The following are currently sitting on assignment in the Second District:
· Judge Rita Coyne Federman of the San Luis
Obispo Superior Court, will be sitting Pro Tem in Division One until
December 31, 2020.
· Judge Timothy P. Dillon of the Los Angeles
Superior Court, will be sitting Pro-Tem in Division Seven until December 31,
2020.
· Judge Tony L. Richardson of the Los
Angeles Superior Court, will be sitting Pro-Tem in Division Seven until December 31, 2020.
Chief Justice John G. Roberts, Jr. has named eight new chairs of Judicial Conference committees and extended the term of a current chair by one year. The appointments took effect on Oct. 1, 2020.
Of interest to this audience:Beds pens another fun one, this one published here, which references Churchill, Nigerian princes, Tom Clancy, and more. And among the great lines you may want to cite sometime, there's this one: "A more apt characterization for this “transaction” would be “scam.”"
And on the contempt, sanctions, and candor front, see here.
What should an appellate court justice do when a staff member posts a social media comment that violates the ethical canons?
In a summary of the advice posted on the committee's website, the Supreme Court Committee on Judicial Ethics Opinions (CJEO) concludes the justice should take immediate steps to remedy the staff person’s ethical violation after becoming aware of the comment.
More details here.
Assume a party is ordered to arbitrate, but then refuses to participate in the arbitration and then moves the superior court to restore the case to the civil active list and set trial dates. If the court grants that motion, is it appealable? This 4/3 unpub here says yes. The order is "functionally equivalent" to an order denying a petition to compel arbitration, and so is appealable under CCP 1294(a).
This Summer the ABA's Tort Trial and Insurance Practice Section published a new book on appellate practice, titled Preserving Appellate Complaints in Federal Court, which appears to be about record preservation. This title strikes the appellate-ear as odd: Do appellate lawyers call issues to be raised on appeal "complaints"? No, that doesn't sound right at all. Here's a description from the book's webpage:
For civil trial and civil appellate lawyers who practice in federal court, this book sets out the rules for preserving complaints on appeal. Authors focus on opinions from United States courts of appeals with citations from all circuits. Appendices include an invaluable checklist of preservation items with tools to help make additional and jurisdiction-specific research fast and convenient.
Trial lawyers often must make split-second decisions and judgment calls that do not follow all the procedural steps required to ensure presentation of an issue on appeal. Focusing on the preservation of appellate complaints in federal trial courts, this book helps civil trial and civil appellate lawyers take the right steps to ensure preservation of appellate complaints.
This guide sets out the rules for preserving complaints on appeal, beginning with a general approach to preservation rules. Chapters address pre-trial, trial, and post-trial preservation issues, as well as handling objections to a magistrate's ruling or recommendation. The book's focus on opinions from United States courts of appeals with citations from all circuits. Invaluable appendices make this an essential volume for lawyers who need to preserve complaints on appeal.
That's the title of a Zoom webinar to be presented on October 26 at noon by the San Diego County Bar Assn's Appellate Practice Section. Details here:
Presented by:
The Appellate Practice Section of the San Diego County Bar Association
This program is worth 1.0 MCLE Credit & 1.0 Specialization Credit in Appellate Practice
Featuring:
Carmela Simoncini, Esq., Adjunct Professor, Thomas Jefferson School of Law, Lead Appellate Court Attorney, Fourth District Court of Appeal, Division Two
Eugene Volokh, Esq., Distinguished Professor at Law, UCLA
Moderated by:
Johanna Schiavoni, Esq., Appellate Attorney, Certified Appellate Specialist, CA Board of Legal Specialization, & President, San Diego County Bar Association
Join us for an insightful discussion on amicus participation in appellate practice. This program will address the court’s receptiveness to amicus briefs and in what kinds of cases amicus participation is helpful. The program will also cover some of the fundamentals of amicus briefing, what the briefs should contribute, and strategic considerations of how it can be most impactful.
On October 29 at noon, CLA's Racial Justice Committee presents "From Justice Eileen C. Moore: Race Results""
Justice Eileen Moore will compare and contrast U.S. Supreme Court cases with Hollywood movies, discussing how each institution has treated African Americans throughout the decades. Which body has been more progressive, the conservative court or the liberal movie industry, may surprise you. During the presentation, Justice Moore will show numerous film clips, placing them in context with supreme court cases of the time.
This webinar will take place from 12:00 pm - 1:30 pm. Register here.
