Saturday, January 22, 2022

9th Circuit Covid status update

Jan.21: Notice – Update for Court OperationsIn-Person Oral Arguments Suspended through February 28, 2022. All Oral Arguments in February Will Proceed Remotely by Video Conference.

Please visit these links for more information:

Covid Updates

Protocols

Amended Administrative Order Regarding Vaccines



Friday, January 21, 2022

SCOTUS levity

Rather than focus on Maskgate, how about a little horsing around? Here's some SCOTUS levity, courtesy of Nicholas Wallace on Balls & Strikes: It Is Time to Bring Circuit Riding Back to the Supreme Court -- Making the justices ride horses across the country: the most important Court reform proposal no one is talking about.



Thursday, January 20, 2022

Pandemic v. D.C. Cir.

The D.C. Circuit has issued the following notice:

In light of the current circumstances relating to the COVID-19 pandemic and the latest public health guidance, in-person oral arguments remain suspended. All oral arguments will proceed remotely by video conference using Zoom for Government until further notice.

 


Welcome to the board

The First District's Justices webpage now has an entry for new Justice Rodriguez

Victor Rodríguez

Justice Rodríguez was nominated by Governor Gavin Newsom as Associate Justice of the Court of Appeal for the First Appellate District, Division Three, in September 2021. The Commission on Judicial Appointments confirmed his appointment on October 13, 2021. Prior to his appointment to the Court of Appeal, Justice Rodríguez served as a judge on the Alameda County Superior Court since January 2018. For most of his time on the superior court, Justice Rodríguez presided over a dedicated civil domestic violence restraining order department, where he also handled elder abuse and gun violence restraining order matters, and he served as chair of the court's Family Violence Council and Access Committee. He also served for five months as a pro tem justice in Division Five of the Court of Appeal for the First Appellate District.

Before his appointment to the superior court, Justice Rodríguez worked at the California Supreme Court from 2006 to 2015 as a judicial staff attorney for Justices Carlos R. Moreno, Goodwin H. Liu, and Carol A. Corrigan, and from 2015 to 2018 as the supervising staff attorney for Justice Mariano-Florentino Cuéllar. He also served as an attorney on the court's Criminal Central Staff from 2012 to 2013. Before working at the supreme court, Justice Rodríguez served as a law clerk for Judge Consuelo B. Marshall at the U.S. District Court for the Central District of California from 2005 to 2006, and he was a Skadden Fellow at the Mexican American Legal Defense and Educational Fund from 2003 to 2005.

Justice Rodríguez serves as the chair of the Language Access Subcommittee to the Judicial Council's Advisory Committee on Providing Access and Fairness, and he also serves on the Advisory Committee. He previously served on the Judicial Council's Language Access Plan Implementation Task Force until it sunset in March 2019.

Justice Rodríguez earned his J.D. degree from the University of California, Berkeley School of Law, a M.A. degree from California State University, Long Beach, and a B.A. degree from the University of Southern California.

Justice Rodríguez, his wife Jodi, and his two children live in Oakland.

Holly Thomas confirmed to 9th Circuit

Law.com has Senate Confirms Holly Thomas to Ninth Circuit -- Thomas is the fourth Ninth Circuit nominee confirmed to the federal bench since President Biden took office.

  • The U.S. Senate confirmed Los Angeles Superior Court Judge Holly Thomas to the U.S. Court of Appeals for the Ninth Circuit, making her the second Black woman to ever sit on the largest federal appeals court.
  • The Senate voted 48-40 to confirm Thomas.
  • After clerking for Judge Kim McLane Wardlaw on the U.S. Court of Appeals for the Ninth Circuit, Thomas joined the NAACP Legal Defense and Educational Fund as assistant counsel working on civil rights matters before becoming a senior attorney in the Appellate Section of the U.S. Department of Justice’s Civil Rights Division in 2010.
  • Thomas will fill a vacancy created by Judge William Fletcher’s taking senior status.
9th Cir. News Release here

You don't see this every day!

Please read this 9th Circuit 2d Amendment opinion here in which Judge VanDyke pens the opinion, Judge Kleinfeld writes a concurrence (putting citations in footnotes a la Bryan Garner), and then Judge VanDyke also writes a concurring opinion with an alternative draft opinion, premised on the likelihood of an en banc challenge. And note the tone of the writing (especially the footnotes). Definitely not like anything encountered in law school casebooks. Many, many choice quotes...

  • "Neither pandemic nor even war wipes away the Constitution."
  • "I agree wholeheartedly with the majority opinion, which is not terribly surprising since I wrote it."
  • "I figure there is no reason why I shouldn’t write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jumpstart on calling this case en banc. Sort of a win-win for everyone. To better explain the reasoning and assumptions behind this type of analysis, my “alternative” draft below will contain footnotes that offer further elaboration (think of them as “thought-bubbles”)."

