Friday, June 24, 2022

9th Cir. Rule proposals

Pursuant to 28 U.S.C. § 2071(b), comments are invited on proposed revisions to Circuit Rule 32-1, Visual Images for Demonstrative Purposes in Briefs; Circuit Rule 3-1, Filing the Appeal; and Circuit Rule 29-2, Amicus Curiae Briefs relating to Petitions for Rehearing. The proposed changes to Rule 32-1 and new accompanying Advisory Committee Note are intended to clarify whether and how visual images may be used in briefs for demonstrative purposes. The remaining proposed Rule changes are minor and are designed to clarify that filing fees in BAP appeals are paid to the Court of Appeals, and that Amicus Curiae briefs submitted under Rule 29-2 do not require a motion if all parties have consented.  If ultimately approved by the Court, these rules would become effective December 1, 2022. Please direct comments to Molly C. Dwyer, Clerk of Court, at Molly_Dwyer@ca9.uscourts.gov, and Susan V. Gelmis, Chief Deputy Clerk, at Susan_Gelmis@ca9.uscourts.gov. Comments must be submitted no later than August 5, 2022. 

1st DCA Local Rule re Focus Letters & Tentatives

First District Local Rule 15 is amended, effective today, to read in its entirety:

Rule 15. Focus Letters and Tentative Opinions

(a) [Focus Letters] Panels may issue focus orders or letters in cases scheduled for oral argument. These orders or letters are issued before argument, and they notify the parties about particular issues the panel is interested in discussing.

(b) [Tentative Opinions] Panels may, in their sole discretion, issue tentative opinions in cases scheduled for oral argument. Any such tentative opinion will be issued before the argument, and the parties will be notified that the court is prepared to rule along the lines indicated in the tentative opinion. When a tentative opinion is issued, oral argument will be held only if a party that originally requested oral argument notifies the court, opposing counsel, and unrepresented parties, that they still wish to proceed with oral argument. If such a notification is given, oral argument will proceed as scheduled, and the views expressed in the tentative opinion will be subject to change. If no such notification is given, oral argument will not be held, and the court’s final opinion will reflect the substance of the tentative opinion.

Orren receives LACBA pro bono award

 

At last night's LACBA Installation Dinner, Tyna Orren received the pro bono award for her leadership of the 2d District's pro bono Appellate Self-Help Clinic. Congrats, Tyna, for your years of dedication!

Wednesday, June 22, 2022

'Female Force' Justices

From today's Law.com's Supreme Court Brief 

Amy Coney Barrett and Ketanji Brown Jackson are featured in new comic books.
Comic Book Heroines
Perhaps you really haven’t arrived as a Supreme Court justice until you have your own comic book. Justice Amy Coney Barrett and soon-to-be justice Ketanji Brown Jackson are the latest to be profiled in the “Female Force” comic book series by TidalWave Comics. “Researching the justices took the most time,” author Mike Frizell said. “I spend weeks watching interviews, reading transcripts and researching their histories to craft a narrative accessible to a lay reader. We hope that readers learn something while being entertained by their intriguing life stories.” Justices Sonia Sotomayor and Ruth Bader Ginsburg were subjects of previous comic books by TidalWave and are still in print. The company says the FemaleForce series is focused on female empowerment.Print copies of the biography comics are available on Amazon and digital versions are available wherever e-books are sold.

The more, the merrier

Law360 reports Fed. Circ.'s New COVID Rules Let More Attend Arguments:

The Federal Circuit has revised its COVID-19 protocols to increase the number of people allowed at in-person arguments, about a week after the Washington, D.C., appellate court expanded the kinds of testing it would accept from lawyers who plan to argue in person.

These revisions increase the number of permitted attendees at argument to allow counsel to bring up to two additional attendees into the courthouse. Those attendees may include clients, backup lawyers and paralegals, according to the latest notice.

Also: The Commission on Judicial Appointments will hold two public hearings, on Aug. 3 and 10, to consider appointments to appellate courts in Ventura and San Francisco.

• Aug. 3 at 10 a.m.—Judge Hernaldo J. Baltodano, as associate justice of the Second Appellate District, Division Six (Ventura). This hearing will be held remotely and webcast live on the California Courts Newsroom.
• Aug. 10 at 11:30 a.m.—Jeremy M. Goldman, as associate justice of the First Appellate District, Division Four (San Francisco). This hearing will take place in the Supreme Court Courtroom, 350 McAllister Street, 4th Floor, in San Francisco, and also be webcast live on the California Courts Newsroom.

