Appellate tidbits

Today's DJ has James Wagstaffe's article The High Court is upending decades of settled law -- The Supreme Court is increasingly willing to hear cases that overturn long-established precedents, reshaping constitutional and legal norms with little warning.

At bottom, therefore, we are living in an age where courts often take up cases aimed at reversing decades or more of established law when in earlier times it would simply be unthinkable even to hear such a challenge.

Bloomberg Law has Judicial Conduct Panel Denies Newman’s Reinstatement Bid -- A panel of seven appellate and district court judges rejected Judge Pauline Newman’s effort to regain her position on the Federal Circuit, where the 98-year-old jurist was suspended by her colleagues.

The judge has been fighting her suspension on two tracks. Administratively, the conference’s Committee on Judicial Conduct and Disability reviews disciplinary decisions by judicial councils for the 12 federal appellate courts. And in the courts, she petitioned the US Supreme Court to hear her case in mid March.

Law360 has Judicial Conference Backs Latest Judge Newman Suspension

Law360 also has 5 Takeaways From California's 2026 State Of The Judiciary

And law week Law360 had Chief Justice Says Personal Attacks On Judges 'Got To Stop'

Law.com has Preparing for the Universe at Oral Argument by David Fine, head of the appellate practice at K&L Gates. His headings are: Preparing to Concede; Having Key Points at My Fingertips; Arriving at the Argument Bullet Points; Compiling the Binder; Testing the Argument; Lining Up for Final Approach; Cringing for Good Cause

And here's an unpub from 4/3 about a motion to tax appellate costs -- you don't see many cases addressing this issue!

RIP J. Wiener (1931-2026)

In Memoriam: Associate Justice Howard B. Wiener
Former Associate Justice of the Fourth District Court of Appeal, Division One, Howard B. Wiener passed on March 20, 2026.

Former Associate Justice Howard B. Wiener of the Fourth District Court of Appeal, Division One, passed away on March 20, 2026. Justice Wiener was born in Providence, Rhode Island on February 1, 1931, attending public schools there. He graduated from Brown University in 1952 with a bachelor of arts degree in philosophy. Three years later, he obtained his law degree from Harvard University Law School.

Following graduation from law school, Justice Wiener and his wife Joan moved to California, where he served as a law clerk to U.S. District Court Judge Benjamin Harrison in Los Angeles from 1955 to 1956. He was admitted to the California Bar in January 1956. During the next 20 years, he practiced law in a small firm in West Covina, handling all types of cases. He was also active in the legal community, serving as President of the Pomona Valley Bar Association in 1968, on the Board of Trustees of the Los Angeles County Bar Association from 1969 to 1971, and on the State Bar Board of Governors from 1972 to 1975 (Vice President, 1974-1975).

On July 25, 1975, Governor Edmund G. Brown, Jr. appointed him to the San Bernardino County Superior Court. Roughly three years later in May 1978, the Governor selected him to be an Associate Justice on Division One of the Court of Appeal, Fourth Appellate District in San Diego. Over the next 15 years, Justice Wiener became known for clear and thoughtful opinions that adapted and applied legal principles to compassionately serve the interests of people from all walks of life.

Despite practicing law in Los Angeles and the Inland Empire, Justice Wiener quickly became active in the San Diego legal community, serving as President of the William B. Enright American Inn of Court from 1991 to 1993 and later as one of its four distinguished emeritus members. In 2018 he was honored by all five San Diego Inn of Court chapters with the second-ever lifetime achievement award. A vocal advocate for education at every level and a mentor for many younger lawyers, Justice Wiener was an adjunct professor at the University of San Diego (USD) School of Law (1979-1986) and California Western School of Law (1986-1994), teaching professional responsibility and appellate advocacy respectively. He also served as Chair of the Board of Visitors at USD Law School. In 1982 he obtained a Master of Laws Degree in judicial process from the University of Virginia Law School.

Justice Wiener retired from the Court on December 31, 1993. Beginning in 1994, he was actively engaged in private dispute resolution, serving in more than 1,700 cases as a mediator, arbitrator and private judge. He is co-author with Jon B. Eisenberg and Ellis J. Horvitz of the California Civil Practice Guide, Civil Appeals and Writs, published by The Rutter Group. In 2007, he was interviewed for the California Appellate Courts Legacy Project. The interview is available at California Appellate Court Legacy Project | District Courts of Appeal. Justice Wiener was preceded by his wife Joan, and is survived by his son Daniel, daughters Anne and Carrie, five grandchildren, and nine great-grandchildren.

