Chief Justice Roberts Issues 2019 Year-End Report

Close out your appellate year with a reading of Chief Justice Roberts' 2019 Year-End Report on the Federal Judiciary

• we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education, and I am pleased to report that the judges and staff of our federal courts are taking up the challenge. 
• Each generation has an obligation to pass on to the next, not only a fully functioning government responsive to the needs of the people, but the tools to understand and improve it. 

2d DCA pro tem update

The following are currently sitting on assignment:

• Judge Gregory J. Weingart of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until February 29, 2020
• Judge Kim Garlin Dunning (Retired) of the Orange County Superior Court, will be sitting Pro-Tem in Division Four until completion of all assigned matters.

9th Cir. 2019 review

In today's DJ Dykema's Jimmy Azadian presents The top 5 9th Circuit civil cases of 2019, which notes "all 29 authorized 9th Circuit judgeships are now filled. The final two vacancies were filled earlier this month with the Senate's confirmation of Patrick Bumatay to a California-based seat and Lawrence VanDyke to a Nevada-based seat."

Beds at his best!

Beds ends the year on a hilarious note with Government Issued Caviar


And don't miss 4 Cases in California Where Lawyers Irked the Judge in 2019

The MetNews has Superior Court Judge Edward Ferns to Retire (Ferns served as a pro tem on the Court of Appeal in 2012-14.)

4/1 Central Staff job opening

Looking for appellate work in America's Finest City? Division One in San Diego is now accepting applications for a Senior Appellate Court Attorney for Central Staff. The job posting can be found on the Court’s career website under JOB ID 5133.

Getting out the vote

Today's DJ has One lawyer’s quest to teach America’s high schoolers about the democratic process about appellate lawyer Laura Brill's efforts to preregister 16- and 17-year olds to vote through her nonprofit The Civics Center.

Brill's push to get young people involved first began in 2017 when she came upon Senate Bill 113, a law Gov. Jerry Brown signed in 2014 that allows teenagers to vote once they turn 16. Known for her appellate work at Kendall Brill & Kelly LLP, often dealing with cases involving voting rights and election laws, Brill said she was taken aback."I found it so stunning," she said. "Here I was, a mother of a 16-year-old, a lawyer who does voting rights related work, and I had never heard of this law."She then came across a law in the California Education Code devoting the last two weeks in September to voting registration awareness in high schools and tasking teachers to become registration coordinators. When Brill reached out to the Secretary of State for a list of schools with coordinators, she learned 20% complied with the law statewide, she said.

A year of confirmations & creative opinions

Law360 has The 7 Most Divisive Judicial Confirmations Of 2019 (which includes Lawrence VanDyke to the Ninth Circuit, whose "confirmation hearing may have been the most dramatic of 2019.").

In a banner year for judicial confirmations, senators in 2019 signed off on 20 circuit judges and 80 district judges as President Donald Trump clinched his 185th appointment — but in reaching that milestone, Majority Leader Mitch McConnell faced a number of heated battles along the way.

[And see How Trump is filling the liberal 9th Circuit with conservatives]

Law360 also offers Poetic Justice: How Judges Got Creative In 2019 (which includes noting Ninth Circuit Judge Owens Game of Thrones reference).

And see Supreme Court Attorneys Give Back:

In 2019, California Supreme Court and First Appellate District attorneys supported asylum cases for unaccompanied refugee children; volunteered at clinics for the formerly incarcerated; and served as mock trial judges for student competitions.

And Xmas comes early for four new superior court judges just appointed here.

Here's an interesting unpub'd decision with an unusual heading in the facts:
"A. Something Happens on March 17, 2016."
Can't disagree with that!

Destruction of pre-2009 records

Notice of Destruction of Court Records

The California Court of Appeal, Second Appellate District hereby announces its intention to destroy the following civil records pursuant to California Rules of Court, rule 10.1028(d)(1). Records to be destroyed:

All civil and juvenile cases with a disposition date prior to December 31, 2008.

