J.Kagan at 9th Cir. Conference

Today's DJ has Kagan describes Chevron reversal as an act of 'hubris squared' -- In remarks delivered at the 9th Circuit Judicial Conference, Justice Elena Kagan also said that the court is issuing too many concurring opinions, arguing they muddy "the waters of our decisions."

• While Kagan joined a concurring opinion by Justice Sonia Sotomayor in Rahimi, she said she is not a fan of concurring opinions, rarely writes them, and said lower courts "should ignore them."

[ABA Journal has Supreme Court justices are writing more concurrent opinions to accompany rulings] 

• Kagan praised retired Justice Anthony M. Kennedy, an appointee of President Ronald Reagan who spoke at the conference Monday, as "our civility enforcer and we miss him" - because he often suggested that an inflammatory word or sentence be removed.

Bloomberg Law has Elena Kagan Endorses High Court Ethics Enforcement Mechanism -- Justice Elena Kagan proposed Chief Justice John Roberts appoint a panel of judges to enforce the US Supreme Court’s code of conduct.

Law360 has Justice Kagan Floats Committee To Enforce High Court Ethics and Dems, And Now Biden, Contemplate Supreme Court Reform

On the heels of President Joe Biden saying he will push for U.S. Supreme Court reform in the final months of his presidency, two Democratic lawmakers on Thursday rallied to promote a bill that would increase the number of seats on the court from nine to 13.

USSG / constitutional democracy / 1st DCA pro tem update

Today's DJ has Young sons might be US solicitor general's harshest critics -- Elizabeth B. Prelogar told a meeting of the 9th U.S. Circuit Court of Appeals that she tries out her Supreme Court arguments on her sons to see if they can grasp her opening, 2-minute statement. [See also Law360's Solicitor General Warns Against Feds 'Winning At All Costs']

And the DJ has Justice Hoffstadt's The architecture of democracy -- Loper Bright Enterprises v. Raimondo and Trump v. United States have more in common than their 6-3 majorities. These cases speak to the fundamental architecture of our constitutional democracy, redefining the lines between the branches of government and re-allocating power to the judicial branch.

Pro Tem Update in the 1st District -- Assigned Judges: May-July 2024

• Justice Peter J. Siggins (retired) will be sitting pro tempore in Division One until September 19, 2024.
• Judge Danielle Douglas of Contra Costa County Superior Court will be sitting pro tempore in Division Four until September 7, 2024.

Law360 has Newman Facing 2nd Suspension For 'Continuing Misconduct' -- A panel of Federal Circuit judges on Wednesday recommended U.S. Circuit Judge Pauline Newman remain suspended for another year based on her ongoing refusal to cooperate with an investigation into her health, or even acknowledge the court's concerns.

9th Cir.'s Model E-Filing System

Bloomberg Law has Ninth Circuit’s Case Filing System Used as Model for Judiciary

• The federal judiciary’s administrative office is using the Ninth Circuit’s modernized case management system as a “model” and “testing ground” for its own project to update its own electronic filing program, the appeals court’s chief judge said.
• The San Francisco-based court started processing all new cases as of October through its newer Appellate Case Management System, though cases reopened before then continued to be processed in the older system. The development of the new system was a coordinated effort with the Second Circuit, Murguia said.
• Murguia also said that the Ninth Circuit has seen a significant decline in case filings over the last five years. She said the appeals court is “more current in its caseload than it has been in several years.” As of March 2024, the Ninth Circuit had fewer than 7,000 pending cases, which represents a 23% drop from 2019, and the current number of pending cases is the “lowest we’ve had in decades,” she said.

Some not-to-miss 9th Circuit opinions: This one (with concurrence) on stare decisis, and this dissent (a "disgrantle") from the grant of rehearing en banc (Newsweek article here).

The Recorder has LA Superior Court Still Grappling With Effects of Ransomware Attack -- The sprawling trial court system was operating with limitations on Wednesday as questions remain about how the cyberattack happened and whether sensitive information was exposed.

