At last night's OCBA Sills Award for Appellate Excellence ceremony, Dean Chemerinsky summed it all up by saying that if you look up mensch in a dictionary, you should see a photo of Justice Fybel.
Wednesday, October 31, 2018
What IS a "respondent"?
"I am SO a respondent!" |
RIP Bill Hancock (from CALG)
In Memoriam: Bill Hancock
It is with great sadness that we announce the passing of Bill Hancock, a founder of the California Appellate Law Group and a widely admired member of the California appellate bar.
Bill spent 16 years as senior research attorney in the California Courts of Appeal for the First and Sixth Appellate Districts, where he worked with a range of judges and analyzed hundreds of appeals under state law and procedure. He was also a founding staff member of the First District Appellate Project in San Francisco. After his tenure with the court, Bill became of counsel to the appellate firm Horvitz & Levy. He opened his own appellate practice in 2004, and co-founded the appellate boutique Eisenberg & Hancock LLP in 2006, where he was managing partner. In 2012, he founded the California Appellate Law Group with Ben Feuer and served as the firm’s first managing principal.
Bill was widely recognized for his appellate skill. He was named a “SuperLawyer” and a “Best Lawyer in America” every year for nearly a decade. Recently, Bill played an important role in CALG’s success in protecting Californians’ public access to beaches. He graduated from UC Hastings College of the Law with Order of the Coif and Thurston Society honors, and was a UC Santa Cruz “Banana Slug” before that, also with honors.
Bill will be remembered with deep fondness not only by the members of the California Appellate Law Group and lawyers throughout California, but also by his wife Jessica, his daughter Justine, his brother Tom, and his sisters Kim and Jane.
Monday, October 29, 2018
CJA hearings set for 11/26
Commission on Judicial Appointments to Consider Five Appointments to Courts of Appeal
Commission hearings set for November 26 in San Francisco.
SAN FRANCISCO—Five public hearings have been scheduled by the Commission on Judicial Appointments for November 26, beginning at 9 a.m. in the Supreme Court Courtroom—350 McAllister Street in San Francisco—to consider the following appointments by Governor Edmund G. Brown, Jr.:
(Scheduled times are approximate)
The hearings will be webcast live here.
The state Constitution specifies that a gubernatorial nomination or appointment to the Supreme Court or a Court of Appeal is “effective when confirmed by the Commission on Judicial Appointments.”
The commission consists of the chief justice of California, the attorney general of California, and the presiding justice of the Court of Appeal of the affected district or, if there are two or more presiding justices, the one who has presided longest or, for a nomination or appointment to the Supreme Court, the presiding justice who has presided the longest on any Court of Appeal.
Appointee Biographies
Justice Stuart R. Pollak would fill the vacancy created by the retirement of Presiding Justice Ignazio J. Ruvolo. Pollak has served as an associate justice in Division Three of the First District Court of Appeal since 2002. He served as a judge at the San Francisco County Superior Court from 1982 to 2002 and held several positions at Howard, Rice, Nemerovski, Canady and Pollak from 1965 to 1982, including partner and associate. He served as an attorney at the U.S. Department of Justice from 1963 to 1966 and served as a law clerk for the Honorable Earl Warren, the Honorable Stanley Reed and the Honorable Harold Burton at the U.S. Supreme Court from 1962 to 1963. Pollak earned a Juris Doctor degree from Harvard Law School and a Bachelor of Arts degree from Stanford University.
Gabriel P. Sanchez would fill the vacancy created by the retirement of Justice Robert L. Dondero effective October 31, 2018. Sanchez has served as a deputy legal affairs secretary in the Office of Governor Edmund G. Brown Jr. since 2012. He served as a deputy attorney general at the California Department of Justice, Office of the Attorney General from 2011 to 2012 and was an associate at Munger, Tolles and Olson LLP from 2006 to 2011. Sanchez served as a law clerk for the Honorable Richard A. Paez at the U.S. Court of Appeals, Ninth Circuit from 2005 to 2006. He earned a Juris Doctor degree from Yale Law School, a Master of Philosophy degree from the University of Cambridge and a Bachelor of Arts degree from Yale College.
Carin T. Fujisaki would fill the vacancy created by the elevation of Justice Peter J. Siggins to presiding justice, Division Three of the First District Court of Appeal. Fujisaki has served as principal attorney to the chief justice at the California Supreme Court since 2015, where she was a judicial staff attorney from 1991 to 2014 and a staff attorney from 1990 to 1991. She was an associate at Howard, Rice, Nemerovski, Canady, Robertson and Falk from 1986 to 1990 and a research attorney at the San Francisco County Superior Court from 1985 to 1986. Fujisaki earned a Juris Doctor degree from the University of California, Hastings College of the Law and a Bachelor of Arts degree from the University of California, Los Angeles.
