Josh Groban selected for Supreme Court!

Governor Edmund G. Brown Jr. today announced Joshua Groban as his choice for associate justice of the California Supreme Court.
Joshua Groban, 45, of Los Angeles, has served as a senior advisor to Governor Edmund G. Brown Jr. since 2011.

“Josh Groban has vast knowledge of the law and sound and practical judgement,” said Governor Brown. “He’ll be a strong addition to California’s highest court.”

“Serving the people of California over the past 8 years has been the privilege of a lifetime,” said Groban. “I am truly humbled by this nomination and, if confirmed, I look forward to working alongside the highest court’s truly exemplary jurists.”

As senior advisor, Groban has overseen the appointment of approximately 600 judges throughout the state since 2011. These appointments have been lauded as the most diverse in the state’s history.

“Governor Jerry Brown has done it again, made a supreme appointment to the California Supreme Court. Josh Groban, a lawyer of extraordinary ability and insight, will bring scholarship, practicality, and respect for the rule of law to his decisions,” said Presiding Justice Arthur Gilbert of the Second District Court of Appeal, Division Six. “His appointment ensures that the California Supreme Court will continue to be the most respected state court in the nation. His appointment also reflects the diversity that makes our Supreme Court reflective of the society it serves. He will be the next Jewish justice after the late Justices Tobriner and Mosk.”

“I am delighted to learn of Governor Brown’s nomination of Joshua Groban as an associate justice of the California Supreme Court. Josh has served the Governor and the State of California well for 8 years seeking the best-qualified candidates for appointment to the bench,” said retired justice of the California Supreme Court, Justice Carlos R. Moreno. “He is a thoughtful and deliberative selection who will serve with distinction on our nation’s leading state supreme court. I’m also very pleased that the Governor has nominated someone with roots in Southern California who will add to the geographical balance on the Court.”

Groban has also advised the Governor in high-profile litigation and policy issues involving education, the judiciary, criminal justice, national security and constitutional interpretation.

Groban was legal counsel for the Jerry Brown for Governor Campaign in 2010. He was an attorney at Munger, Tolles and Olson LLP from 2005 to 2010 and at Paul, Weiss, Rifkind, Wharton and Garrison LLP from 1999 to 2005. Groban served as a law clerk for the Honorable William C. Conner at the U.S. District Court, Southern District of New York from 1998 to 1999.

“Josh’s sharp legal mind, even temperament and extensive track record of public service will make him a wonderful addition to the California Supreme Court,” said Munger, Tolles and Olson LLP name partner Ronald L. Olson. “We are proud of what he has accomplished. I am confident he will further distinguish himself and the Court as a jurist.”

“I have known Josh Groban for almost 20 years. In that time, I have watched Josh become an outstanding lawyer and public servant. He will now be an outstanding member of the California Supreme Court. I congratulate Governor Brown on this fine appointment,” said Paul, Weiss, Rifkind, Wharton and Garrison LLP partner and former U.S. Secretary of Homeland Security Jeh C. Johnson.

Groban has been a lecturer in state appellate practice at the University of California, Los Angeles School of Law since 2015. He earned a Juris Doctor degree from Harvard Law School, where he graduated cum laude and a Bachelor of Arts degree from Stanford University, where he graduated with honors and distinction.

“Joshua Groban is a superb choice for the California Supreme Court. For the past five years, alongside his myriad other responsibilities, he has taught our State Appellate Practice course at UCLA School of Law,” said Dean, UCLA School of Law Jennifer L. Mnookin. “He has been an extremely effective and well-regarded instructor, providing our students with powerful insights into appellate writing, argument and advocacy. Those same talents will be put to superb use in his new role, and I am confident that he will be an exceptional addition to the Court.”

He will fill the vacancy created by the retirement of Associate Justice Kathryn Mickle Werdegar. The Governor's nomination must be submitted to the State Bar's Commission on Judicial Nominees Evaluation and confirmed by the Commission on Judicial Appointments. The Commission on Judicial Appointments consists of Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and senior Presiding Justice of the state Court of Appeal J. Anthony Kline.


The compensation for this position is $253,189. Groban is a Democrat.

Cal Supreme Court stories

Today's DJ has Brown comes down to the wire in much-delayed state high court choice, The longest-running vacancy in state Supreme Court history has now passed 14 months. But now Gov. Jerry Brown really does face a deadline: on Jan. 7, Lt. Gov. Gavin Newsom will be sworn in to replace him.