Young Appellate Judges

 

Bloomberg Law has Biden Favors Younger Judges in Shift From Previous Democrats

• More than half of President Joe Biden’s federal appellate court appointments so far were in their 40s or younger when they joined the bench, the highest share for any modern Democratic president
• Roughly 53% of Biden appellate appointees turned 49 or younger during the year they received their commissions, and roughly 21% turned 44 or younger, the data shows.
• For comparison, roughly a quarter of Barack Obama’s circuit picks, and about 38% of Bill Clinton’s circuit judges, were under 50 when they joined the bench. Just 5% of Obama’s appellate picks, and about 15% of his choices for district seats, were under 45.
• Biden’s move toward younger judges continues a practice championed by Trump. Nearly two-thirds of the Republican’s appellate judges were 49 or younger the year they received their commission—the highest share of any president in modern history.
• “There is something to be said about the wisdom that comes with a longer term of experience and practice,” said former judge Paul Watford, who was 44 when he joined the US Court of Appeals for the Ninth Circuit. “I don’t see anything good that comes from nominating people to the bench at a very young age, to be frank with you.”
• “You can’t cause damage on your own on the court of appeals. On the district court, in terms of what happens in your courtroom every day, you’re completely unchecked,” said [former 5th Cir. Judge Gregg] Costa, an Obama appointee to both courts who’s now in private practice.

From clerk to advocate

The ABA Journal has a great piece by AUSA Vanessa Kubota A Law Clerk's Transition: From umpire’s apprentice to fighter in the ring, in which she recounts some lessons from her clerkship at the Arizona Court of Appeals:

I applied for—and landed—a two-year appellate clerkship at Division One of the Arizona Court of Appeals—a popular choice among law clerk applicants for its uncommon practice of allowing its clerks to sit (and even chime) in on the secret deliberations of the panel. These were opportunities for us clerks to hone our oral advocacy skills.

She also notes that her judge, the Hon. David Weinzweig, will be releasing his book Zen in the Art of Legal Writing "soon."

LASC still having IT issues

LASC Announcement: Remote Appearances Unavailable Today in Civil, Family Law and Probate Cases --Due to ongoing connectivity issues resulting from last week’s ransomware attack, remote appearances will not be available today in Civil, Family Law and Probate cases. Parties with cases on calendar today in Civil, Family Law and Probate departments are instructed to appear in person if possible. Matters in which parties do not appear in person will be continued and parties will be notified of a continuance date by the Court. Please follow the Court on ‘X,’ @LASuperiorCourt, or Instagram, @LASuperiorCourt, for the latest updates, or visit this page for latest information on the Court’s recovery from the ransomware attack."

And: ”As a result of the tireless work of court staff and security experts, the Court will reopen all 36 courthouses tomorrow, July 23. Court users should expect delays and potential impacts due to limits in functionality. Additional information regarding court operations and availability of services will be shared later this evening.” For the latest Court updates, visit onthe Los Angeles Superior Court  Media Center.

The Recorder has Los Angeles Courts Reopen After Ransomware Attack Leads to 1-Day Closure -- Court officials say the court will have "limited functionality" as IT professionals work to restore network services disrupted in the hack.

9th Cir. Conference news

The DJ reports Retired Justice Kennedy urges civility at 9th Circuit conference -- Senior 9th U.S. Circuit Judge Mary M. Schroeder also paid tribute to the late Justice Sandra Day O'Connor.

On an evening that featured a heartfelt tribute to former U.S. Supreme Court Justice Sandra Day O'Connor, who died last December, former Justice Anthony M. Kennedy told judges, attorneys and academics at the 9th Circuit Judicial Conference Monday that they "have the duty to advance the cause of civility."

Kennedy, a Sacramento native who turned 88 on Tuesday and served on the Supreme Court for more than three decades until his retirement in 2018, spoke during the conference's opening program to an audience that included his former colleague, Supreme Court Justice Elena Kagan, and praised U.S. law schools as "the greatest educational establishments in the world."

And the DJ has 9th Circuit conference opens with a review of Supreme Court's term -- "This was a John Roberts term," Stanford Law School professor Jeffrey L. Fisher told attorneys and judges at the conference in Sacramento.

An afternoon session on generative artificial intelligence featured an eye-catching opening by Munger, Tolles & Olson LLP partner Miriam Kim, who played a video introducing the panel and the topic. She then asked the audience in a Sacramento ballroom if they realized the person in the video was not her, but her avatar. Many people raised their hands, indicating they had been fooled.

'Is This in Fact Real or Not?' 9th Circuit Conference Delves Into AI Issues in Federal Courts -- Even as generative artificial intelligence horror stories abound in the legal world, experts urged judges not to entirely discount its potential benefits.