Peter A. Krause would fill the vacancy created by the retirement of Justice George W. Nicholson. Krause has served as legal affairs secretary in the Office of Governor Edmund G. Brown Jr. since 2014, where he was chief deputy legal affairs secretary from 2013 to 2014. He served in several positions at the California Department of Justice, Office of the Attorney General from 2007 to 2013, including supervising deputy attorney general and deputy attorney general. Krause was an attorney at the Judicial Council of California, Office of the General Counsel from 2005 to 2007 and an associate at Sheppard, Mullin, Richter and Hampton from 1996 to 2005. He earned a Juris Doctor degree from Loyola Law School, Los Angeles and a Bachelor of Arts degree from the University of California, Berkeley.
Frank J. Menetrez would fill the vacancy of a new position created on July 1, 2018. Menetrez has served as a judge at the Los Angeles County Superior Court since 2015. He served as an appellate judicial attorney at the Second District Court of Appeal from 2005 to 2015. He was an associate at Horvitz and Levy from 2004 to 2005 and at Sidley Austin from 2001 to 2004. Menetrez served as a law clerk for the Honorable A. Wallace Tashima at the U.S. Court of Appeals, Ninth Circuit from 2000 to 2001. He earned a Juris Doctor degree from the University of California, Los Angeles School of Law, Doctor of Philosophy and Master of Arts degrees from the University of California, Los Angeles and a Bachelor of Arts degree from Johns Hopkins University.
Testimony and Comment
Persons who wish to testify or comment on the appointments must submit their information for receipt by the commission no later than 5 p.m. on November 19.
Anyone wishing to testify before the commission must state that request in writing and include a summary of the facts on which any testimony or opinion will be based.
The commission’s address is:
Commission on Judicial Appointments
c/o Chief Justice of California
Supreme Court of California
350 McAllister Street
San Francisco, California 94102
Attention: Secretary to the Commission
The guidelines for the Commission on Judicial Appointments are published as an appendix to the California Rules of Court and are available on the California Courts website.
(Scheduled times are approximate)
9-9:30 a.m.:
Justice Stuart Pollak, as Presiding Justice of the Court of Appeal, First Appellate District, Division Four (San Francisco)
| |
9:45-10:15 a.m.:
Gabriel Sanchez, as Associate Justice of the Court of Appeal, First Appellate District, Division One (San Francisco)
| |
10:30-11:00 a.m.:
Carin Fujisaki, as Associate Justice of the Court of Appeal, First Appellate District, Division Three (San Francisco)
| |
11:15 to 11:45 a.m.:
Peter Krause, as Associate Justice of the Court of Appeal, Third Appellate District (Sacramento)
| |
Noon to 12:30 p.m.:
Frank Menetrez, as Associate Justice of the Court of Appeal, Fourth Appellate District, Division Two (Riverside)
|
The state Constitution specifies that a gubernatorial nomination or appointment to the Supreme Court or a Court of Appeal is “effective when confirmed by the Commission on Judicial Appointments.”
The commission consists of the chief justice of California, the attorney general of California, and the presiding justice of the Court of Appeal of the affected district or, if there are two or more presiding justices, the one who has presided longest or, for a nomination or appointment to the Supreme Court, the presiding justice who has presided the longest on any Court of Appeal.
Appointee Biographies
Justice Stuart R. Pollak would fill the vacancy created by the retirement of Presiding Justice Ignazio J. Ruvolo. Pollak has served as an associate justice in Division Three of the First District Court of Appeal since 2002. He served as a judge at the San Francisco County Superior Court from 1982 to 2002 and held several positions at Howard, Rice, Nemerovski, Canady and Pollak from 1965 to 1982, including partner and associate. He served as an attorney at the U.S. Department of Justice from 1963 to 1966 and served as a law clerk for the Honorable Earl Warren, the Honorable Stanley Reed and the Honorable Harold Burton at the U.S. Supreme Court from 1962 to 1963. Pollak earned a Juris Doctor degree from Harvard Law School and a Bachelor of Arts degree from Stanford University.
Gabriel P. Sanchez would fill the vacancy created by the retirement of Justice Robert L. Dondero effective October 31, 2018. Sanchez has served as a deputy legal affairs secretary in the Office of Governor Edmund G. Brown Jr. since 2012. He served as a deputy attorney general at the California Department of Justice, Office of the Attorney General from 2011 to 2012 and was an associate at Munger, Tolles and Olson LLP from 2006 to 2011. Sanchez served as a law clerk for the Honorable Richard A. Paez at the U.S. Court of Appeals, Ninth Circuit from 2005 to 2006. He earned a Juris Doctor degree from Yale Law School, a Master of Philosophy degree from the University of Cambridge and a Bachelor of Arts degree from Yale College.