For an interesting dissent in 2/6, see here, which is also covered in the MetNews as Reversal of Conviction Draws Dissent From Incensed Jurist.
Today's Recorder has The 9th Circuit's En Banc Review Process Foretells a Conservative Power Shift -- In the last four years, President Donald Trump has managed to stack the Ninth Circuit with 10 appointees, but Trump’s judicial legacy also can be found in which jurists are dissenting to en banc rehearing denials.
Federal court scholar Arthur Hellman of the University of Pittsburgh School of Law says these dissents largely hail from the conservative faction of the court. From January 2018 through October 2020, judges have dissented 31 times—two of which were identical dissents in companion cases. Only three of the 31 dissents were entirely or primarily from judges appointed by Democratic presidents.
“It tells us if President Trump is reelected and appoints a few more judges to the Ninth Circuit, then we will see a shift in the ideological direction of the court,” he said. “I don’t think that has happened up to this point.”
The Democrats still have their 16-13 majority on the court, and most of the time, that means the conservatives will lose the en banc votes, he said. But if Trump appoints more conservative judges, that could change.
The Daily News reports Clerk settles sexual harassment lawsuit against former L.A.-based appeals court judge. The article begins like this:
A clerk with the 2nd District Court of Appeal in Los Angeles settled her lawsuit alleging a former justice sexually harassed her for five years before he was removed from the bench in June for a history of such misconduct with multiple women. Lawyers for Trisha Velez filed court papers Sept. 29 with Los Angeles Superior Court Judge Michelle Williams Court stating that her lawsuit against the state of California and ex-Justice Jeffrey Johnson was resolved. No terms were divulged.
[10/23 update: Today's DJ has Defrocked Justice and State Settle Court Worker's Suit, which notes that notices of settlement were filed Sept. 29 and Oct. 13. The article concludes: "In August, Johnson filed an appeal to the California Supreme Court challenging his removal. The petition signed by Costa Mesa-based attorney Paul S. Meyer stated "key factual findings were unsupported by clear and convincing evidence." The commission submitted its answer on Oct. 13 in Johnson v. Commission on Judicial Performance, S264179 (State S. Ct., filed Aug. 28, 2020)."]
Next Thursday, October 29, from 10:10 to 11 a.m., The National Judicial College presents the Justice Robert H. Jackson Lecture: "The Robe: One Size Does Not Fit All" with California Chief Justice Tani Gorre Cantil-Sakauye. The presentation will be delivered online via Webex. Join by clicking here.
The Justice Jackson Lecture Series is named for Supreme Court Justice Robert Houghwout Jackson, who also served as America’s chief prosecutor in the Nuremberg War Trials. The series is held in conjunction with the College’s General Jurisdiction and Special Courts: Advanced courses. Previous Justice Jackson Lecturers include Byron White, Anthony Kennedy, Sandra Day O’Connor, George H.W. Bush, William French Smith, Edwin Meese, Erwin Chemerinsky and Judy Perry Martinez.
Yesterday 1/5 published this opinion here, granting a peremptory writ of mandate, noting in the intro:
We also take the opportunity to clarify for trial courts that an order to show cause, unlike an alternative writ, does not invite the trial court to change the order challenged by the writ petition. In addition, we reiterate that a judge of the superior court generally may not overturn the order of another judge unless the record shows the other judge is unavailable.
And on the federal side of things, today's DJ has H&L's John Querio and Lacey Estudillo discussion of BP PLC v. Mayor & City of Council of Baltimore in Court to weigh appellate jurisdiction under removal statutes:
This term, the U.S. Supreme Court will address whether 28 U.S.C. Section 1447(d) permits a federal court of appeals to review any issue encompassed in a district court's remand order where the removing defendant premised removal in part on the federal-officer or civil-rights removal statutes.
Tapped out? Check out this interesting 4/2 published opinion here which begins:
In 2014, a single Riverside County Superior Court judge signed 602 orders authorizing wiretaps. To put that in perspective, all other judges in the state authorized 345 wiretaps that year. And the 602 wiretaps that year comprised approximately 17 percent of all the wiretaps authorized by all the state and federal courts in the nation.Also of interest is this 4/3 unpub here, which the MetNews covers in Court of Appeal Take Unusual Course of Issuing Apology: Bedsworth says Counsel Should Not Have Been Asked for Further Briefing.
Congratulations to 4/3's Justice Eileen Moore for being honored with a 2020 CalVet Trailblazer Award from CalVet Women Veterans Affairs. The award will be presented virtually at the annual 2020 Women Veterans Reception on October 21 at 6 p.m.