See in The Recorder: 'You're Welcome': 9th Circuit Judge Writes Alternative Opinion for Ruling on COVID Gun Shop Closures -- Judge Lawrence VanDyke predicted the case alleging Second Amendment violations will be heard by the full court and wrote an "alternative draft opinion."

Wednesday, January 19, 2022

Dismissal for extreme wackiness

Today 1/3 dismisses an appeal here in which the pro per plaintiff sued a lawyer (who had beaten him in other litigation) in a 252-page complaint seeking $13.5 quadrillion in damages for a series of alleged conspiracies and crimes committed over the course of human history, including “Colonizing, Slavery, Human, Opium, Heroin, Trafficking, and Robbing the entire world today.”

Respondent moved to dismiss the appeal because its “fantastic, delusional and fanciful allegations . . . fall unquestionably into the category of frivolous cases where the Court of Appeal can and must act to stop the offending harassment and vexatious activity."

  • Appellate courts have the “inherent power to summarily dismiss any action or appeal which has as its object to delay, vex or harass the opposing party or the court, or is based upon wholly sham or frivolous grounds.”
  • The allegations in the complaint evince harassment. They are replete with invective and ad hominem personal attacks
  • it is not difficult to conclude even at this stage that the appeal lacks merit
  • any review of the complaint clearly reveals it to be harassing and [Appellant's] inability to even preview an intelligible argument to defend his complaint further underscores its lack of merit. We see no need to spend further limited judicial resources on such an appeal.

Persistent SCOTUS Gender Gap

The NYT has Adam Liptak's The Persistent Gender Gap at the Supreme Court Lectern

  • In the term that ended in June, just 18 percent of arguments were presented by women, according to data compiled by Kimberly Strawbridge Robinson of Bloomberg Law.
  • A year before, the figure was 13 percent. Over the past decade, Ms. Robinson found, the percentage of female lawyers presenting arguments at the court ranged from 12 to 22 percent.
  • Lisa S. Blatt, a lawyer with Williams & Connolly who has argued more Supreme Court cases than any other woman, echoed the point in a 2010 article in The Green Bag, a legal journal. “With very limited exceptions,” she wrote, “the women I see arguing before the court are public interest lawyers, public defenders representing the criminally convicted or government lawyers. Translation: Women are doing the same work but for less pay.”

J. Murray in the spotlight

Today's DJ has Justice of 3rd District with lagging caseload may be nearing exit, which reports:

  • Justice William J. Murray Jr. has written no opinions, published or unpublished, since Dec. 8. He turns 65 on Jan. 27, making him eligible for full retirement.
  • Over this same six-week period, his colleagues on the court have filed 14 published opinions. Murray’s name appeared as a concurring vote on one. The 3rd District has also filed 140 unpublished opinions between Dec. 9 and Jan. 17. Murray cast a vote on 12 of them.
  • out of 154 opinions, each signed by three justices, one would expect the average justice to put their name on about 46 of them. But Murray has signed 13, and written none.
Also of in today's DJ Considerations for upcoming panel on Hastings' name change:
  • In 1878 Hastings paid $100,000 in U.S. gold coin to the state's Treasurer to establish a Law Department for the University of California, "that shall forever be known and designated as the Hastings College of the Law." Cal. Ed. Code Section 92200. That law also provides that if the college "ceases to exist," the state must repay Hastings' heirs the $100,000 plus accumulated interest.

Tuesday, January 18, 2022

DJ articles & more

Today's DJ has David Cohen's Criminal Appeals in California, the Nuts and Bolts, and also Moskovitz on appeal in A Story Goes to Court: Part I.
On the appellate podcast front don't miss The California Appellate Law Podcast [episode 22]-- A Proposal to Amend the No-Citation Rule, with H&L's David Ettinger and Dean Bochner.

And today's appellate dismissal of note is this published opinion from 2/7 here (Sanchez v. Westlake Servs.).
On the federal side, see the 9th Circuit's ICTSI Oregon re 1292(b) interlocutory appeals.

Monday, January 17, 2022

Catching up w/LACBA

The December issue of LACBA's LA Lawyer has some great appellate articles:

First, pages 12-13 has an interview with retired Justice Ming Chin, which concludes like this:

A mutual friend wanted you to ask me about my name. I am the youngest of eight children. My brothers and sisters’ names are: Mary, George, Joe, Betty, Jack, Jeanne, and Tom. I have no idea where Ming came from, but I do know that all of them were given two names—one in English and one in Chinese. I was only given Ming.

Second, pages 20-25 to has The 33 Steps: Postgraduate Legal Writing, by appellate specialist Steve Katz.

