timeliness to paper filings.

Dissent at the 9th Cir.

Read The Volokh Conspiracy's post about the Olympus Spa opinions titled: Judge VanDyke: "This is a case about swinging dicks." The post excerpts the key passages from the various opinions.

• Before: McKEOWN, GOULD, and LEE, Circuit Judges. Opinion by Judge MCKEOWN
• Dissent by Judge LEE
• Statement Respecting the Denial of Rehearing En Banc by Judge MCKEOWN
• Additional Statement Respecting the Denial of Rehearing En Banc by Judge MCKEOWN
• Statement Respecting the Denial of Rehearing En Banc by Judge OWENS
• Dissent from Denial of Rehearing En Banc by Judge VANDYKE
• Dissent from Denial of Rehearing En Banc by Judge TUNG
• Dissent from Denial of Rehearing En Banc by Judge COLLINS

Law360 has Full 9th Circ. Deeply Divided On Rehearing TPS Vacatur

Professor Martin is rendered effectively speechless: His post on this is simply "OMG."

Law360 has 'Swinging Dicks' Dissent Stirs Uproar Across 9th Circ. Bench

Bloomberg law has VanDyke Uses Crude Phrase in Case Over Spa’s Transgender Policy

The NYT has We Have Reached End-Stage Polarization

Bloomberg law has Manatt Hires San Diego Appeals Lawyer From US Attorney’s Office -- Zach Howe joined Manatt, Phelps & Phillips as a partner in its San Diego office, the firm announced Thursday. Howe joins from the US Attorney’s Office for the Southern District of California. He will draw on his appellate and trial experience to help build and expand the firm’s appellate capabilities

And Oldest Active Federal Judge Asks Supreme Court for Her Job Back

1st DCA pro tem update

Judge Ann Moorman of the Mendocino County Superior Court will be sitting pro tempore in Division Four until March 31, 2026.

JCC Celebrates 100 years!

 The Judicial Council celebrates its centennial this year! Details here.

"Supreme Court Advocacy Project"

Law360 has  Judiciary Approves Supreme Court Public Defender Office -- The federal judiciary approved a new office Tuesday aimed at improving the quality of representation for indigent defendants with cases in front of the U.S. Supreme Court. 

The Judicial Conference of the United States, the federal judiciary's policymaking body, authorized the creation of the Supreme Court Advocacy Project during its biannual meeting Tuesday, Geremy Kamens, the federal public defender for the Eastern District of Virginia, told Law360. The project, which will initially be supported by Kamens' office, will eventually become its own entity that will provide resources and training materials for public defenders and court-appointed attorneys representing clients before the high court. ....

About 25 years ago, Kamens and other appellate lawyers and public defenders realized there was a need for a support structure for defense attorneys seeking Supreme Court review, so they developed the all-volunteer organization Defender Supreme Court Resource and Assistance Panel, which would reach out to attorneys in cases where the justices had granted certiorari and help them prepare for oral arguments by running moot courts and providing litigation assistance.

The project announced Tuesday, also known as SCAP, is a more formalized version of the volunteer organization, Kamens said.

Law360 also has Dems Confront Roberts At Wide-Ranging Judiciary Gathering

The federal judiciary's top administrator voiced "serious and urgent concerns" Tuesday regarding threats of retribution against judges, a warning that coincided with a judicial gathering where Democrats discussed security fears and controversial U.S. Supreme Court rulings.

Cautionary note re advocacy

This unpub from 4/3 today denies a motion for appellate sanctions, but contains a cautionary note:

we caution appellate counsel not to overstate or misrepresent the record under the cloak of effective advocacy because it, at the very least, violates court rules. (See Cal. Rules of Court, rule 8.204(a)(1)(C).)

Appellate sanctions were denied by 2/2 in an unpub today here. Do there seem to be more sanctions motions these days?