“My guess, based on nothing other than the calendar, is that we’ll see an appointment before Thanksgiving,” said David S. Ettinger, of counsel at Horvitz & Levy LLP.

And today's MetNews has Retired Justice Werdegar Tells How It Was, How It Is 

Have you ever seen Cal.App.5th?

Avid readers will no doubt recall the excitement when Cal.App.5th and Cal.5th were announced. SCAN even pondered what color the series band would be on the hardbound volumes (here). (And yes, we posted on this back in March here. But with a new pic in hand, it seemed worth repeating.) These days few practitioners actually use real books, so many have never actually seen what a 5th Series volume looks like. Well, now you have! Note that the series band is gold, a color chosen to reflect California's moniker.

1 year, 7 months, 4 weeks, 2 days and counting...

That's how long it's been since Justice Werdegar announced her retirement.
As reported in Governor Brown's Still Mum on 14-Month Supreme Court  Vacancy, the Gov is still playing his cards close to the vest:

• "I find I never regret an appointment I didn't make," Brown said Wednesday.
• Asked if he was waiting for a potential appointment to finish a job or a term in office, Brown said, “I can’t give you anything, not even a scintilla, because it’s not your business.”

Can you file an anti-SLAPP motion in a limited jurisdiction case?

No, says this published opinion here:

No dice...

We conclude the restrictive language of section 92(d), which limits the type of motions to strike that may be brought in a limited civil case, precludes the filing of a special motion to strike in such a case.

[See the MetNews article Anti-SLAPP Motions May Not Be Filed in Limited Civil Cases]

Cal Supremes Year in Review

SCOCAblog has posted its SCOCA Year in Review 2018: Still Not the Brown Court, which crunches the data and draws the following conclusions:

• There is a voting record distinction between the senior justices and the justices appointed by Governor Brown;
• The pro tem justices do not vote in lockstep with the Chief Justice or the majority;
• Which governor appointed a pro tem justice does not correlate with pro tem voting;
• Justice Liu produces by far the most opinions;
• There is a disparity between how often the Brown appointees vote with the majority and how many majority opinions they write; and
• Productivity may not have dropped without seven permanent justices.

Justice Hoffstadt on burdens of proof

Today's DJ has Justice Hoffstadt's Go ahead then... prove it! about burdens of proof, how they are "not purely procedural" and "not as well settled as one might believe":

But what about intermediate
burdens of proof?

Burdens of proof are, at bottom, jurisprudential tie-breakers. They tell a trier of fact harboring some uncertainty how to decide the case. Burdens of proof necessarily have two components: (1) who bears the burden, and (2) what the burden is (a preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt). If we view a burden of proof as telling us, "The tie goes to 'X'", then "X" is the party not bearing the burden of proof, and a "tie" exists when the trier of fact is unsure if the applicable burden has been met.

Let's start at the very beginning!

Do Re Mi from the Sound of Music teaches us to "start at the very beginning," and that's precisely how this 9th Circuit opinion here starts:

Once upon a time, in a place now known as Montana, dinosaurs roamed the land. On a fateful day, some 66 million years ago, two such creatures, a 22-foot-long theropod and a 28-foot-long ceratopsian, engaged in mortal combat. While history has not recorded the circumstances surrounding this encounter, the remnants of these Cretaceous species, interlocked in combat, became entombed under a pile of sandstone. That was then . . . this is now.

[See in The Recorder, Nothing Like a Fight Over Dinosaur Bones to Put Things in Perspective: How often does a judge get to decide an issue of first impression from the Mesozoic Era? which begins: "This is possibly the best-ever start to a judicial opinion. Honestly, I don’t see how it could be improved"]

Proposed SCOTUS Rule changes

Proposed changes to the Rules of the U.S. Supreme Court are here--and appellate lawyers will not like the shorter word-limits.... See SCOTUS Advocates Grumble at Proposed Rules to Shorten Filings


The SCOTUS Press Release:

The Supreme Court of the United States today announced that it will entertain public comment on proposed revisions to its Rules. There are four substantive changes proposed. First, new language in Rules 14.1(b) and 15.2 would require parties to identify any trial and appellate court cases that are directly related to the case in this Court. This provision is designed to assist the Justices in determining whether their participation in a case before joining the Court might necessitate recusal. Second, an amendment to Rule 25.3 would require that a reply brief in a case scheduled for argument be received by the Clerk not later than 2 p.m. 10 days before the date of argument; the current rule requires that a reply be submitted seven days before argument. Third, amendments to Rules 29.1 and 29.2 make explicit that paper remains the official form of filing. And fourth, amendments to Rule 33(g) would reduce the number of words that are permitted for
merits briefs.