Friday, January 14, 2022

Today's appellate roundup

Today's DJ has Assessing your chances on appeal: Burdens, Inferences, and Presumptions, by appellate specialist (and former state senator) Noreen Evans.
  • In the appellate court, the appellant has the burden to prove error, regardless of who had the burden of proof in the trial court. Even if the opposing party had the burden of proof in the trial court, the Court of Appeal will indulge in the inferences and presumptions discussed here in order to find that the burden was met and the trial judge's decision was proper.
  • the appellate court indulges in all inferences and presumptions necessary to support the trial court's judgment and will not judge the credibility of the witnesses or reweigh the evidence
  • Also, CLA Litigation Section's newsletter is out, linking to the January 2022 issue of Litigation Update and also providing a Spotlight on the Committee on Appellate Courts:

    The Committee on Appellate Courts was established more than fifty years ago by the State Bar of California and later became a standing committee of CLA’s Litigation Section. Its members include appellate attorneys from a broad range of practice areas and types, including civil and criminal law, large firm attorneys and solo practitioners, government, court, and non-profit attorneys, and academics. The Committee’s mission is to provide attorneys with quality continuing education, to comment on proposed changes to court rules that affect appellate practice in California, and to initiate or support programs that, among other things, provide pro bono appellate assistance and assist pro se litigants on appeal. To this end, the Committee presents webinars on issues relating to appellate practice and is currently planning the 2022 Litigation and Appellate Summit, which is a two-day virtual conference (scheduled for May 13 and 14, 2022) that will feature programs of interest to trial and appellate practitioners throughout the state. (Here is a link to the 2021 Litigation and Appellate Summit program.) The Committee has also formed an access to justice subcommittee that focuses on improving access to the appellate courts for the majority of Californians who cannot afford an attorney in civil cases. To learn more about the Committee on Appellate Courts, please contact the Committee chair, Dean A. Bochner, at dbochner@horvitzlevy.com.
Over on the federal side:
And don't miss a free 90-minute MCLE program on Jan. 27 by BHBA on the Presidential Commission on SCOTUS: A Conversation with Two Commissioners. Register here.
BHBA is honored to have two of the Commission’s members join us for this conversation about the report’s findings: Caroline Fredrickson, Distinguished Visiting Professor from Practice at Georgetown Law and a Senior Fellow at the Brennan Center for Justice and Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego School of Law. The conversation will be moderated by Hon. James Blancarte of the Los Angeles Superior Court.

 

Finally, see Trying Tails of Online Zoom TrialsIn another Zoom court hearing gone awry, pandemic puppy Big Puppa put on a show to be remembered during her owner’s closing arguments.
How virally deep has the "I am not a cat" hearing gone? Well, it's in a panel of the comic book Radiant Black (Image Comics Aug. 2021).

Wednesday, January 12, 2022

McKeown goes senior

Ninth Circuit Judge M. Margaret McKeown to Take Senior Status

United States Circuit Judge M. Margaret McKeown has informed President Joseph R. Biden, Jr., that she will assume senior status effective upon the appointment of her successor. In her letter to President Biden dated Jan. 11, 2022, Judge McKeown noted that she was “privileged to succeed Judge Jerome Farris of Seattle in 1998” and that “It has been a great honor to serve on the Ninth Circuit Court of Appeals for almost 24 years.”

Judge McKeown intends “to render substantial judicial service as a senior judge,” including continuing her “engagement on workplace and ethics issues in the federal judiciary.” She added that she looks forward to doing what she can to “uphold the rule of law and to further the pursuit of equal justice under the law.” 

Law.com has Ninth Circuit Judge McKeown 'Goes Senior,' Leaving Court With 2 Future Vacancies -- 
Judge M. Margaret McKeown is the fifth Ninth Circuit judge to go senior, a form of semi-retirement, since President Joe Biden took office.

Justice Sanchez is now Judge Sanchez!

The NLJ has Senate Confirms Gabriel Sanchez to 9th Circuit

The U.S. Senate confirmed California state Judge Gabriel Sanchez to the U.S. Court of Appeals for the Ninth Circuit on Wednesday in a 52-47 vote. An associate justice on the California Court of Appeal, Sanchez previously served as former Gov. Jerry Brown’s deputy legal affairs secretary.

See News Release
 

How to become a justice + Where we rank

In October the First District launched its judicial mentorship program to develop and recruit qualified and diverse applicants for the state's courts of appeal. BASF's Appellate Section is presenting a free webinar on the AppellateJudicial Mentor Program, featuring a conversation with First District Justices Jackson and Streeter. The webinar will be Thursday, February 10 at noon. Register here. Here's what the flyer says:

Considering applying for an appointment to the First District Court of Appeal? Join us for a conversation with Justices Teri L. Jackson and Jon B. Streeter as they discuss their respective paths to the appellate bench and provide information on the California Judicial Mentor Program (Appellate), which pairs attorneys and trial court judges interested in an appellate court appointment with mentor justices, to demystify the judicial appointment process and to encourage applicants from diverse backgrounds to consider applying to the appellate court bench.