In the event anyone knows of any reason why a particular case, among the above numbered cases, should be retained, notify Daniel P. Potter, Clerk of the Court in writing setting forth in detail the reason(s) for retention. All requests must be received by January 20, 2020.

Clerk of the Court
Court of Appeal
Second Appellate District
300 South Spring Street
Second Floor, North Tower
Los Angeles, CA 90013

Dec. 24 is a legal federal holiday

The Ninth Circuit alerts us that:

By executive order, the President has directed that federal agencies and departments, including the Postal Service, will be closed on December 24, 2019. Therefore, although the Court of Appeals remains open, December 24 will be treated as a legal holiday for the purposes of all filing deadlines, including jurisdictional deadlines. See Fed. R. App. P. 26(a)(6)(B).

Surfing Syda!

In Common Touch, today's DJ profiles Santa Cruz County Superior Court Judge Syda Cogliati: New Judge Cogliati campaigned on her bus rides to work as an appellate attorney.

• She’d often hand campaign literature to her fellow riders and sit and chat with them every morning on her way to her job as a senior research attorney for the 6th District Court of Appeal. “The day after the election, when I got on my bus, they gave me a standing ovation,” Cogliati recalled. “It just really cemented for me how much of a grassroots campaign I had.”
• Cogliati said she learned many lessons as a senior research attorney for 6th District Court of Appeal Justice Patricia Barmattre-Manoukian for 13 years, including initialing every page as a reminder it’s been read. But being an appellate attorney also taught her the importance of what she called “appeal proofing” her record. “I like stating what the standard is and using the legal terms that are the key terms and things ... I know are going to be helpful if my decisions are reviewed and showing that I’ve considered the evidence and the arguments and how I’ve gotten to my ruling,” Cogliati said. “I think that’s really important both for the litigants and the attorneys, but also for the potential appellate review.”
• “Every day I possibly can, I surf before work,” Cogliati said. “And I feel like it’s one of the things that helps me maintain a calm, relaxed, positive demeanor on the bench.”

Today's DJ also has GOP-named 9th Circuit Judges Decry Death Penalty Ruling:

• A chorus of Republican-appointed judges on the 9th U.S. Circuit Court of Appeals decried on Wednesday a ruling that granted relief to a death penalty appellant, dissenting from a circuit-wide decision not to rehear the case.
• The 12-judge dissent -- joined by six of President Donald Trump's appointees and one Democrat-nominated jurist, John B. Owens -- reflects a circuit whose conservative cohort has swelled with 10 recent Trump selections, making the outcome of en banc votes less predictable than during recent decades when the court's appointing-party balance tipped decidedly left.
• Bea's dissent -- joined by Circuit Judges Jay S. Bybee, Consuelo M. Callahan, Milan D. Smith, Jr., Owens, Mark J. Bennett, Ryan D. Nelson, Bridget S. Bade, Daniel P. Collins, Kenneth K. Lee, and Daniel A. Bress -- called the panel's approach "radical" and "unwarranted under AEDPA," and warned that it would elicit swift Supreme Court reversal, as have previous circuit death penalty decisions the judge cited.
• En banc rehearings convene when a majority of the 29-judge circuit so vote. Trump's 10 additions to the bench -- two coming last week, VanDyke and Patrick Bumatay -- give the circuit 13 GOP-named judges.

CHP officer wins ruling

Officer Who Alleges Appellate Justice Propositioned Her Wins Favorable Ruling

A judge ruled Tuesday that a black California Highway Patrol officer who acted as a driver for justices of the 2nd District Court of Appeal can move forward with all but one of the five claims in her lawsuit against her employer, in which she alleges she was sexually propositioned by an appellate justice.Los Angeles Superior Court Judge Michelle Williams Court said there were enough details in Tatiana Sauquillo’s complaint to support her claims of sexual and racial harassment, sex and race discrimination and failure to take all reasonable steps necessary to prevent sexual and racial harassment.

[12/20/2019 update: Today's DJ has Court OKs CHP Officer's Suit Involving 2nd District Justice]

Crowdsourcing justice?