Carin T. Fujisaki would fill the vacancy created by the elevation of Justice Peter J. Siggins to presiding justice, Division Three of the First District Court of Appeal. Fujisaki has served as principal attorney to the chief justice at the California Supreme Court since 2015, where she was a judicial staff attorney from 1991 to 2014 and a staff attorney from 1990 to 1991. She was an associate at Howard, Rice, Nemerovski, Canady, Robertson and Falk from 1986 to 1990 and a research attorney at the San Francisco County Superior Court from 1985 to 1986. Fujisaki earned a Juris Doctor degree from the University of California, Hastings College of the Law and a Bachelor of Arts degree from the University of California, Los Angeles.
Peter A. Krause would fill the vacancy created by the retirement of Justice George W. Nicholson. Krause has served as legal affairs secretary in the Office of Governor Edmund G. Brown Jr. since 2014, where he was chief deputy legal affairs secretary from 2013 to 2014. He served in several positions at the California Department of Justice, Office of the Attorney General from 2007 to 2013, including supervising deputy attorney general and deputy attorney general. Krause was an attorney at the Judicial Council of California, Office of the General Counsel from 2005 to 2007 and an associate at Sheppard, Mullin, Richter and Hampton from 1996 to 2005. He earned a Juris Doctor degree from Loyola Law School, Los Angeles and a Bachelor of Arts degree from the University of California, Berkeley.
Frank J. Menetrez would fill the vacancy of a new position created on July 1, 2018. Menetrez has served as a judge at the Los Angeles County Superior Court since 2015. He served as an appellate judicial attorney at the Second District Court of Appeal from 2005 to 2015. He was an associate at Horvitz and Levy from 2004 to 2005 and at Sidley Austin from 2001 to 2004. Menetrez served as a law clerk for the Honorable A. Wallace Tashima at the U.S. Court of Appeals, Ninth Circuit from 2000 to 2001. He earned a Juris Doctor degree from the University of California, Los Angeles School of Law, Doctor of Philosophy and Master of Arts degrees from the University of California, Los Angeles and a Bachelor of Arts degree from Johns Hopkins University.
Testimony and Comment
Persons who wish to testify or comment on the appointments must submit their information for receipt by the commission no later than 5 p.m. on November 19.
Anyone wishing to testify before the commission must state that request in writing and include a summary of the facts on which any testimony or opinion will be based.
The commission’s address is:
Commission on Judicial Appointments
c/o Chief Justice of California
Supreme Court of California
350 McAllister Street
San Francisco, California 94102
Attention: Secretary to the Commission
The guidelines for the Commission on Judicial Appointments are published as an appendix to the California Rules of Court and are available on the California Courts website.
9th Circuit Practice Update!
Filers of emergency motions can now provide notice to the court via email rather than phone call
Per Circuit Rule 27-3, if a movant needs relief in less than 21 days to avoid irreparable harm, the movant must notify the court. Starting on Monday, October 29, 2018, filers can either call 415.355.8020 and leave a voicemail or send an email to emergency@ca9.uscourts.gov.
Notice to the court should include at a minimum:
Notice to the court should include at a minimum:
o Your case number (if you have one)
o Your name and contact info, including best phone number
o Date that relief is needed
o Date that emergency motion will be filed
o Date that relief is needed
o Date that emergency motion will be filed
Ideally, notice would also include:
o Description of the harm that will occur absent relief
o Explanation of why the harm irreparable
o Opposing counsel’s name and contact info, including best phone number
o Opposing counsel’s name and contact info, including best phone number
If you leave a voicemail or send an email during business hours, the court will let you know promptly if further information about your emergency motion is needed.
Friday, October 26, 2018
Governor Brown Appoints 5 Court of Appeal Justices!
Governor Edmund G. Brown
Jr. today announced the appointment of Gabriel P. Sanchez as associate justice,
Division One, Carin T. Fujisaki as associate justice, Division Three and
Justice Stuart R. Pollak as presiding justice, Division Four of the First
District Court of Appeal; Peter A. Krause as associate justice of the Third
District Court of Appeal; and Frank J. Menetrez as associate justice, Division
Two of the Fourth District Court of Appeal.