U.S. Courts has issued a press release discussing the plan to replace the aging CM/ECF system in district, appellate, and bankruptcy courts: Judges Outline Accelerated Modernization of Case Management System:

The new system will replace the Case Management/Electronic Case Files system (CM/ECF) that the courts have relied on for nearly three decades to manage heavy caseloads and carry out court operations. It is used by litigants to file cases and related documents, and it provides the public with access to over 1 billion court records.

It is anticipated that the district courts will be the first to start implementing aspects of the new case management system within the next year, followed by appellate and bankruptcy courts. The timeline for completion is two to three years sooner than originally expected.

Traynor 2026 winners!

The 57th Annual Roger J. Traynor California Moot Court Competition took place by Zoom this weekend and the winner was Berkeley. Ten law schools sent teams this year; 13 members of the bench and bar served as judges, not including the 3 justices for the final round: Justices Bendix, Stratton and Perren (ret.). More details here.

Beds on communication & reading the room

Retired Justice Bedsworth's latest column is out: Bedsworth: Listening to Old Folks -- I find that the less people know about me, the more willing they are to listen to me. Mostly these are law students or young lawyers. I encourage them to work hard on their communication skills with old people because they're going to spend much of their career trying to communicate with old people.

This is a lesson I learned in my first months on the Court of Appeal: Don't just do what you'd planned; pay attention and do what the situation calls for.

Congrats to Kent Richland, ALHOF!

CLA has announced that the 2026 inductee to the Appellate Lawyer Hall of Fame (ALHOF) will be Kent Richland, founding partner and currently partner emeritus of Greines, Martin, Stein & Richland LLP. The award will be bestowed on Thursday evening, May 14 at the CLA Appellate Summit in San Francisco (May 14-15).

Kent Richland has been an appellate lawyer since he graduated from UCLA Law School in 1971. In 1983, Kent was one of the founding partners of Greines, Martin, Stein & Richland LLP. Kent has been lead appellate counsel in hundreds of appeals. He has argued in state and federal appellate courts across the country, including many high-profile cases in both the California Supreme Court and the United States Supreme Court. He gained national prominence in 2006 for his United States Supreme Court argument in Marshall v. Marshall, in which he successfully represented the late Anna Nicole Smith.

Kent is a frequent lecturer and author on appellate law topics and is co-author, with Presiding Justice J. Anthony Kline of the California Court of Appeal, of West’s California Litigation Forms B Civil Appeals and Writs. He has served as president of the California Academy of Appellate Lawyers and multiple terms as president of the California Supreme Court Historical Society. He was selected as a Fellow of the American Academy of Appellate Lawyers, the American Bar Foundation and the Litigation Counsel of America.

Among the honors he has received are the California Lawyer Magazine’s California Lawyer of the Year (CLAY) award in 2007, 2011 and 2019, Best Lawyers®’ Los Angeles Appellate Lawyer of the Year Award in 2015, multiple years’ recognition by the Los Angeles Daily Journal as one of the top 100 lawyers in California, multiple years’ recognition as one of the top 100 Southern California Super Lawyers and recognition by Chambers USA as one of five “Band One” appellate lawyers in California.

Stare decisis amicus brief

Law.com has Nearly 200 Ex-Judges Tell Supreme Court: Your Unreasoned Emergency Orders Are Not Binding -- More than 175 former federal and state judges signed an amicus brief responding to the Trump administration's argument that lower courts are "flouting" the Supreme Court's unexplained emergency orders.

The notion that lower courts must treat the Supreme Court's orders on its emergency docket as binding precedent is fairly new and not universally accepted. Often, these orders are issued on tight timelines, or as Justice Amy Coney Barrett once put it, “on a short fuse without benefit of full briefing and oral argument.”

Only recently has the Supreme Court indicated that an emergency order "squarely controlled" the outcome of another case. "Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases," the court wrote in July 2025.

The following month, Justice Neil Gorsuch made headlines by suggesting that district courts were defying the court's emergency orders. "Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them," he wrote in a partial concurrence joined by Justice Brett Kavanaugh in August 2025.

On Thursday, the former judges told the Supreme Court that such unexplained orders should not be considered "binding" on other district courts in different cases.