[The DJ's article on Tuesday was Justice Eileen Moore honored as trailblazer for work with fellow veterans.]
Today's DJ has Kirk Jenkins' The California Supreme Court during a pandemic: by the numbers, analyzing the court's operations during these unusual times. His findings?
Because attorney Cyrus Sanai is contending the retaliation occurred under the guise of an administrative agency, Kozinski, the council and several current and former council members should not be able to get the case dismissed under either judicial or quasi-judicial immunity or because federal courts purportedly have no jurisdiction to review decisions by the Judicial Council, the lawyer told the Northern District of California on Tuesday.
4/3 publishes this case here today, which begins:
A case from 1836 described seamen as “‘a class of persons remarkable for their rashness, thoughtlessness and improvidence. They are generally necessitous, ignorant of the nature and extent of their own rights and privileges, and for the most part incapable of duly appreciating their value. They combine, in a singular manner, the apparent anomalies of gallantry, extravagance, profusion in expenditure, indifference to the future, credulity, which is easily won, and confidence, which is readily surprised.’ [Citation.]” (Brown v. Lull (CC Mass. 1836) 4 F. Cas. 407, 409, cited in Dutra Grp. v. Batterton __ U.S. __ [139 S.Ct. 2275, 2279], fn. 1.) Herman Melville first went to sea in 1838 so these were the shipmates he sailed with and later wrote about in Moby Dick; courts of his day took a solicitous approach toward the problems of the hardy souls engaged in seafaring commerce.
But admiralty law has evolved since the days when it was entirely judgemade and mariners were practically wards of the court. Since the early 20th century, when Congress began legislating in this area, the role of the courts has changed from leader to follower, from promulgation to interpretation. As the United States Supreme Court has explained in its most recent opinion on the matter, the courts must now leave the development of novel claims and remedies to the legislatures. For that reason, we must affirm the judgment in this case.
So obviously, this case is about damages from an accident while filming a webisode. Or maybe not so obvious. But it is obvious that this is J. Beds!
SCOTUS Press Release here:
The Court will hear all oral arguments scheduled for the November and December sessions by telephone conference, following the same format used for the October teleconference arguments. In keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely. The Court building remains open for official business only and closed to the public until further notice. The Court will continue to closely monitor public health guidance in determining plans for the January argument session.
The Court will provide a live audio feed of the November and December oral arguments to a media pool as it did for the October arguments. The pool participants will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms for live public access. The oral argument audio and a transcript of the oral arguments will also be posted on the Court’s website following oral argument each day.
Today's DJ has Trailblazing appellate justice recalls when Ginsburg supported her dissenting opinion: 1st District Court of Appeal Justice Barbara J.R. Jones retired Sept. 30 after 28 years on the bench
On Friday, November 6, and Saturday, November 7, Loyola Law School will be hosting the Regional rounds of the 71st annual National Moot Court Competition using zoom and “virtual courtrooms.” The competition features law school student advocates from California law schools. As the regional sponsor, Loyola Law School must provide three-judge panels for regional rounds of virtual oral arguments. Each argument will last approximately 1 hour (30 minutes per side) and will include an opportunity to provide the student competitors with feedback. The judges will be provided with a copy of the problem and a bench memorandum. (The problem presents two issues: standing for civil RICO matter and qualified immunity for a state government official’s conduct conducting a warrantless search. No particular expertise in these areas of law is required of the judges; all required of the judges is a willingness to observe and critique excellent student advocates.) Also, because the event is entirely virtual, you can participate without coming to campus. If you are available to serve as a judge either Friday 11/6 (argument sessions are at 6 pm and 8:30 pm) or on Saturday 11/7 (argument sessions at 9:30 am and 1 pm), please contact Professor Rebecca Delfino: Rebecca.Delfino@LLS.edu
The Justices webpage for the First District shows a vacancy for the Division Five PJ spot formerly held by Justice Barbara Jones who retired last month. Her profile page now reads:
Justice Jones was confirmed as Presiding Justice of Division 5 of the First District, Court of Appeal in September 1998, the first woman to serve as a presiding justice in the First District. In December 1996, she was confirmed as Associate Justice of Division 5. Justice Jones retired from the Court of Appeal in September 2020.
At the Lectern reports here on this LA Times interview here of Justice Jenkins, and notes:
"he will soon be the second Southern Californian on the court; he and his partner have bought a house in Los Angeles County and will move there once Jenkins’s East Bay home sells. Justice Joshua Groban also lives in Los Angeles."