Gabriel P. Sanchez, 42, of Oakland, has been appointed associate justice, Division One of the First District Court of Appeal. Sanchez has served as a deputy legal affairs secretary in the Office of Governor Edmund G. Brown Jr. since 2012. He served as a deputy attorney general at the California Department of Justice, Office of the Attorney General from 2011 to 2012 and was an associate at Munger, Tolles and Olson LLP from 2006 to 2011. Sanchez served as a law clerk for the Honorable Richard A. Paez at the U.S. Court of Appeals, Ninth Circuit from 2005 to 2006. He earned a Juris Doctor degree from Yale Law School, a Master of Philosophy degree from the University of Cambridge and a Bachelor of Arts degree from Yale College. Sanchez will fill the vacancy created by the retirement of Justice Robert L. Dondero effective October 31, 2018. This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and Senior Presiding Justice J. Anthony Kline. Subject to being confirmed, Sanchez plans to continue serving in his current position in the Governor’s Office until the end of the year. He will be the first male Latino justice ever appointed to the First District Court of Appeal, if confirmed. Sanchez is a Democrat.
Gabriel P. Sanchez, 42, of Oakland, has been appointed associate justice, Division One of the First District Court of Appeal. Sanchez has served as a deputy legal affairs secretary in the Office of Governor Edmund G. Brown Jr. since 2012. He served as a deputy attorney general at the California Department of Justice, Office of the Attorney General from 2011 to 2012 and was an associate at Munger, Tolles and Olson LLP from 2006 to 2011. Sanchez served as a law clerk for the Honorable Richard A. Paez at the U.S. Court of Appeals, Ninth Circuit from 2005 to 2006. He earned a Juris Doctor degree from Yale Law School, a Master of Philosophy degree from the University of Cambridge and a Bachelor of Arts degree from Yale College. Sanchez will fill the vacancy created by the retirement of Justice Robert L. Dondero effective October 31, 2018. This position requires confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Xavier Becerra and Senior Presiding Justice J. Anthony Kline. Subject to being confirmed, Sanchez plans to continue serving in his current position in the Governor’s Office until the end of the year. He will be the first male Latino justice ever appointed to the First District Court of Appeal, if confirmed. Sanchez is a Democrat.
Carin
T. Fujisaki, 59, of Walnut Creek, has been appointed associate justice,
Division Three of the First District Court of Appeal. Fujisaki has served as
principal attorney to the chief justice at the California Supreme Court since
2015, where she was a judicial staff attorney from 1991 to 2014 and a staff
attorney from 1990 to 1991. She was an associate at Howard, Rice, Nemerovski,
Canady, Robertson and Falk from 1986 to 1990 and a research attorney at the San
Francisco County Superior Court from 1985 to 1986. Fujisaki earned a Juris
Doctor degree from the University of California, Hastings College of the Law
and a Bachelor of Arts degree from the University of California, Los Angeles.
She fills the vacancy created by the elevation of Justice Peter J. Siggins to
presiding justice, Division Three of the First District Court of Appeal. This
position requires confirmation by the Commission on Judicial Appointments. The
Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General
Xavier Becerra and Senior Presiding Justice J. Anthony Kline. Fujisaki is a
Democrat.
Stuart R. Pollak, 81,
of San Francisco, has been appointed presiding justice, Division Four of the
First District Court of Appeal. Pollak has served as an associate justice in
Division Three of the First District Court of Appeal since 2002. He served as a
judge at the San Francisco County Superior Court from 1982 to 2002 and held
several positions at Howard, Rice, Nemerovski, Canady and Pollak from 1965 to
1982, including partner and associate. He served as an attorney at the U.S.
Department of Justice from 1963 to 1966 and served as a law clerk for the
Honorable Earl Warren, the Honorable Stanley Reed and the Honorable Harold
Burton at the U.S. Supreme Court from 1962 to 1963. Pollak earned a Juris
Doctor degree from Harvard Law School and a Bachelor of Arts degree from
Stanford University. He fills the vacancy created by the retirement of
Presiding Justice Ignazio J. Ruvolo. This position requires confirmation by the
Commission on Judicial Appointments. The Commission consists of Chief Justice
Tani Cantil-Sakauye, Attorney General Xavier Becerra and Senior Presiding
Justice J. Anthony Kline. Pollak is a Democrat.
Peter
A. Krause, 49, of Sacramento, has been appointed associate justice of the Third
District Court of Appeal. Krause has served as legal affairs secretary in the
Office of Governor Edmund G. Brown Jr. since 2014, where he was chief deputy
legal affairs secretary from 2013 to 2014. He served in several positions at
the California Department of Justice, Office of the Attorney General from 2007
to 2013, including supervising deputy attorney general and deputy attorney
general. Krause was an attorney at the Judicial Council of California, Office
of the General Counsel from 2005 to 2007 and an associate at Sheppard, Mullin,
Richter and Hampton from 1996 to 2005. He earned a Juris Doctor degree from
Loyola Law School, Los Angeles and a Bachelor of Arts degree from the University
of California, Berkeley. He fills the vacancy created by the retirement of
Justice George W. Nicholson. This position requires confirmation by the
Commission on Judicial Appointments. The Commission consists of Chief Justice
Tani Cantil-Sakauye, Attorney General Xavier Becerra and Presiding Justice
Vance W. Raye. Subject to being confirmed, Krause plans to continue serving in
his current position in the Governor’s Office until the end of the year. Krause
is registered without party preference.