RIP Justice Panelli (1931-2024)

The Mercurty News has California Supreme Court Justice Edward Panelli dies at 92

At the lectern has Former Justice Panelli dies (atthelectern.com)

Chief Justice Issues Statement on Passing of Justice Edward Panelli -- 
"Justice Edward Panelli served with honor and integrity over a long legal career and as a distinguished member of our California Supreme Court," Chief Justice Patricia Guerrero said.

The DJ has Edward A. Panelli, 1931 -- 2024 -- Served as a justice on the California Supreme Court.

Panelli served on the Supreme Court from 1985 to 1994. Before that, he was on the 6th District Court of Appeals, from 1983 to 1985, the last year as presiding justice of the court, and on the Santa Clara Superior Court from 1972 to 1983.

Former California Supreme Court Justice Edward Panelli Dies at 92 | The Recorder (law.com) -- The son of Italian immigrants, Edward Panelli was urged at an early age to become a lawyer. His judicial career spanned every level of California's judiciary and concluded with a career as a neutral.

• Then-Gov. Ronald Reagain appointed him to the Santa Clara County Superior Court in 1972. He was elevated to the First District Court of Appeal in 1983 and was named presiding justice of the fledgling Sixth District Court of Appeal in San Jose one year later.
• Then-Gov. George Deukmejian appointed him to the California Supreme Court in 1985. Voters affirmed his appointment in 1986, even as they ended the tenure of three Brown-appointees.

Ransomware shuts down LASC

LASC is shut down today because of a Ransomware attack. News Release here. Today, July 22, 2024, is considered a court holiday for purposes of computing time.

See:

Ransomware Hits Los Angeles Courts Amid Microsoft IT Outage (bloomberglaw.com);

Ransomware Attack Closes All 36 Los Angeles Courthouses | National Law Journal;

L.A. Court Closure Extends Past Weekend, Post-Ransomware Hit (bloomberglaw.com)

Also of note: 9th Circuit’s Unusually Low Reversal Rate This Supreme Court Term Doesn’t Tell Full Story | National Law Journal

The U.S. Court of Appeals for the Ninth Circuit—with its liberal reputation—was reversed in six of 12 cases that the U.S. Supreme Court reviewed this term, or just 50% of the time. For the Ninth Circuit, it’s an unusually low percentage. In recent past years, the largest federal appeals court’s reversal rate has typically fluctuated between 70% and 90%.

Now More Than Ever, Lawyers Must Exhibit Professionalism - Law360

Bloomberg Law has Biden to Propose Supreme Court Reforms, Including Term Limits -- President Joe Biden is planning to unveil proposals that could dramatically reshape the Supreme Court, including term limits on justices who now sit on the court for life

Latest Term Reveals Justice Barrett's 'Meticulous' Approach to Judging | National Law Journal

Kavanaugh Murder-Attempt Suspect Set To Face Trial - Law360

A man charged with attempting to kill U.S. Supreme Court Justice Brett Kavanaugh has failed to reach a plea deal after nearly two years of negotiations, setting his case up for trial in Maryland federal court, federal prosecutors said Friday. According to a status report prosecutors filed Friday, counsel for Nicholas John Roske of Simi Valley, California, had since late 2022 been regularly reporting to the court the status of their investigation into allegations against their client, as well as on the possibility of resolving his case through a plea agreement.

HSD filing order and law clerk tidbits

The 7th Circuit has issued a new general order on procedures for the FILING, SERVICE, AND MANAGEMENT OF HIGHLY SENSITIVE DOCUMENTS here.

Bloomberg has Judiciary Weighs Guidance on Ethical Hiring for Law Clerks -- The judiciary’s policymaking body is examining whether it should craft more guidance on judges’ hiring practices for law clerks, following an incident regarding the hiring of a clerk who was reported to have sent racist text messages.

More Scotus round-ups

The NLJ has 'A Right Turn': Roberts Leaves Broad Consensus Behind in Blockbuster Supreme Court Term -- Throughout the October 2023 term, Chief Justice John G. Roberts Jr. reminded court watchers that, despite his reputation as an “institutionalist” who prizes consensus and moderation, he also holds strong conservative convictions.

In his 18th year as chief justice, Roberts played a central role in the court’s biggest rulings this term, authoring landmark decisions on presidential criminal immunity, the Second Amendment, and administrative law. According to a statistical review of the term by scholars Adam Feldman and Jake Truscott, Roberts was in the majority in 96% of cases this term, narrowly beating out second-place Justice Brett Kavanaugh for the justice most frequently in the majority.