Today's DJ has an especially appealing piece by Justice Hoffstadt, The Crowdsourced Jury. Here are some snippets:

Judicial power includes the power (1) to resolve disputes, State Board of Education v. Honig, 13 Cal. App. 4th 720, 748 (1993), (2) to enforce the resolution of those disputes, Branson v. Sharp Healthcare, Inc.,193 Cal. App. 4th 1467, 1476 n.4 (2011) ("'The power to enforce their decrees is necessarily incident to the jurisdiction of courts.'"), and (3) "to say what the law is," Marbury v. Madison, 5 U.S. 137, 177 (1803).

With the rise of arbitration and mediation in the early 20th century, the courts arguably lost their exclusive monopoly. Both enable prospective litigants to mutually "opt out" of the courts' dispute resolution function in favor of having a "private judge" hear their dispute. Put differently, they ostensibly intrude upon the judiciary's monopoly over dispute resolution. Granite Rock Co. v. Int'l Bhd. Of Teamsters, 561 U.S. 287, 299 (2010). But they do not invade the courts' monopolies over (1) enforcing judgments or (2) proclaiming what the law is. 

The technology of the 21st century now presents a further threat to the courts' monopoly.

First, should the courts care? Is the emergence of more alternative dispute-resolution like having more entrees on a menu or more like having a sixth sushi restaurant on a block? More entrees is a good thing, but more restaurants could be bad news for one or more of the restauranteurs. Where, as here, one of the "restaurants" was created to serve the entire population, diners choosing to dine elsewhere may be a cause for concern.
Second, what, if anything, can and should the courts try to do? Is the solution to make lawyers more readily available to all litigants? Or to streamline court procedures to make them simpler for self-represented litigants, thereby leveling the playing field when one party has a lawyer and the other does not? Or to encourage the development of non-court alternatives that more closely approximate the fairness of dispute resolution proceedings in the courts?

In other news: Those with a taste for irony might enjoy this story here about a lawyer who specializes in sexual harassment who was fired for ... sexual harassment.

And this published opinion today is a reminder: If your settlement agreement says that the trial court's determination "shall be final and nonappealable," then an appeal will be ... dismissed. "It is well-settled that a party may expressly waive it right to appeal ...."

SCOTUS gift list!

The NLJ's Supreme Court Brief offers: A Holiday Reading List for SCOTUS Fans

Need a last minute present for your favorite Scotus nerd or maybe yourself? The year has witnessed a number of interesting and accessible books about the Supreme Court and the justices—some by scholars, journalists and advocates. Here are some to consider wrapping a ribbon around.
The fight over the nomination of Justice Brett Kavanaugh spurred a variety of new books, including: Supreme Ambition: Brett Kavanaugh and the Conservative Takeover (by Ruth Marcus of The Washington Post); Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court (by Mollie Hemingway and Carrie Severino, chief counsel at Judicial Crisis Network ); The Education of Brett Kavanaugh: An Investigation (by New York Times reporters Robin Pogrebin and Kate Kelley)

There are also several new books from justices: A Republic If You Can Keep It (by Justice Neil Gorsuch); The Making of a Justice: Reflections on My First 94 Years (by Justice John Paul Stevens); Just Ask! Be Different, Be Brave, Be You (by Justice Sonia Sotomayor)

And don't forget about books about the justices, including: The Chief: The Life and Turbulent Times of Chief Justice John Roberts (by Joan Biskupic); The Enigma of Clarence Thomas (by Corey Robin); First: Sandra Day O'Connor (by Evan Thomas); and Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty and Law (by Jeffrey Rosen).