Frank
J. Menetrez, 52, of Claremont, has been appointed associate justice, Division
Two of the Fourth District Court of Appeal. Menetrez has served as a judge at
the Los Angeles County Superior Court since 2015. He served as an appellate
judicial attorney at the Second District Court of Appeal from 2005 to 2015. He
was an associate at Horvitz and Levy from 2004 to 2005 and at Sidley Austin
from 2001 to 2004. Menetrez served as a law clerk for the Honorable A. Wallace
Tashima at the U.S. Court of Appeals, Ninth Circuit from 2000 to 2001. He
earned a Juris Doctor degree from the University of California, Los Angeles
School of Law, Doctor of Philosophy and Master of Arts degrees from the
University of California, Los Angeles and a Bachelor of Arts degree from Johns
Hopkins University. He fills the vacancy of a new position created on July 1,
2018. This position requires confirmation by the Commission on Judicial
Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye,
Attorney General Xavier Becerra and Senior Presiding Justice Manuel A. Ramirez.
Menetrez is a Democrat.
The
compensation for each of these positions is $228,918.
Undue influence over law clerks?
Originalism anyone? |
Thursday, October 25, 2018
WLALA Tips
WLALA's DTLA Mentoring Committee Presents "Tips from the Bench: What to Do and Not to Do in Court," in Judge Dolly Gee's chambers on November 5. In addition to Judge Gee, the panel will include LASC Judges Laura Seigle and Lisa Jaskol, who have recently served as pro tem jusices in the Second District and who will offer tips for appearing in appellate courts. Details here.
Wednesday, October 24, 2018
Beds on Elections
The Recorder has Justice Bedsworth's latest column: Voting Rights ... and Wrongs, in which he explains that "Recent events have established that for all our legislating and regulating and investigating and cogitating, elections are not yet an exact science." He relates the Boaty McBoatface debacle and his concluding "public service message: Next month, America will go to the polls for its most important election since 1932. Please get out and vote. Please. And please do not vote for Congress McCongressface."
BASF will be presenting a 2018 SCOTUS Preview featuring Judge Berzon and Professor Little next Tuesday. Details here.
BASF will be presenting a 2018 SCOTUS Preview featuring Judge Berzon and Professor Little next Tuesday. Details here.
It's Miller time
Today's DJ profile is Picture of Calm: Colleagues say 4th District Court of Appeal Justice Douglas Miller exudes a quiet confidence. (The DJ last profiled Justice Miller in March 2009. Riverside Lawyer magazine also profiled him in 2006 here.) Justice Miller "fell into the legal world haphazardly" but knew right away that law "just fit" with his brain and personality. During his first oral argument as a justice, he realized that he was "the least prepared person in the room." This changed his approach to become "more knowledgeable about the issues and the cases and the legislation." Those appearing before Justice Miller "should be prepared to answer questions on three specific topics: pure legal precedent issues, the policy behind those legal precedents and the practical impact of what the court is being asked to do."
Tuesday, October 23, 2018
Vote to Retain!
As reported in the MetNews, the LA County Bar urges voters to vote to retain the appellate justices on the ballot:
Supreme
Court members on the ballot are Carol Corrigan and Leondra Kruger. Members of
the Court of Appeal for this district seeking retention are Presiding Justices
Arthur Gilbert, Elwood Lui, Nora M. Manella and Patricia A. Bigelow, as well as
Justices Anne H. Egerton, Carl H. Moor, Dorothy C. Kim, Gail R. Feuer, Halim
Dhanidina, Helen Bendix, John L. Segal, Lamar W. Baker, Luis A. Lavin, Martin
J. Tangemen, Thomas Willhite, Victoria G. Chaney, and Victoria M. Chavez.
Monday, October 22, 2018
1st DCA pro tem update
Judge Elizabeth Lee, Superior Court of California, County of San Mateo, will be sitting Pro Tem in Division Four through November 5, 2018.
AP reports: Sandra Day O’Connor withdraws from public life. See more (including her letter to America) here.
Be sure to get the 2019 California Courts Calendar: Keep track of oral arguments, council meetings, and court holidays.
Be sure to get the 2019 California Courts Calendar: Keep track of oral arguments, council meetings, and court holidays.