The WSJ has A Wacky 18th-Century Firearm is Starring in Modern Gun-Law Debates -- A U.S. Supreme Court ruling has lawyers arguing over a failed invention called the 'Puckle' 

• Three centuries ago, London lawyer James Puckle dreamed up a gun he hoped would be a hit with the British Navy, and a financial boon for himself. Instead, Puckle’s peculiar creation, resembling a giant revolver on a tripod, flopped spectacularly.
• Firearm historians—accustomed to toiling in obscurity—now find themselves in hot demand as expert witnesses.

"a note on civility"

 2/4 publishes an opinion here to draw attention to a "note on civility and persuasive briefing writing":

Having resolved the merits of the appeal, we cannot allow the tone of the briefing to pass without comment. Appellant’s briefs use inappropriately harsh terms to launch needless and unsubstantiated attacks on the decisions made by the trial judge, as well as against the opposing party and its lawyers. ... Appellant can certainly challenge the outcome without such unfounded insinuations that the trial judge had become an advocate for the other side.

Appellant targets both respondent and its counsel in the same freewheeling, unprofessional manner. None of these statements were necessary. None of the vitriol advanced the legal arguments in this case. To the contrary, this incivility created an unnecessary distraction to both opposing counsel and this court.

Emotional diatribes do nothing to support the arguments made by counsel. In fact, this verbiage serves the opposite purpose. It requires the court to spend additional resources filtering out the hyperbole, and requires opposing counsel to bill their client for additional time to compose a response.

Ad hominem attacks and other invective detract from counsel’s legal arguments, signal inappropriate personal embroilment in the dispute, and indicate an inability to engage in the reasoned analysis the courts need and counsel’s clients deserve. When counsel resort to name-calling and to unsupported claims of misconduct, they risk obscuring any meritorious arguments they may have. Appellant’s counsel would be well advised to refrain from incivility in the future.

9th Circuit Survey

The Appellate Lawyer Representatives to the Ninth Circuit are conducting a Survey of Practitioners. The results will be presented to the Judges of the Ninth Circuit at a meeting at the end of July. Here is the survey: https://www.surveymonkey.com/r/6W7PKSS

The survey should take only around 10 minutes to answer. This is a terrific opportunity to provide your feedback to the Court about practice in the Ninth Circuit. We are seeking input from all practitioners who appear in the Ninth Circuit – whether you specialize in appellate practice or only handle an occasional appeal. Your responses will remain anonymous—really. (All responses are anonymous when submitted, and are accessible only by a small group of lawyer representatives; no identifying information will be provided to the Court.) Responses are due by noon on Friday, July 19, so don’t delay.  Respond today!

"an apt and adequate penalty"

Yesterday 4/3 declined to impose appellate sanctions, although sanctions would be "appropriate," in this unpub.

• The record in this appeal from a summary judgment motion contains over 7,000 pages. Stahl asserts the large appellate record “is essential for the court to understand the procedural history of the case and for [her] to support her position.” She is wrong. Even a cursory review of her record designation reveals she included numerous documents immaterial to the appeal’s determination. Stahl included 373 documents in her designation of record. GF Capital’s motion for summary judgment was the 299th document in Stahl’s designation of record. Only a few of the 298 documents preceding the summary judgment motion were relevant to the appeal. Moreover, Stahl included over 30 documents in the record that were filed in the trial court after the judgment on appeal was entered against her. It is telling that in her appellate briefs, Stahl cites very few documents in the record. If the documents in the voluminous record were “essential” as she contends, she would have cited to more of them in her appellate briefs.
• Stahl’s conduct of including in the record matters not reasonably material to the appeal’s determination is sanctionable conduct under California Rules of Court, rule 8.276(a)(2). Although appropriate, we decline to impose sanctions in this instance. We will, however, not be as forgiving should we find Stahl’s appellate counsel engaging in similar conduct in the future.
• Stahl did not support her appellate arguments with citations to the record. While Stahl included some record citations in her statement of facts, she included only two in the entire argument portion of her brief.
• We have found Stahl’s appellate contentions waived 20 because of the deficiencies in her briefs and other reasons. This is an apt and adequate penalty.

Bloomberg Law has Ocasio-Cortez Moves to Impeach Supreme Court’s Thomas, Alito and the NLJ has Rep. Ocasio-Cortez Moves to Impeach Justices Thomas and Alito -- The allegations in the impeachment articles largely track reporting by ProPublica, The New York Times and other outlets about the justices' conduct away from the Supreme Court, which is now on summer recess after another monumental term in which Alito and Thomas played an important role.