"Dead data walking"

Justice Raphael's latest in the DJ is titled Dead data walking about how a certain statistic is repeated in "dozens of California opinions." But are courts using this statistic, and facts asserted in opinions generally, correctly? The specific statistic at issue (about how many armed robberies result in death) "originated in a 44-year old" SCOTUS opinion. But there are at least three major problems with this statistic and its use--the most obvious being that stats like this change over time.

the use of this statistic can provoke thoughts about reliance upon empirical data in appellate cases. When an appellate court cites a statistic in a published opinion, that statistic becomes fair game for lawyers and judges to repeat indefinitely. Challenging such a statistic takes work and requires extra-record analysis, which may be impermissible or methodologically unreliable. Law professor Allison Orr Larsen has written on the general subject. In Factual Precedents, 162 U.Penn.L.Rev. 59 (2013), she discussed situations where the United States Supreme Court has cited facts, including statistics, that lower courts then relied on without further analysis. See, e.g., id. at 62 (statistic that a quarter of carpal tunnel cases resolve within a month without intervention). She has explored how factual assertions in Supreme Court opinions could be mistaken or one-sided. Larsen, Confronting Supreme Court Fact Finding, 98 Va.L.Rev. 1255 (2012).

And from dead data to a dead appeal, Law360 has Atty's Scheduling Error Dooms Appeal In AT&T Forfeiture Suit

And check out this decision re appellate sanctions for a frivolous appeal from 2/5.

Because this appeal is both objectively and subjectively frivolous, we exercise our authority to impose sanctions on husband and his attorneys, jointly and severally. ....

In addition to her costs on appeal, wife shall be awarded reasonable fees and costs, in an amount to be determined by the family court, against husband and his attorneys, jointly and severally. Husband’s attorneys and the clerk of this court are each ordered to forward a copy of this court’s opinion to the State Bar upon issuance of the remittitur.

On the AI sanctions front, don't miss this published one from 4/1 here. The MetNews story is C.A. Imposes $1,500 Sanction for Citing Fake Cases -- Then-Court Commissioner, Opposing Counsel Faulted for Not Noticing Fakery

The DJ's story is Commissioner, now judge, approved order with fake AI case citations

Who wants a drink?

This month's Exceptionally Appealing column (appearing the 1st Monday of the month in the DJ) is The Appellate Bar-tender - which "playfully maps appellate law practice to cocktail mixology, using creative drink recipes--each inspired by motions, petitions, or court rulings--to humorously illustrate the challenges, rituals and personalities of appellate advocacy while celebrating the wit and culture of the appellate bar."

What are appellate cocktails? The article provides numerous examples, some based on color (e.g., green for the AOB) some based on puns (the Reversal is a classic cocktail called a flip) some mixing cocktail names with appellate jargon:

The French 918 - Why stop at 75 (gin) or 76 (vodka) when you can go all the way up to 918? Combine Citadelle Gin (from the Cognac region), lemon juice, simple syrup, and champagne, served chilled in a flute and garnished with a lemon twist. This apertivo is a great way to start things off, and ensures your guests will stay (at least temporarily; see Code Civ. Proc. § 918). Best to follow with a bonded whiskey, perhaps Benchmark Bonded, a Kentucky Straight Bourbon Whiskey from Buffalo Trace.

The Limited En Banc - Approach the stocked bar blindfolded; grab 11 random bottles; combine splashes from each and stir vigorously; then shake violently. Serve in a coupe. Attempt to drink while doing jumping jacks. Pray that something good comes out.

3d Dist. Mediation Program 2026 Training - Extension of application deadline
The Court of Appeal, Third Appellate District, is pleased to announce that it is again recruiting attorneys and retired judges to join its mediator panel. Attorneys and retired judges throughout the 23 counties served by the Third District Court of Appeal are encouraged to apply. The appellate mediator training course is limited to 24 participants and provided at no cost to the participants. The mediator training will be conducted at the Judicial Council of California located at 2850 Gateway Oaks Drive, Sacramento, CA 95833. Click here to access the announcement regarding the 2026 mediator training. The time for submitting an application to join the mediator training has been extended to March 20, 2026. The application can be found on the Court's Mediation Program page.