Some Thoughts about Oral Argument
The Summer/Fall 2018 ABTL-Los Angeles newsletter contains an article by H&L's David Axelrad titled Some Thoughts About Oral Argument in the California Court of Appeal. Here are some tidbits:
- "only 14 states give parties to an appeal a right to oral argument. In all other states and in the federal system, the appellate courts have authority to dispense with oral argument"
- The effectiveness and value of oral argument in California could be improved if the courts would expand or limit oral argument as befits the given case.
- Effectiveness also increases when courts provide a preview of the court's thinking via a focus letter or tentative opinion.
- Oral argument is valuable and "can and does change minds about the proper outcome of an appeal."
Pleading paper is dumb. Pass it on.
Appellate practitioners have long known that pleading paper is dumb. Now perhaps more trial courts will get the message in light of Judge Chhabria's standing order declaring a preference for plain paper. See Judge: Enough With the Numbered Pleading Paper, Already?! 'This is the 21st Century'
Law360 reports that on Friday, SCOTUS "issued an order handing over Justice Elena Kagan’s Seventh Circuit assignment, which she had held since 2010, to newly confirmed Justice Brett Kavanaugh. The change pared down Justice Kagan’s circuit court assignments from two to one — she was in charge of the Sixth Circuit and Seventh Circuit and is now responsible for the Ninth Circuit, which was previously held by Justice Anthony Kennedy."
In the WSJ: Bryan A. Garner reviews “Ruth Bader Ginsburg: A Life” by Jane Sherron De Hart.
Concerned about the proposed rules for capital habeas corpus / Prop 66?
Well, the proposed rules are now posted for comment, with a deadline of Monday, November 19. http://www.courts.ca.gov/documents/SP18-21.pdf (courts of appeal) and http://www.courts.ca.gov/documents/SP18-22.pdf (superior courts).
It's typical to see an appellant (especially a pro per) lose an appeal for failing to provide an adequate record. But it's less typical to see a state agency choke like this. But it does happen, as in this unpub'd case here from 4/1, in which the DMV failed to designate the administrative record on appeal and instead "improperly placed only portions of the administrative record in its appendix in violation of the applicable rules of court, while leaving out critical portions of the record." Oops.
Law360 reports that on Friday, SCOTUS "issued an order handing over Justice Elena Kagan’s Seventh Circuit assignment, which she had held since 2010, to newly confirmed Justice Brett Kavanaugh. The change pared down Justice Kagan’s circuit court assignments from two to one — she was in charge of the Sixth Circuit and Seventh Circuit and is now responsible for the Ninth Circuit, which was previously held by Justice Anthony Kennedy."
In the WSJ: Bryan A. Garner reviews “Ruth Bader Ginsburg: A Life” by Jane Sherron De Hart.
Concerned about the proposed rules for capital habeas corpus / Prop 66?
Well, the proposed rules are now posted for comment, with a deadline of Monday, November 19. http://www.courts.ca.gov/documents/SP18-21.pdf (courts of appeal) and http://www.courts.ca.gov/documents/SP18-22.pdf (superior courts).
It's typical to see an appellant (especially a pro per) lose an appeal for failing to provide an adequate record. But it's less typical to see a state agency choke like this. But it does happen, as in this unpub'd case here from 4/1, in which the DMV failed to designate the administrative record on appeal and instead "improperly placed only portions of the administrative record in its appendix in violation of the applicable rules of court, while leaving out critical portions of the record." Oops.
Wednesday, October 17, 2018
SCOTUS amicus data
Check out Supreme Court Amicus Curiae Review: 'Friends of the Court' Roared Back in 2017–18 Term: Arnold & Porter’s Appellate and Supreme Court practice review the 2017-18 amicus curiae docket.
- In 2017–18, amici filed briefs in every argued case, surpassing the past seven terms where participation rates ranged from 92 to 98 percent. Amici also filed more briefs.
- The return of mega cases also upped the number of amicus briefs filed in a single proceeding. “Cases with thirty or more amicus briefs are no longer particularly rare, and the highest-profile cases see amicus filing reaching the triple digits.” Aaron-Andrew P. Bruhl & Adam Feldman, Separating the Amicus Wheat from Chaff, 106 Georgetown L. J. Online 135, 135 (2017). In 2016–17, with fewer blockbuster cases on the docket, the highpoint was 35 briefs in a single case, a seven-term low. But in 2017–18, amici filed 95 briefs in Masterpiece Cakeshop, involving a baker’s refusal to create a wedding cake for a same-sex marriage. (One creative amicus brief included color photographs of elaborate wedding cakes to illustrate their artistry.) And amici filed 73 briefs in Trump v. Hawaii, involving the president’s immigration travel ban.