Comments must be received by November 30, 2018.
They should be submitted in writing to:
Clerk of the Court
Attn: Rules Committee
Supreme Court of the United States
1 First Street, N.E.
Washington, D.C. 20543

Appellate justices may solicit campaign endorsements from trial court judges

Committee Issues Campaigning Advice to Presiding Justices

Oral advice issued to a presiding justice seeking to solicit campaign endorsements on behalf of other justices facing retention elections.

November 05, 2018

The Supreme Court Committee on Judicial Ethics Opinions (CJEO) issued oral advice to a presiding justice intending to solicit campaign endorsements from trial court presiding judges within the appellate district on behalf of other appellate justices facing retention elections. The appellate presiding justice also intended to ask the trial court presiding judges to solicit all other judges on their courts to endorse the justices.
In CJEO Oral Advice Summary 2018-026, CJEO examined the campaign and political activity rules and the new canon amendment that permits judges to solicit campaign endorsements on behalf of other judges and attorneys who are candidates for judicial office. (Cal. Code Jud. Ethics, canon 5B(4).)
CJEO advised that an appellate justice may solicit campaign endorsements from trial court judges so long as the solicitation does not create a perception of coercion or cause doubts about judicial independence, integrity, or impartiality.
CJEO also advised that concerns about perceived coercion and judicial independence, integrity, and impartiality are compounded when a solicitation for campaign endorsements is made by a presiding judge, who holds a leadership role and has supervisory authority. Based on the requesting appellate presiding justice’s position and proposed mass solicitation, CJEO advised that there would be a perception of coercion and concerns regarding judicial independence, integrity, and impartiality that made the intended solicitation impermissible.
CJEO summarizes its oral advice and posts the summaries on the CJEO website for the benefit of the bench and public.
(See in the MetNews Ethics Opinion: Presiding Justice Seeking Judges' Support for Retention of Justices Raises Concerns.)

If you haven't voted yet, be sure to do so!

Today's DJ has PJ Gilbert's column, titled Limitations of Immortality, which concludes:

If you have not voted yet, tomorrow is your opportunity to vote and spread the word to vote for the Supreme Court and Court of Appeal justices on the ballot. They are the reason California has such an outstanding judiciary. And they are the last safeguard of our liberties and rights as citizens.

Also in today's DJ is the Moskovitz on Appeals column, titled Be Careful What You Wish For, about appellate dispositions.

• Given that California Courts of Appeal have written their draft opinions before oral argument, the argument itself can seem like Kabuki theater. Even at that late stage, though, many Justices have not made up their mind about the proper disposition. So a key use for oral argument is educating the panel about exactly how they should "deliver the goods."

• A good brief should make a Justice's life easier. Especially when an appeal involves a convoluted procedural posture, wise appellate counsel will guide the court to their ideal (and backup) outcomes. And that guidance should appear in the conclusion of the opening and responsive briefs.

CJEO issues opinion about pro tem justices

Committee Issues Disqualification and Disclosure Advice to Pro Tempore Appellate Justices

Oral advice issued to trial court judge invited to sit on assignment in an appellate matter.

The Supreme Court Committee on Judicial Ethics Opinions (CJEO) this month issued oral advice to a trial court judge invited to sit on assignment in an appellate matter.
In a summary of that advice posted on its website, the committee examined the differing disqualification and disclosure rules for trial court judges and appellate justices and concluded that the type of proceeding determines the governing rules.      
Applying those rules, CJEO concluded that the trial court judge would have no mandatory duty to disqualify or disclose the following: (1) reported campaign contributions from parties in the appellate proceeding, which were under the $5,000 limit requiring appellate justice disqualification (Cal. Code Jud. Ethics canon 3E(5)(j)); (2) contributions from a third party super PAC, which was not a party to the appellate proceedings; or (3) the judge’s membership in an organization devoted to the law, the legal system, and the administration of justice.
However, CJEO also advised that as an appellate justice pro tempore, the judge must use his or her discretion to disqualify in the assigned matter if a reasonable person aware of the facts might doubt impartiality (canon 3E(4)(c). Even if campaign contributions are below the threshold for mandatory disqualification for an appellate justice, the judge should consider whether a reasonable person aware of those contributions through publicly available FPPC filings, or any other circumstances related to the campaign or memberships, would doubt the judge’s impartiality in the appellate matter.