Tuesday, June 21, 2022

5th Cir. parties on!

Too much?
Law.com covers a punny opinion from the 5th Circuit in ‘Party On.’ Judges Side With Brewer in Pun-Filled Ruling On To-Go Beer Sales -- “This is a case about beer. It turns on the meaning of the word ‘owned,’ a pint-sized word with stout implications for craft brewers in Texas,” Judge Cory T. Wilson wrote.

It’s not the first time a judge has injected humor or unconventional legal writing into an opinion. Ross Guberman, author of judicial writing book Point Taken, said the debate over judges having fun in their opinions started 50 years ago, when U.S. Supreme Court Justice Harry Blackmun used baseball trivia in the baseball antitrust case Flood v. Kuhn.
Guberman doesn’t believe Wilson’s beer puns will trip up readers, and while some may worry that comedy in opinions disrespects litigants, that’s not the case here.
“The losing party was a bureaucracy, not a criminal defendant. The substance is clearly distilled, and the rest of the opinion is sober,” said Guberman, the opinion-writing trainer for new district court and appeals court judges. “Haughty, convoluted opinions disrespect parties more than corny wordplay does.”

Today's DJ has Jon Eisenberg in Appellate delay: the Judicial Council moves forward

This idea of annually equalizing appellate court workloads is not new. It was first proposed in the Report of the Appellate Process Task Force – the Strankman Commission – in 2000. Its time has come – indeed, is past due.

Throughout the course of my 16-month effort to expose and remedy the 3rd District’s delay crisis, I did what I felt had to be done to get something meaningful accomplished. I believed from the outset, and still believe, that anything short of a full public airing would not have gotten the job done. I took my cue from Louis Brandeis’s 1913 aphorism on publicity – that “sunlight is said to be the best of disinfectants.”

Masks in the 3d

The 3d District posted this notice last week: Notice regarding masks
In an effort to provide a safe environment, members of the public will be required to wear masks at all times while in the building, including while attending oral argument. Those presenting argument may remove their masks when speaking at the lectern. To provide social distancing in the courtroom, occupancy will be limited.

2d Dist. Self-Help Clinic

Appellate Self-Help Clinic – Open Three Days a Week
Public Counsel's Appellate Self-Help Clinic is open three days a week to provide general legal information and procedural assistance to people who are representing themselves in appeals pending in the Second District Court of Appeal and the Appellate Division of any Superior Court within the Second District.
The Appellate Self-Help Clinic is open on Tuesday, Wednesday and Thursday from 9:00 a.m. to 3:30 p.m. Clinic consultations are by appointment only and are available in person, via video conference, or by telephone.
Appointments for the Appellate Self-Help Clinic can be requested by calling (213) 830-7234 every Tuesday starting at 8:00 a.m. The line will remain open until all available appointments are filled.

Monday, June 20, 2022

Latest CSCHS Review now online

The California Supreme Court Historical Society has posted its Spring/Summer ’22 issue of the California Supreme Court Historical Society Review, available at https://www.cschs.org/publications/cschs-review/.


Appellate Practice Network launches!

The CLA Litigation Section's Committee on Appellate Courts has launched its Appellate Practice Network--the first and only publicly-open-membership statewide bar group for appellate lawyers and lawyers interested in appeals:

New Statewide Appellate Practice Network Launched!

The Litigation Section’s Committee on Appellate Courts is pleased to announce the launch of the Appellate Practice Network, a statewide network of appellate attorneys for the exchange of ideas and information and the building of community. The mission of the Appellate Practice Network is to promote excellence, professionalism, and civility among appellate practitioners; to keep members informed about current developments in appellate practice; to connect members for the exchange of information, ideas, and tips on practicing in the state and federal appellate courts; and to provide information about high-quality appellate specialization education. Members of the Appellate Practice Network will have access to the statewide network of appellate attorneys through a listserv open to any member of the California Lawyers Association at no cost. Click HERE to join the Appellate Practice Network.