Also of note, last week's On Appeals column in The Recorder was If a Court Reporter Isn't There, Is It in the Record?
Tuesday, October 16, 2018
DJ Podcast by Ellis Horvitz
Ellis Horvitz, founder of Horvitz & Levy and pioneer of
appellate-focused legal practice, was honored Friday October 5, 2018 as the inaugural inductee
to the California Lawyers Association's Appellate Lawyer Hall of Fame. He spoke with the DJ to share thoughts on his life and practice. Listen to the podcast here:
|
Cal Supremes get ahead of themselves!
Much has been written about how the California Supreme Court recused itself in the judicial pay case involving retired Justice Mallano as the named plaintiff. See, e.g., here and here. But a few have also noticed that the order (posted on the Court's website under "Of Current Interest" [see below]) is file-stamped October 15, 2019. [10/18/18 update: The file-stamp date has now been corrected.]
Court order in Mallano v. Chiang, et al. (Oct 15, 2018)
"The justices of this court, having determined recusal is appropriate in the present posture of the above-captioned matter, hereby recuse themselves." Case link: Mallano v. Chiang, et al., S250379.
As for looking backwards, check out A Year in Review at the California Supreme Court (Sept. 1, 2017 to Aug. 31, 2018), which includes a stat pack!
Also of note: the CLA Litigation Section October 2018 Litigation Update is available now!
Court order in Mallano v. Chiang, et al. (Oct 15, 2018)
"The justices of this court, having determined recusal is appropriate in the present posture of the above-captioned matter, hereby recuse themselves." Case link: Mallano v. Chiang, et al., S250379.
As for looking backwards, check out A Year in Review at the California Supreme Court (Sept. 1, 2017 to Aug. 31, 2018), which includes a stat pack!
Also of note: the CLA Litigation Section October 2018 Litigation Update is available now!
9th Circuit gets another Judge Nelson!
Last week the Senate confirmed Idaho Attorney Ryan Nelson to the 9th Circuit. The Court's full News Release is here:
Judge Nelson, who is expected to maintain chambers in Idaho, was nominated to the court on May 10, 2018. After appearing before the Senate Judiciary Committee on July 11, 2018, his nomination was reported to the Senate floor on September 13, 2018. He fills a judgeship vacant since August 11, 2018, when Judge N. Randy Smith of Pocatello, Idaho, assumed senior status.
Prior to his appointment to the bench, Judge Nelson has served as general counsel of Melaleuca, Inc., based in Idaho Falls since 2009. He served previously as special counsel for U.S. Supreme Court nominations to the Ranking Member of the Senate Judiciary Committee in 2009. He also served as deputy general counsel to the White House Office of Management and Budget, from 2008 to 2009, and deputy assistant attorney general in the Environment and Natural Resources Division of the U.S. Department of Justice from 2006 to 2008. Earlier in his career, Mr. Nelson engaged in private practice in the Washington, D.C., office of Sidley Austin LLP from 2001 to 2006.
Born in Idaho Falls, Judge Nelson received his B.A. from Brigham Young University in 1996 and his J.D. from BYU Law School in 1999, graduating with honors and inducted into the Order of the Coif. While in law school, he was a lead articles editor of the BYU Law Review. Following law school, he served as a law clerk to Judge Karen LeCraft Henderson of the U.S. Court of Appeals for the District of Columbia Circuit, from 1999 to 2000, and to Judges Charles N. Brower and Richard M. Mosk of the Iran-U.S. Claims Tribunal at The Hague from 2000 to 2001.
Judge Nelson, who is expected to maintain chambers in Idaho, was nominated to the court on May 10, 2018. After appearing before the Senate Judiciary Committee on July 11, 2018, his nomination was reported to the Senate floor on September 13, 2018. He fills a judgeship vacant since August 11, 2018, when Judge N. Randy Smith of Pocatello, Idaho, assumed senior status.
Prior to his appointment to the bench, Judge Nelson has served as general counsel of Melaleuca, Inc., based in Idaho Falls since 2009. He served previously as special counsel for U.S. Supreme Court nominations to the Ranking Member of the Senate Judiciary Committee in 2009. He also served as deputy general counsel to the White House Office of Management and Budget, from 2008 to 2009, and deputy assistant attorney general in the Environment and Natural Resources Division of the U.S. Department of Justice from 2006 to 2008. Earlier in his career, Mr. Nelson engaged in private practice in the Washington, D.C., office of Sidley Austin LLP from 2001 to 2006.