Justice Mensch

At last night's OCBA Sills Award for Appellate Excellence ceremony, Dean Chemerinsky summed it all up by saying that if you look up mensch in a dictionary, you should see a photo of Justice Fybel.

MENSCH Yiddish: מענטש‎ mentsh: A particularly good person, full of integrity and honor, with the noble qualities one would hope for in a dear friend or trusted colleague; a gentleman. Someone like Justice Fybel.

What IS a "respondent"?

"I am SO a respondent!"

Appellate Sanctions Watch! Assume that plaintiff files and serves a complaint on defendants, but defendants never appear. Further assume that the trial court dismisses the complaint for some reason and enters a judgment favoring defendants. If plaintiff appeals, can defendants file a brief? As this case here makes clear, the answer is a resounding yes. The prevailing defendants are respondents as a matter of law and entitled (indeed, required) to file a brief on appeal. CRC 8.10, 8.200(a)(2). Indeed, plaintiff's motion to strike defendant's appellate brief is frivolous -- and deserving of sanctions of $2700. So there.

RIP Bill Hancock (from CALG)

In Memoriam: Bill Hancock

It is with great sadness that we announce the passing of Bill Hancock, a founder of the California Appellate Law Group and a widely admired member of the California appellate bar.
Bill spent 16 years as senior research attorney in the California Courts of Appeal for the First and Sixth Appellate Districts, where he worked with a range of judges and analyzed hundreds of appeals under state law and procedure. He was also a founding staff member of the First District Appellate Project in San Francisco. After his tenure with the court, Bill became of counsel to the appellate firm Horvitz & Levy. He opened his own appellate practice in 2004, and co-founded the appellate boutique Eisenberg & Hancock LLP in 2006, where he was managing partner. In 2012, he founded the California Appellate Law Group with Ben Feuer and served as the firm’s first managing principal.
Bill was widely recognized for his appellate skill. He was named a “SuperLawyer” and a “Best Lawyer in America” every year for nearly a decade. Recently, Bill played an important role in CALG’s success in protecting Californians’ public access to beaches. He graduated from UC Hastings College of the Law with Order of the Coif and Thurston Society honors, and was a UC Santa Cruz “Banana Slug” before that, also with honors.
Bill will be remembered with deep fondness not only by the members of the California Appellate Law Group and lawyers throughout California, but also by his wife Jessica, his daughter Justine, his brother Tom, and his sisters Kim and Jane.

CJA hearings set for 11/26

Commission on Judicial Appointments to Consider Five Appointments to Courts of Appeal

Commission hearings set for November 26 in San Francisco.

SAN FRANCISCO—Five public hearings have been scheduled by the Commission on Judicial Appointments for November 26, beginning at 9 a.m. in the Supreme Court Courtroom—350 McAllister Street in San Francisco—to consider the following appointments by Governor Edmund G. Brown, Jr.:
(Scheduled times are approximate)

9-9:30 a.m.:   Justice Stuart Pollak, as Presiding Justice of the Court of Appeal, First Appellate District, Division Four (San Francisco)
9:45-10:15 a.m.:   Gabriel Sanchez, as Associate Justice of the Court of Appeal, First Appellate District, Division One (San Francisco)
10:30-11:00 a.m.:   Carin Fujisaki, as Associate Justice of the Court of Appeal, First Appellate District, Division Three (San Francisco)
11:15 to 11:45 a.m.:   Peter Krause, as Associate Justice of the Court of Appeal, Third Appellate District (Sacramento)
Noon to 12:30 p.m.:   Frank Menetrez, as Associate Justice of the Court of Appeal, Fourth Appellate District, Division Two (Riverside)