There are also plenty of new books about the court, including: An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know (by Josh Blackman and Randy E. Barnett); and Separate: The Story of Plessy V. Ferguson and America's Journey from Slavery to Segregation (by Steve Luxenberg). —Marcia Coyle

Job Opening in 2/8

Justice Wiley shares the following:

Satisfying lawyer job available in 2020 in Los Angeles
I need help deciding appeals and crafting appellate opinions. The goals are to achieve the ideal of equal justice under law and to inspire the public with the excellence of California's appellate justice system. The Work is fulfilling, important, and fascinating: we encounter just about ever imaginable human conflict, in practically every legal setting. We work together, directly, and with a small, supportive, friendly, fun, and talented team in downtown Los Angeles.

There will be one opening in 2020. I would like to fill it as soon as possible.

You must have excellent academic and professional credentials. Membership in the California bar is a very big plus. You have got to love writing and research and to enjoy puzzling through the law to figure it out. I am open to lawyers who would like to clerk for a set term as well as to those considering a judicial research attorney career. It is fine if you are entertaining both possibilities and have not decided. The more professional experience you have, the better.

Please send a cover letter, resume, references, grades, and writing sample to Div8.J4@gmail.com.

John Shepard Wiley Jr.
California Court of Appeal
Second District, Division Eight
https://www.courts.ca.gov/41621.htm

Appellate tidbits

Law360 has ​​​​​​​'Patently Frivolous' Appeal Brief Gets Atty 7th Circ. Sanctions
Bloomberg (and others) offer Kozinski Sued By Attorney Who Complained About Website Porn
Law360 also has 'This Profession Doesn't Need You,' Judge Tells Profane Atty [The DJ has Judge wants foul-mouthed lawyer disbarred from practice] and Atty Booted From 2nd Circ. Blasts Incivility Before Losing Suit

As ugly as it gets!

The Recorder has Judge Demands Resignation of Lawyer Who Wrote Profanity-Laced Emails

“Tell you what, slick, this profession does not need you,” the judge said. “I am going to do what I can to remove you from this profession.”
He then asked Hook to resign.
“I will not do that,” Hook responded, prompting Wright to interject.
“Shut up,” the judge said. “I want you to resign from this profession.”

Litigation Update for December 2019 is available now here!Also of note today: Leah Wilson to resign at State Bar Director.

Noteworthy oral argument

'You Are Acting Inappropriately': 2nd Circuit Scolds Lawyer Before Kicking Him Out-- In an interview hours after the hearing, New York lawyer Todd Bank said he could have been more cordial, but he didn't regret his comments in court.
Law360 has 2nd Circ. Boots Atty For Discourtesy After 3-Min. Hearing

And see the 2019 Judicial Council Year in Review here.

Cal Supreme Court Reappoints Members to Ethics Committee

The court reappointed committee chair Justice Ronald B. Robie of the Third District Court of Appeal; vice-chair Justice Douglas P. Miller of the Fourth District Court of Appeal, Division Two (Riverside); and Judge Robert Trentacosta of the San Diego Superior Court to new four-year terms (through Dec. 31, 2023).

California Chief Justice Cantil-Sakauye Eyes Another 12-Year Term

California Chief Justice Tani Cantil-Sakauye said Wednesday she expects to run for retention when her current 12-year term is up in 2022.

New 9th Circuit Judge!

 Senate Confirms Trump’s 10th Ninth Circuit Appointee, Lawrence VanDyke

The Senate has voted to confirm Lawrence VanDyke to the U.S. Court of Appeals for the Ninth Circuit, making him the tenth of President Donald Trump’s nominees on the nation’s largest appellate court and the president’s 50th circuit court appointee.

Ninth Circuit Press Release here.

Law360 has Ex-Nevada SG Joining 9th Circ. Is Trump's 50th Circuit Judge.

9th Circuit articles

Law360 has a pair of Ninth Circuit articles of note:

• 2 Nominees To Join 9th Circ. After Party-Line Votes: The Senate voted along party lines Tuesday to confirm a California pick for the Ninth Circuit (41-year-old Patrick Bumatay) and advance a Nevada nominee (47-year-old Lawrence VanDyke) for that circuit despite opposition from both states' Democratic senators.
• Kozinski's Return To Court Sparks #MeToo Ethics Questions: "the post-#MeToo landscape raises questions as to whether bar associations — which have long put great emphasis on character and fitness when lawyers are first licensed — should take a more proactive role in investigating lawyers."