The Appellate Practice Network is run by the Litigation Section’s Committee on Appellate Courts. One of the primary responsibilities of the Committee is to provide informative and practical continuing legal education that also provides appellate specialization credit for the California State Bar Legal Specialization program. To learn more about the Committee or to apply to join the Committee, click HERE.


Also, the June 2022 Litigation Update is available here.


Justice Elia to retire at month's end

Last week's Recorder reported 6th District Justice Franklin Elia Announces His Retirement -- Associate Justice Franklin Elia has participated in 11,930 appellate decisions since joining the Sixth District Court of Appeal in October 1988.

  • Elia’s departure marks the end of a 34-year tenure on the appellate bench and a 47-year legal career that started in 1975 when, as a recent graduate of Santa Clara University School of Law, he joined the attorney general’s office as a deputy in the criminal division.
  • After a stint in the Palo Alto city attorney’s office, Elia, at age 33, was appointed to the Santa Clara County Municipal Court in 1983 by Gov. George Deukmejian. In 1986, he was elevated to the Superior Court and just two years after that Deukmejian named him to the Sixth District, making him one of the state’s youngest-ever appellate court justices at 38 years old.
  • Elia has participated in 11,930 appellate decisions and authored 3,793 opinions, including 330 published opinions.
The 6/21/22 DJ has After 34 years and 3 retention elections, Elia exits 6th District
  • “I leave the court knowing that I have done everything possible to be productive, and that I have always dedicated myself to the cause of justice. Now the time has come for me to pursue other interests both in the law and our community”
  • Originally from Tehran, Iran, Elia immigrated to the U.S. with his parents in the 1950s and graduated from Santa Clara University Law School. He was admitted to the California Bar in December 1975 and became a deputy state attorney general.

Judicial profiles decoded

Beds latest column is one for the ages! He provides a guide to decipher judicial profiles in Bedsworth: Euphemism, The Neglected Tool
Judicial profiles are the most educational articles in the local legal paper, "not because of the 30 column inch piece about the judge—which invariably contains several useful nuggets of information and is itself an extremely valuable resource—but because of what they teach about the use of euphemism," says Justice William Bedsworth.

A few samples: 

  • “He knows the law.” Unfortunately, “the law” he knows is the law of averages. This guy is flipping a coin up there. Totally clueless.
  • “She’s very careful.” Careful? She’s paralyzed is what she is. I’ve never seen anybody so slow. It takes her an hour-and-a-half to watch “60 Minutes.” Give us a break, lady, make a decision. While we’re young!
  • “He can be tough.” Cantankerous old viper. Toughest decision he ever has to make is whom to bite next.

Appellate delay working group & more

Earlier this month the Chief Justice launched a workgroup to examine appellate delay:

The official announcement is here: Chief Justice Announces New Workgroup to Enhance Timely Judgments in Appellate Courts

The workgroup will consider, among other things, measures designed to:Prevent decisional delay in the appellate courts that may cause prejudice or harm to litigants before those courts by identifying practices and guidelines concerning case processing techniques, calendar management, and the administrative duties required to reduce delays; and Provide transparency by requiring appellate courts to report age of case metrics. ... “I would like a final report no later than early next year,” said the Chief Justice, “but I have asked Justice Humes to report back as soon as practical and to make interim recommendations as necessary.”

The Recorder had: 'I Don't Know What Happened in the Third:' Chief Justice Launches Workgroup to Investigate Appellate Court Delays

Chief Justice Tani Cantil-Sakauye announced ... forming a working group to scrutinize how the state’s courts of appeal handle their caseloads. The group, chaired by First District Administrative Presiding Justice James Humes, will be charged with identifying ways to prevent “decisional delays” in the appellate courts, including requiring those courts to report the “age” of cases before them.

And The Recorder also had Courts 'Can't Continue' Without More Appellate Justices, California Chief Justice Says

California needs more appellate justices, either through new positions on the existing six courts of appeal or by creation of a seventh district, Chief Justice Tani Cantil-Sakauye said ... Speaking to a conference hosted by UC Berkeley School of Law’s California Constitution Center, the chief justice noted Gov. Gavin Newsom has included funding for 23 new trial court judgeships in his proposed 2022-23 budget.
[The DJ had Proposed budget would give millions more to judiciary.]