The hearings will be webcast live here.
The state Constitution specifies that a gubernatorial nomination or appointment to the Supreme Court or a Court of Appeal is “effective when confirmed by the Commission on Judicial Appointments.”
The commission consists of the chief justice of California, the attorney general of California, and the presiding justice of the Court of Appeal of the affected district or, if there are two or more presiding justices, the one who has presided longest or, for a nomination or appointment to the Supreme Court, the presiding justice who has presided the longest on any Court of Appeal.
Appointee Biographies
Justice Stuart R. Pollak would fill the vacancy created by the retirement of Presiding Justice Ignazio J. Ruvolo. Pollak has served as an associate justice in Division Three of the First District Court of Appeal since 2002. He served as a judge at the San Francisco County Superior Court from 1982 to 2002 and held several positions at Howard, Rice, Nemerovski, Canady and Pollak from 1965 to 1982, including partner and associate. He served as an attorney at the U.S. Department of Justice from 1963 to 1966 and served as a law clerk for the Honorable Earl Warren, the Honorable Stanley Reed and the Honorable Harold Burton at the U.S. Supreme Court from 1962 to 1963. Pollak earned a Juris Doctor degree from Harvard Law School and a Bachelor of Arts degree from Stanford University.
Gabriel P. Sanchez would fill the vacancy created by the retirement of Justice Robert L. Dondero effective October 31, 2018. Sanchez has served as a deputy legal affairs secretary in the Office of Governor Edmund G. Brown Jr. since 2012. He served as a deputy attorney general at the California Department of Justice, Office of the Attorney General from 2011 to 2012 and was an associate at Munger, Tolles and Olson LLP from 2006 to 2011. Sanchez served as a law clerk for the Honorable Richard A. Paez at the U.S. Court of Appeals, Ninth Circuit from 2005 to 2006. He earned a Juris Doctor degree from Yale Law School, a Master of Philosophy degree from the University of Cambridge and a Bachelor of Arts degree from Yale College.
Carin T. Fujisaki would fill the vacancy created by the elevation of Justice Peter J. Siggins to presiding justice, Division Three of the First District Court of Appeal. Fujisaki has served as principal attorney to the chief justice at the California Supreme Court since 2015, where she was a judicial staff attorney from 1991 to 2014 and a staff attorney from 1990 to 1991. She was an associate at Howard, Rice, Nemerovski, Canady, Robertson and Falk from 1986 to 1990 and a research attorney at the San Francisco County Superior Court from 1985 to 1986. Fujisaki earned a Juris Doctor degree from the University of California, Hastings College of the Law and a Bachelor of Arts degree from the University of California, Los Angeles.
Peter A. Krause would fill the vacancy created by the retirement of Justice George W. Nicholson. Krause has served as legal affairs secretary in the Office of Governor Edmund G. Brown Jr. since 2014, where he was chief deputy legal affairs secretary from 2013 to 2014. He served in several positions at the California Department of Justice, Office of the Attorney General from 2007 to 2013, including supervising deputy attorney general and deputy attorney general. Krause was an attorney at the Judicial Council of California, Office of the General Counsel from 2005 to 2007 and an associate at Sheppard, Mullin, Richter and Hampton from 1996 to 2005. He earned a Juris Doctor degree from Loyola Law School, Los Angeles and a Bachelor of Arts degree from the University of California, Berkeley.
Frank J. Menetrez would fill the vacancy of a new position created on July 1, 2018. Menetrez has served as a judge at the Los Angeles County Superior Court since 2015. He served as an appellate judicial attorney at the Second District Court of Appeal from 2005 to 2015. He was an associate at Horvitz and Levy from 2004 to 2005 and at Sidley Austin from 2001 to 2004. Menetrez served as a law clerk for the Honorable A. Wallace Tashima at the U.S. Court of Appeals, Ninth Circuit from 2000 to 2001. He earned a Juris Doctor degree from the University of California, Los Angeles School of Law, Doctor of Philosophy and Master of Arts degrees from the University of California, Los Angeles and a Bachelor of Arts degree from Johns Hopkins University.
Testimony and Comment
Persons who wish to testify or comment on the appointments must submit their information for receipt by the commission no later than 5 p.m. on November 19.
Anyone wishing to testify before the commission must state that request in writing and include a summary of the facts on which any testimony or opinion will be based.
The commission’s address is:
Commission on Judicial Appointments
c/o Chief Justice of California
Supreme Court of California
350 McAllister Street
San Francisco, California 94102
Attention: Secretary to the Commission
The guidelines for the Commission on Judicial Appointments are published as an appendix to the California Rules of Court and are available on the California Courts website.

9th Circuit Practice Update!

Filers of emergency motions can now provide notice to the court via email rather than phone call

 

Per Circuit Rule 27-3, if a movant needs relief in less than 21 days to avoid irreparable harm, the movant must notify the court. Starting on Monday, October 29, 2018, filers can either call 415.355.8020 and leave a voicemail or send an email to emergency@ca9.uscourts.gov. 

Notice to the court should include at a minimum:

o Your case number (if you have one)

o Your name and contact info, including best phone number
o Date that relief is needed
o Date that emergency motion will be filed

 

Ideally, notice would also include:

o Description of the harm that will occur absent relief 

o Explanation of why the harm irreparable
o Opposing counsel’s name and contact info, including best phone number

 

If you leave a voicemail or send an email during business hours, the court will let you know promptly if further information about your emergency motion is needed.