Justice Kruger, of course, also has SoCal roots.
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Today's DJ has an obit for Justice Michael G. Nott, who "died Saturday at 80 after a 10-year battle with Parkinson's disease"
Judge M. Margaret McKeown presents a joint program with NJCHS and NDHS
CITIZEN JUSTICE: The Environmental
Legacy of
William O. Douglas
In a manner unthinkable today, Justice William O. Douglas was a public advocate
for the environment. Join us as Ninth Circuit Judge M. Margaret McKeown
explores the politics and ethics of advocacy by a Supreme Court Justice. Judge
McKeown’s book on Justice Douglas’s environmental legacy will be published in
2021.
Judge McKeown was appointed to the United States Court of Appeals for the
Ninth Circuit in 1998, before which she was the first woman partner at Perkins
Coie. Additionally, Judge McKeown has lectured and taught extensively on
constitutional law, international law, human rights law, intellectual property,
litigation, ethics and judicial administration.
The program will take place via Zoom on October 28, 2020, 5 pm-6pm. Admission is free of charge. Advance registration is required. Please register on the Ninth Judicial Circuit Historical Society website: https://www.njchs.org/speaker-event-joint-program-by-ndhs-and-njchs/
MCLE: 1 Hour of California CLE
Today's DJ has Jenkins says 'here because of the struggle' for gay rights:
See Ninth Circuit Holds First Virtual En Banc Sessions
Many courts, including the United States Supreme Court, have been hearing arguments via audio connections, but the U.S. Court of Appeals for the Ninth Circuit broke new ground when it held its first ever virtual en banc hearings from September 22-24.Today's DJ has PJ Gilbert's 299th column! Quite a run. This one titled A Column About Columns, notes that "Whatever the number, some may be worth reading."
In the Moskovitz on Appeal column, Myron discuss 'Law of the case': Mistakes appellate attorneys see over and over, where he explains Law of the Case, the Prior Ruling Doctrine, and an exception.
The DJ also has Experienced Appellate Specialist Joins Bryan Cave in Los Angeles, reporting that "Jean-Claude 'J.C.' André will handle commercial litigation and co-lead the appellate and supreme court group""[O]ne trial judge may not reconsider and overrule the previous interim ruling of a predecessor judge of the same court by the expedient of simply ignoring the existence of that prior ruling." Kerns v. CSE Ins. Group, 106 Cal. App. 4th 368, 393 (2003).
The reason for this rule was explained in People v. Superior Court (Scofield), 249 Cal. App. 2d 727, 734 (1967): "If the rule were otherwise, it would be only a matter of days until we would have a rule of man rather than a rule of law. To affirm the action taken in this case would lead directly to forum shopping, since if one judge should deny relief, defendants would try another and another judge until finally they found one who would grant what they were seeking. Such a procedure would instantly breed lack of confidence in the integrity of the courts."
The Recorder has Associate Justice Joshua Groban Opens Up About his First 2 Years on California's Supreme Court -- In an interview with The Recorder, Justice Groban discusses the California Supreme Court's statement on racism, advocacy in the era of remote hearings and his soon-to-end role as the rookie on the bench.
How are you operating your chambers in terms of clerks?
We have five [permanent] attorneys, four of them are in the Bay Area and one of them is in Los Angeles. And they’re absolutely invaluable. They’re dedicated and smart and thoughtful and have a real diversity of practice experience, which is important to me, and they’re willing to challenge me and ask hard questions and disagree where appropriate. ...
Three of the five are women, including my head of chambers. There was a long time at the court where none of the heads of chambers were women. Now many are.
We really value diversity of experience as well. One came from the attorney general’s office. One came from a public defender’s office. One came from a large civil plaintiffs firm. One was already on the central criminal staff. And one was working for a justice on the Second District Court of Appeal. They all bring unique perspectives and unique experiences.
If you're the appellant, you don't want the decision to start like this one from 4/3 here:
This is a challenging appeal. The lengthy opening brief (AOB) filed by appellants ... is largely comprised of a series of convoluted factual claims which are only sporadically supported by citations to the record. The brief introduces an extensive cast of characters without explaining who they are, how they relate to each other, or what roles they play in the dispute on appeal. Indeed, the exact nature of the dispute, and the relationship of the named parties to each other, is not revealed until page 47 of appellants’ 55-page opening brief. As we said, this case is a challenge.