On the state side, check out Judge Need Not Inquire if the Parties Want a Court Reporter—C.A.:

“In Jameson, as a matter of ensuring equal access to justice, the California Supreme Court held that a litigant who ‘qualifies for a waiver of initial court filing fees is entitled, as well, to a waiver of fees for the attendance of an official court reporter at a hearing or trial.’…This rule does not apply to these petitioners, as they did not seek or obtain a fee waiver, and there is no claim they were denied access to justice. Moreover, nothing in Jameson imposes a duty on the court to inquire if a party wants a verbatim transcript. The portion of the opinion which petitioners cite to support their contention is a recitation of the factual background in Jameson….The recitation of facts is not a holding, nor does it impose any duty on the court.”

Order denying Motion to Clarify Judgment is appealable

The 6th District opinion here clarifies that a post-judgment order denying a motion to clarify the judgment was an appealable order because the issues it raised were different from those arising from an appeal from the judgment itself.

We conclude that the postjudgment order denying appellants’ motion to clarify is an appealable order. (See Misik v. D’Arco (2011) 197 Cal.App.4th 1065, 1071 [order denying motion to amend judgment to add respondent as a judgment debtor was an appealable order].) The appeal in this case raises issues different from the appeal from the amended judgment.

No extra pages for you!

In this published anti-SLAPP opinion from 2/4's Justice Manella, there's a final section that has particular zing:

The District contends this matter should be remanded to the trial court with instructions to rehear the anti-SLAPP motion after the District files a longer opposition brief, arguing the court abused its discretion in denying the District leave to include an additional nine pages. The District concedes it could not find any published authority reviewing the denial of such leave. The District falls far short of showing error, and farther short of showing prejudice. The District’s briefs on this appeal -- in which we review the trial court’s decision de novo -- span 100 pages. Nothing in them suggests that an extra nine pages below would have made a difference.

New 9th Circuit Judge!

Law.com has SoCal Prosecutor Patrick Bumatay Confirmed to Ninth Circuit Seat:

Bumatay, whose nomination was opposed by California’s Democratic senators, is the first openly gay appellate judge and the first of Filipino descent appointed by President Donald Trump.

Ninth Circuit Press Release here.
[12/11/19 update: Today's DJ has Bumatay is confirmed as 1st openly gay man on 9th Circuit]

Catching up

Today's DJ has Kozinski Returns to 9th Circuit, as an Advocate about his oral argument in the Zindel case. Law360 has Kozinski Returns To 9th Circ., On Other Side Of The Bench, which reports:

Since retiring, Kozinski has taken on several litigation cases working out of Torrance, California, according to state court and Ninth Circuit filings. Citizens for Fair Representation, a coalition of libertarian groups suing to add more seats to California's state legislature, recently hired Kozinski to appeal a dismissal of their case in state court.
Kozinski was also recently listed as counsel in a September brief appealing a former federal agent's six-year sentence for stealing bitcoin during an investigation of the black market website Silk Road.

Yesterday's DJ had (1) Justice Eileen Moore's I'll be homeless for Christmas -- A veteran's access to a lawyer can mean the difference between living under a roof or under a bridge and (2) Justice Frank Menetrez in Conflicting cases on siblings and bypass.

And don't miss the latest issue of the California Supreme Court Historical Society's Review!

Kozinski returns to the 9th Circuit

Alex Kozinski Set to Return to 9th Circuit as Oral Advocate

Kozinski, the former chief judge of the court who retired abruptly two years ago amid sexual harassment allegations, is set to make arguments before the court on Monday in a copyright case against the filmmakers behind “The Shape of Water.”

May it Please the Court

You can watch Zindel v. Fox Searchlight Pictures on Monday, Dec. 9, SF Ctrm 1 on the 9:30 a.m. calendar before Judges Wardlaw, Lee, and Kennelly (N.D. Ill.). Audio recording here.