2d District pro tem update

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

• Justice Arthur Gilbert (Retired) of the Second District Court of Appeal will be sitting Pro Tem in Division Two through March 31, 2026
• Judge Syda K. Cogliati of the Santa Cruz County Superior Court will be sitting Pro Tem in Division Four from March 23, 2026, through May 22, 2026
• Judge Sanjay Kumar (Retired) of the Los Angeles County Superior Court will be sitting Pro Tem in Division Five through April 20, 2026
• Judge Von T. Nguyen Deroian of the Santa Barbara County Superior Court will be sitting Pro Tem in Division Six through March 31, 2026
• Judge Alexander C.D. Giza of the Los Angeles County Superior Court will be sitting Pro Tem in Division Seven through March 31, 2026

SCOC productivity and more in the DJ

Friday's DJ had John Roemer's  The Doghouse Report: The incredible shrinking Supreme Court about the "low productivity" of the California Supreme Court.

Retired PJ Gilbert's March DJ column is What's in a name? -- Names--whether of institutions, leaders, or individuals--carry lasting influence on reputation, authority and personal identity.

And Myron Moskovitz's column is 'Will AI replae me?' Let's ask AI.

here's how I phrased my query to ChatGPT: "Will AI ever do a better job of writing appellate briefs and arguing appeals than experienced appellate lawyers?" ChatGPT provided a long, detailed answer (quickly!): "Yeah--eventually, in a lot of narrow ways, AI will do parts of appellate work better than most humans. But the full 'better appellate lawyer than the best appellate lawyers' thing is a much harder, messier, slower target. Think of it like this: appellate law is one of the most AI-friendly areas of legal practice and one of the most human-dependent at the same time."

ChatGPT says: "Most appeals are lost because the lawyer picks the wrong hill to die on. AI can list ten issues. A great appellate lawyer knows the one that matters. That's not pattern recognition--it's strategy."

 

 

And see LACBA Condemns Personal Attacks on Supreme Court Justices and Affirming Judicial Independence
And see American Bar Association statement on personal attacks against Supreme Court justices

Judicial writing articles

Yale Law Prof. Justin Driver has "The Insignificance of Judicial Opinions" in 113 Cal. Law Review 2181 (2026).  Also on judicial writing, see "The Situation: Horsefeathers! - A federal judge with a unique style in punctuation" about the (over)use(?) of exclamation points by Judge Leon (U.S.D.C. D.C.).

Also, Justice KBJ was in Malibu at Pepperdine's Caruso Law School last month, as reported here.

Mock Trial judges needed in Oakland

Teach Democracy (the nonprofit behind the Appellate Court Experience program) needs volunteer judges for its Mock Trial program in Oakland on March 20-22. Info here.

AI sanctions coming?

Law360 reports Boies Schiller Partner Faces Possible Sanctions For AI Errors about Bixler v. Church of Scientology pending in 2/5 with argument set for March 3 at 9 a.m. See Notice of Potential Sanctions.

Law360 also reports Attys Regret Unnoticed ChatGPT Errors In Conn. Court Filings -- Attorneys ordered to explain errors in two January Connecticut Supreme Court briefs said ChatGPT altered legal arguments that counsel did not notice when they asked the artificial intelligence software to help limit duplicate passages, meet word count rules and format the filings.

J.Alito article / Goldstein convicted

On Bloomberg Law, David Lat has Justice Samuel Alito Won’t Hang Up His Robes Anytime Soon, which begins:

On Jan. 31, Justice Samuel Alito celebrated his 20th anniversary as an associate justice of the US Supreme Court.
On April 1, he’ll turn 76.
On Oct. 6, he’ll release his first book, “So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country.”

Bloomberg Law has Goldstein Convicted on 12 of 16 Criminal Counts After Trial -- Poker-playing former US Supreme Court litigator Tom Goldstein has been found guilty of 12 of 16 counts following a six week trial in Maryland.