Born in Idaho Falls, Judge Nelson received his B.A. from Brigham Young University in 1996 and his J.D. from BYU Law School in 1999, graduating with honors and inducted into the Order of the Coif. While in law school, he was a lead articles editor of the BYU Law Review. Following law school, he served as a law clerk to Judge Karen LeCraft Henderson of the U.S. Court of Appeals for the District of Columbia Circuit, from 1999 to 2000, and to Judges Charles N. Brower and Richard M. Mosk of the Iran-U.S. Claims Tribunal at The Hague from 2000 to 2001.
Thursday, October 4, 2018
Cal Supreme Court Historical Society Event at LA Library
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Justice Collins to receive BHBA's Ron George Award
The Beverly Hills Bar Association will confer its Ronald M. George Award for Judicial Excellence on 2/4's Justice Collins at its 9th Annual Litigation Awards Dinner on February 19, 2019. Details here.
CJEO ruling on Appellate-Superior Court Communication
The Supreme Court Committee on Judicial Ethics Opinions (CJEO) advised that an appellate court administrative presiding justice or presiding justice cannot contact a superior court presiding judge regarding misconduct by a superior court research attorney related to a pending appellate matter.
In a summary of oral advice issued to an appellate justice and posted Thursday, the committee advised that because there was sufficient time to petition the United States Supreme Court seeking review of the appellate decision, the matter remained pending within the meaning of the Code of Judicial Ethics. Therefore, communication between the presiding justice and a superior court presiding judge would be an impermissible ex parte communication.
The committee also advised that the presiding justice had an affirmative duty to take appropriate corrective action if the justice had personal knowledge that an attorney committed misconduct or violated any provision the Rules of Professional Conduct. In most instances, appropriate corrective action can include communication with the attorney or reporting the violation to the presiding judge. However, in this instance, such communication was a prohibited ex parte communication on a pending matter. Therefore, the committee advised that the presiding justice could report the misconduct to the State Bar, which is the authority responsible for attorney disciplinary proceedings.
CJEO summarizes its oral advice and posts the summaries on the CJEO website for the benefit of the bench and public.
CJEO is an independent committee appointed by the Supreme Court to help inform the judiciary and the public concerning judicial ethics topics. CJEO was established as part of the court’s constitutional responsibility to guide the conduct of judges and judicial candidates. (Cal. Const., art. VI, § 18, subd. (m).) In making appointments to serve on CJEO, the court selects members of the bench with a strong background in judicial ethics and diverse courtroom experience. The current 12 CJEO members are justices, judges, a commissioner, and a retired bench officer who have served in courts of various sizes throughout the state.
CJEO publishes formal opinions, issues confidential informal opinions, and provides oral advice on proper judicial conduct pursuant to the California Code of Judicial Ethics and other authorities. (Cal. Rules of Court, rule 9.80(e)(1).) CJEO acts independently of the Supreme Court, the Commission on Judicial Performance, the Judicial Council, the Administrative Office of the Courts, and all other entities. (Rule 9.80(b).)
In a summary of oral advice issued to an appellate justice and posted Thursday, the committee advised that because there was sufficient time to petition the United States Supreme Court seeking review of the appellate decision, the matter remained pending within the meaning of the Code of Judicial Ethics. Therefore, communication between the presiding justice and a superior court presiding judge would be an impermissible ex parte communication.
The committee also advised that the presiding justice had an affirmative duty to take appropriate corrective action if the justice had personal knowledge that an attorney committed misconduct or violated any provision the Rules of Professional Conduct. In most instances, appropriate corrective action can include communication with the attorney or reporting the violation to the presiding judge. However, in this instance, such communication was a prohibited ex parte communication on a pending matter. Therefore, the committee advised that the presiding justice could report the misconduct to the State Bar, which is the authority responsible for attorney disciplinary proceedings.
CJEO summarizes its oral advice and posts the summaries on the CJEO website for the benefit of the bench and public.
CJEO is an independent committee appointed by the Supreme Court to help inform the judiciary and the public concerning judicial ethics topics. CJEO was established as part of the court’s constitutional responsibility to guide the conduct of judges and judicial candidates. (Cal. Const., art. VI, § 18, subd. (m).) In making appointments to serve on CJEO, the court selects members of the bench with a strong background in judicial ethics and diverse courtroom experience. The current 12 CJEO members are justices, judges, a commissioner, and a retired bench officer who have served in courts of various sizes throughout the state.
CJEO publishes formal opinions, issues confidential informal opinions, and provides oral advice on proper judicial conduct pursuant to the California Code of Judicial Ethics and other authorities. (Cal. Rules of Court, rule 9.80(e)(1).) CJEO acts independently of the Supreme Court, the Commission on Judicial Performance, the Judicial Council, the Administrative Office of the Courts, and all other entities. (Rule 9.80(b).)
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