The DJ had Chief Justice announces work group on Court of Appeal delays AND 3 Supreme Court justices talk about their work at law school forum.

On June 16, the DJ reported 18 Judges, lawyers, clerks will study appeals work flow:
Members [of the Appellate Caseflow Workgroup, in addition to PJ Humes] include a presiding justice from each of the other appellate districts, except for the 3rd. That district does not currently have a permanent presiding justice. Instead, the court’s newest member, Justice Laurie M. Earl, will be in the workgroup. Other members include a clerk or attorney from every district, as well as several veteran appellate attorneys.
Attorney members include Beth J. Jay, of counsel with Horvitz & Levy in San Francisco, deputy attorney general Amit A. Kurlekar, and Michael G. Colantuono with Colantuono, Highsmith & Whatley in Grass Valley, who is the president of the California Academy of Appellate Lawyers.

Others include San Francisco-based Kelly A. Woodruff, counsel with the California Appellate Law Group LLP and vice chair of the California Lawyers Association Committee on Appellate Courts, and Laurel Thorpe, executive director of the Central California Appellate Program.


The DJ also had Commission confirms justice to 4th District Court of Appeal -- Justice Joanne Motoike is the first person of Japanese heritage and the first woman of color to sit on Division 3 of the court.

$cotus incomes

SCOTUS Justices released their 2021 financial disclosure forms earlier this month, as reported in Law.com: Book Royalties, Teaching Gigs Boost Justices' 2021 Income

  • Roberts earns an annual income of $280,500 as chief justice. The associate justices have annual salaries of $268,300.
  • Another source of income for several justices was rental of secondary homes. Chief John Roberts Jr. received income from the one-eighth interest he owns in a cottage in Limerick, Ireland, and Thomas, Kagan and Sotomayor also earned rental income.
  • Three justices—Amy Coney Barrett, Neil Gorsuch and Sonia Sotomayor—earned more than $100,000 from book projects. Justice Amy Coney Barrett reported $425,000 as partial payment of a multimillion-dollar book advance.
  • Most of the justices also supplemented their income with teaching stints at law schools. Federal law limits their outside teaching income to $29,895. Three of the justices got close to that limit: Justice Clarence Thomas ($29,595 from George Washington and Notre Dame law schools), Gorsuch ($26,541 from George Mason University law school) and Justice Brett Kavanaugh ($25,541 from George Mason). Barrett also received $14,280 for teaching at Notre Dame law school, where she had taught before being appointed a federal judge in 2017.
The U.S. Supreme Court settles the law of the land — it's not a "training ground for lawyers," Justice Sonia Sotomayor said Thursday. So before arguing their first case in the nation's top court, advocates should look within their soul and ask, "Am I truly ready?" she said. Justice Sotomayor gave that stern warning to an audience of young lawyers at the left-leaning American Constitution Society's annual convention in Washington. It was in response to a question from the moderator about the lack of diversity among high court advocates.

The "worst feeling" she experiences as a justice is wondering why a lawyer appearing before her didn't hand over a case to "somebody who knew what they were doing." Then, she added, "And I keep those notes. And some day I'm going to write an article about it."

9th Circuit wants your feedback!

The Ninth Circuit Appellate Lawyer Representatives are circulating a survey designed to assist the Court in addressing questions related to (1) remote appearances and (2) certification of state law questions with the concerns and perspectives of the bar in mind. The survey results will be shared with the judges at the annual Ninth Circuit Conference in July. Complete the survey at this link no later than June 27, 2022.

In other 9th Cir. news: Law360 has Biden Unveils Picks For DC, 5th And 9th Circs. reporting that "Biden nominated Roopali H. Desai [of Arizona and a former clerk to Judge Schroeder] to the Ninth Circuit. Desai is a partner at Coppersmith Brockelman PLC and has practiced there since 2007. She previously worked as an associate at Lewis & Roca for two years. She would be the first South Asian person on the Ninth Circuit if confirmed, according to the White House." The DJ has Elections law attorney appointed to seat on 9th Circuit.

The MetNews and other outlets reported: Ninth Circuit Judge VanDyke Issues Rebuke to Colleagues for Ignoring Deference Standard about this opinion. See The Recorder's article: In Fiery Dissent Lawrence VanDyke Chastises 9th Circuit for 'Distorted' Precedent -- Desai would be the first person of South Asian ancestry to serve on the 9th Circuit.