CA appellate vacancies article

Last Friday's Recorder had With All Eyes on California's Supreme Court Vacancy, 2 Appellate Seats Go Unfilled for Years -- Gov. Gavin Newsom's office won't say if he's waiting to fill vacancies on the the state's San Francisco and Sacramento courts of appeal with administration lawyers.

For more than five months, California’s judiciary has waited for Gov. Gavin Newsom to make what will likely be the last Supreme Court justice appointment of his administration.

But beyond the political parlor game of who the probable 2028 presidential candidate will pick for the high court and why, Newsom has left two other important judicial vacancies sit unfilled for years with no clear explanation why.

Division Four of the First District Court of Appeal in San Francisco has been without a fourth confirmed justice since Tracie Brown was elevated from associate justice to divisional presiding justice in April 2023. Similarly, the associate justice seat Laurie Earl vacated when she became presiding justice of the Third District Court of Appeal in July 2023 remains empty.

AI Sanctions & Warnings! $10K in Oregon for bad AOB

Law360 has Ore. Atty Sanctioned $10K For Brief With Fabricated Citations

An Oregon appellate court has ordered an attorney to pay $10,000 for filing an opening brief containing fabricated case citations, quotations that "do not exist anywhere in Oregon case law" and other inaccuracies, according to an opinion. -- The case is Henry Doiban et al. v. Oregon Liquor and Cannabis Commission, case number A181982, in the Court of Appeals of the State of Oregon.

And here in California, don't miss Sheerer v. Panas published by 1/4:

As an in propria persona litigant, Panas submitted a respondent’s brief that attributes quotes to published cases in which no such quote appears and to cases that do not exist, and Panas’s nonmanufactured authorities do not discuss the topics for which they are cited. His brief also does not conform to the California Rules of Court (hereinafter Rules) regarding its contents, formatting, and directive to provide support for factual assertions with citations to the record. (See Rule 8.204.) In a declaration submitted to this court, Panas explained the fabrications were due to his use of a generative artificial intelligence (AI) tool to write the brief. ....

We partially publish this opinion to extend that warning to in propria persona litigants.

MetNews article is Pro Pers Are Held to Same Standard as Lawyers in Using AI

Law360 has Where Calif. State Courts Landed On Generative AI Use Rules. This article has a nifty interactive map showing what each county has done. 

SD State of the Appellate Courts (4/6)

The Appellate Practice Section of the SDCBA and the San Diego Appellate Inn of Court are jointly presenting the Annual State of the Appellate Courts on Monday, April 6, 2026, from 5:00 – 7:00 p.m. at the SDCBA Bar Center, 330 A Street, San Diego, CA 92101.
This signature annual program will feature two distinguished Inn members:

• Administrative Presiding Justice Judith McConnell, California Court of Appeal, Fourth Appellate District
• Senior Circuit Judge M. Margaret McKeown, U.S. Court of Appeals for the Ninth Circuit

Together, they will share invaluable insights on case filing trends, court operations, and key developments shaping appellate practice in both the California Court of Appeal and the Ninth Circuit.
1.0 CLE credit is available, including Appellate Specialization credit, at very low cost — provided by the San Diego Appellate Inn of Court. Questions can be submitted for consideration by emailing Pauline Villanueva at pev@adi-sandiego.com by April 1, 2026.
Following the program, the evening continues with the Appellate Judicial Reception, a wonderful opportunity to connect with colleagues and spend time with members of the appellate bench. This event is sponsored by Complex Appellate Litigation Group.
Register here.

RIP Bob Gerstein

Appellate lawyer Robert S. Gerstein has passed. Bob was a member of the American and California Academies of Appellate Lawyers (he was CAAL's 27th President) and was active for decades in the LA County Bar's Appellate Courts Committee/Section. He graduated from Harvard Law School in 1964 and began practicing law in California the following year. A friendly gentleman, Bob will be missed by all who were fortunate enough to know him.

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.