Today's DJ has Merete Rietveld's How Does the US Legal System Rank Internationally?

The WJP surveys thousands of legal experts and practitioners, and over 100,000 household surveys each year to rank countries based on their adherence to the rule of law. The United States currently ranks 27 -- behind South Korea and Uruguay, behind most western European countries, way behind Scandinavia. We fell from 21st to 27th in 2021, a decline greater than any other high-income country. Over the past five years, the U.S.'s ranking has steadily fallen from 2016 when it placed 16 in the world.

Who is this group challenging the popular narrative of American legal exceptionalism? In 2006, then-president of the American Bar Association, William Neukom, founded the WJP to "create knowledge, build awareness, and stimulate action to advance the rule of law worldwide." Its board of directors includes 9th Circuit Judge M. Margaret McKeown and USC Law School Dean William Hubbard.

And here's an unpub from the 5th that can be summed up like this: "79 > 60 = dismissal"

Tuesday, January 11, 2022

Key Developments in CA Appellate Practice 2021


CEB's annual Key Developments in Appellate Practice is now available (90-minute webinar recorded Jan. 6, 2022) with presentations by Justices Hoffstadt and Kim. CEB subscribers can access it via the programs link: 


Speaking of Justice Hoffstadt, today's DJ has his Breadcrumbs or apple seeds?
Some (but not all) judges on occasion seem to place language in their opinions that can serve as breadcrumbs (because the language is meant to reinforce existing precedent) or as apple seeds (because the language can be cited in a subsequent case as justification or support for a new rule of law the judge may wish to be adopted in the latter case).

The Recorder's On Appeals column by CALG's Charles Kagay has Obscure Procedural Nooks and Crannies about the writ of coram vobis.

 

CA Court Budget

There's been plenty of press on the new CA courts budget. Here's The Recorder's article:

Newsom's Proposed Courts Budget Includes Millions for New Judges, Courthouses -- The proposal includes $100 million in "equity funding" aimed at equalizing how revenues are divided among California's 58 trial courts.
Newsom’s proposal also includes new funding for court technology projects, appellate appointed counsel, higher salary and benefit costs for judges, court and branch employees and court data collection. 
“I welcome the governor’s continuing commitment to sustainable funding in his budget proposal for the judicial branch,” Chief Justice Tani Cantil-Sakauye said in a prepared statement. “He clearly recognizes how important equal access to justice is for all Californians.”

J. Sotomayor at Writers Bloc

Writers Bloc and the Skirball Present
U.S. Supreme Court Justice Sonia Sotomayor
Thursday, February 3, 2022
6:00PM PST
Free Registration
Free Registration With a Signed Book: $28

Sometimes it takes a children’s book to remind us of how easy it is to be a kinder person, to be a better person. From the author of the #1 New York Times bestseller Just Ask! comes a fun and meaningful story about making the world–and your community–better, one action at a time, that asks the question: Who will you help today? In her new book, Just Help! How to Build A Better World, a story inspired by her own family’s desire to help others, Sonia Sotomayor takes young readers on a journey through a neighborhood where kids and adults, activists and bus drivers, friends and strangers all help one another to build a better world for themselves and their community. With art by award-winning illustrator Angela Dominguez, this book shows how we can all help make the world a better place each and every day.

  • 83-year-old justice participated in arguments remotely, court says
  • Justice Sotomayor, who has diabetes, has already been doing so
  • Justice Neil Gorsuch has not worn a mask at arguments this month. At argument this week, Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett took theirs off while asking questions. Chief Justice John Roberts and Justice Elena Kagan kept theirs on the entire time.

Stoked at winning a nonsuit?

In this split-decision unpub from 2/1 here, the majority (reversing a nonsuit) says this:

Appellate courts have deemed it especially perilous for a trial court to grant a nonsuit after opening statement because this procedural device effectively takes the case away from the jury before any evidence is received. This case exemplifies the risk of removing a highly fact-intensive issue from the jury’s consideration after a plaintiff has merely set forth a general roadmap of the evidence expected at trial.

Beds v. LinkedIn

 Beds' latest column is Bedsworth: Jobseeking Keeps My Ego in Check

I’m getting help with ego-suppression from some people who are apparently considering not my job title but my actual capabilities. ... LinkedIn has taken to sending me job suggestions. ... LinkedIn does not think I should be going into alternative dispute resolution. ... But they think I could handle the duties of a data entry clerk.