2d District pro tem update

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

  • Judge Audra M. Mori of the Los Angeles Superior Court will be sitting Pro Tem in Division One until June 30, 2022  
  • Judge Michelle C. Kim of the Los Angeles Superior Court will be sitting Pro Tem in Division Three until June 30, 2022   
  • Judge Rashida Adams of the Los Angeles Superior Court will be sitting Pro Tem in Division Three from June 20, 2022 until August 20, 2022  
  • Judge Noël Wise of the Alameda Superior Court will be sitting Pro-Tem in Division Seven until June 30, 2022.  
  • Judge Albert T. Harutunian III of the San Diego Superior Court will be sitting Pro-Tem in Division Eight until June 30, 2022  

Wednesday, June 8, 2022

New Cal Supreme Court website!

Check out the new Cal Supreme Court website here:
https://supreme.courts.ca.gov/

UCI's Supreme Court Review program

UCI School of Law proudly hosts the 2022 Supreme Court Term in Review, moderated by Chancellor’s Professor Michele Goodwin. This year, Professor Goodwin is joined by leading experts in constitutional law, criminal justice, women’s rights, administrative law, the Second Amendment, and Free Speech. This Supreme Court term is unlike any other in nearly fifty years.
Register here.
Supreme Court Term in Review -- Registration is Open and Free to the Public!
WEDNESDAY, JULY 6, 2022, 10:00 a.m.–11:30 a.m., Reception to Follow
IRVINE BARCLAY THEATRE, 4242 Campus Drive, Irvine, CA 92612







Tuesday, June 7, 2022

Get well soon! Chief has COVID

Statement from California Supreme Court Clerk Jorge Navarrete -- Chief Justice Tani G. Cantil-Sakauye has tested positive for COVID-19 and is exhibiting mild symptoms.

The Recorder's story, Chief Justice Tani Cantil-Sakauye Tests Positive for COVID-19, states "Associate Justice Martin Jenkins will serve as acting chief justice on Tuesday based on a scheduled rotation" and "The number of COVID-19 cases in California has been rising in recent weeks. The testing positivity rate increased to 8.3% for the seven-day period ending June 1, according to the state Department of Public Health. Gov Gavin Newsom announced on May 28 that he had tested positive for the novel coronavirus."

Today's DJ monthly Exceptionally Appealing column, Supraman's Kryptonite, is about the Bluebook and the Yellowbook. (Be sure to send feedback, and your choice for preferred citation style, to the author.) And Moskovitz's column, Dressed to Deceive, is about what clients wear to court.


Law.com has US Supreme Court Is More Conservative Than Most Americans, Trio of Surveys Find -- 
The surveys' conclusions, published this week, "show that the gap between the court and the public has grown since 2020, with the court moving from being quite close to the average American to a position that is more conservative than the majority of Americans."

And Court Masks Mandates Impacted By Judges Political Ideology, Study Finds -- Republican-appointed chief judges issued mask mandates 43.1 percent of the time and Democratic-appointed chief judges did so 52.0 percent of the time between March 2020 and July 2021, the study found.


Monday, June 6, 2022

DJ stories about 3d Dist & appointments

Today's DJ has Vacancies on 3rd District draw speculation -- With 3 openings, Gov. Gavin Newsom has chance to remake crucial appellate court but its case backlog is daunting.

[And see in the ABA Journal Appeals Judge accused of excessive delays agrees to retire]

And Newsom names 2 justices to courts of appeal; 11 to superior courts -- Jeremy M. Goldman, co-chief of appellate litigation at the San Francisco city attorney's office, was nominated to the 1st District; San Luis Obispo County Judge Hernaldo J. Baltodano was nominated to the 2nd District.

The DJ also has PJ Gilbert in In defense of old White men – A vanishing breed. On second thought – good riddance. The piece praises "a recent book by fellow columnist Myron Moskovitz, Strategies on Appeal (CEB, 2021). In 14 chapters he tells you everything you want to know about appealing a case, even what to do about losing."

Law360 has What's Slowing Down The Supreme Court? The Supreme Court is less than a month out from the end of the term and hasn't yet decided half of its argued cases, working at its slowest pace in years. What's gumming up the works?