Law360 has Ocasio-Cortez Seeks Impeachment Of Justices Thomas, Alito

3 retired PJs reflect

LACBA's Appellate Courts Section presents Reflections on Over 20 Years on the Court of Appeal -- Retired LASC Judge Clifford Klein will moderate a discussion on September 25 (noon to 1 via Zoom; one hour of Appellate Specialization MCLE) with three former 2d District PJs--Tricia Bigelow, Dennis Perluss, and Laurence Rubin--about their observations on how the court has changes, their toughest cases, and their most important decisions.

Bloomberg Law has Writings Show Conservative Justices Differ Even When in Majority (bloomberglaw.com)

• The justices penned more concurring opinions, 62, than majority ones, 59, this term, accounting for almost 40% of total decisions issued in argued cases
• 
  
• The high number of concurrences—three or more in eight cases—suggests conservatives are feeling freer to voice their own views in writing separately rather than just signing up with a majority. The increase also might signal that Chief Justice John Roberts has less control over opinion writing than when the court was split 5-4.

SCOTUS recap time

With the SCOTUS Term now over, it's time for the flurry of recap articles:

Law360 has US Supreme Court Term In Review: What You Need To Know with links to numerous articles, including: The Firms that Won Big at The Supreme Court, Breaking Down the Vote: The High Court Term in Review; The Sharpest Dissents from the Supreme Court Term; The Funniest Moments of the Supreme Court's Term; How Reshaped Circuit Courts are Faring at the High Court; and more...  

In the NY Times, Prof. Stephen Vladeck has The Most Interesting Justice on the Supreme Court Is Also the Loneliest

In the Boston Globe, David Lat has It’s John Roberts’s Supreme Court after all

State budget cuts to appellate courts

See Judicial Council to Take Action on $97 Million Required Cut to Trial Courts -- State budget also contains a commensurate reduction of up to 7.95% to the Supreme Court, Courts of Appeal, and Judicial Council.

See also, in the ABA Journal, Chemerinsky: SCOTUS term reveals deeply divided justices frustrated with one another

I would describe them as “nine angry scorpions in a bottle.” There is a strong sense that it is a deeply divided court. There were a total of 59 opinions, and 23 were 6-3 and another five were 5-4.

Law.com has What We Learned From the Supreme Court's Latest Blockbuster Term -- While the justices take a break from the daily grind of opinion writing, the country is still reeling from a Supreme Court term that delivered politically charged decisions on issues from abortion to guns to fundamental questions about the separation of powers.

Wall St. Journal appellate articles

 Appeals Court Reinstates $10 Billion Bank Lawsuit After WSJ Investigation Into Conflicts - WSJ

The ‘MAGA Supreme Court’ Doesn’t Exist - WSJ

SAJEC wants your input!

The Los Angeles County Bar Association’s State Appellate Judicial Evaluation Committee (SAJEC) is evaluating Los Angeles Superior Court judge Martha Matthews for possible appointment to the Second District Court of Appeal. If you have input on Judge Matthews’ qualifications, please fill out the questionnaire linked below or contact committee chair Alana Rotter (arotter@gmsr.com). https://www.surveymonkey.com/r/SAJECMatthews

3 arguments in 7 days

The DJ has He Did What? Attorney Julian Poon tackled three different appellate arguments in just seven days last month.

• On June 5, Poon argued in front of the California Supreme Court in Los Angeles ....
• Poon then traveled a few days later to San Francisco, where on June 10 he argued in the morning before a 9th U.S. Circuit Court of Appeals panel ....
• Later that afternoon, Poon flew to San Diego, where on the morning of June 11 he argued in front of a 4th District Court of Appeal, Division 1 panel ....
• “It was intense but exhilarating, and I’d do it all over again,” Poon said of the whirlwind tour of the state. “Although if I had my druthers, I wouldn’t mind spacing each one out a few days more. But if it has to be back-to-back like that, bring it on. I love it, and I love what I do.”

The DJ also has PJ Gilbert's A day in the life -- The justice reflects on a Sunday morning ritual, maintaining standards of excellence in the legal profession and the loss of a lifelong friend.

The Recorder has The Tough Part About the Transition to the Bench … and Then to the Appellate Bench--Speaking at the federal courthouse in Seattle last week, Ninth Circuit Chief Judge Mary Murguia and her colleagues Consuelo Callahan and Kim McLane discussed their career paths and the biggest challenge about taking on trial and appellate court roles.