Fixing Appellate Delay is the title of today's DJ column by ... Jon Eisenberg, of course. Three months ago he "filed a complaint with the Commission on Judicial Performance about egregious decisional delay by three justices of the 3rd District Court of Appeal in Sacramento, listing 150 appeals adjudicated in 2018-2020 which had languished for at least two years and as much as seven years from the completion of briefing to submission for decision." He then "asked the California Supreme Court to transfer an additional 57 still-unadjudicated, long-delayed appeals out of the 3rd District for speedy decision elsewhere -- which the Supreme Court denied." Since then he has found 94 more such 3rd District appeals, "for a total of 151 as of Feb. 16, 2021, on top of the previous 150 listed in [his] CJP complaint."
Has this done any good? Well, for one, "[o]pinions have now been filed in about half of those additional 151 moldering appeals -- a long-overdue outpouring." But what about addressing the root problem? He has several suggetions:
- "The Supreme Court should promptly transfer a substantial number of pending appeals from the 3rd District to other districts to help ease the 3rd District's backlog."
- "The chief justice should assign the 3rd District a retired appellate justice or a sitting appellate justice from another district to serve the 3rd District temporarily until its pending appeals are brought reasonably current, and/or a local superior court judge to serve pro tempore in the 3rd District's current vacancy until the governor fills it."
- "The Judicial Council should commence steps to amend the California Rules of Court as the Strankman Commission recommended in 2000 to require the administrative presiding justices of the six district Courts of Appeal to (1) advise the chief justice and the Supreme Court regarding periodic equalization of the workloads of justices, districts, and divisions within districts, and (2) submit annual reports to the chief justice and the Supreme Court regarding any need to equalize appellate workloads to account for regional population disparities."
- the Judicial Council should "promulgate a Rule of Court providing for expedited processing of criminal appeals that involve relatively short prison sentences -- say, fewer than four years -- which, with good conduct credits, are frequently completed in as little as half the time imposed."
- "The Judicial Council should also consider adopting standards for expeditious adjudication of pending appeals -- for example, the Model Time Standards for State Appellate Courts (2014), which call for 95% of civil appeals to be adjudicated within 450 days and 95% of criminal appeals to be adjudicated within 600 days."
- "The governor should promptly fill the current vacancy at the 3rd District -- as well as two other vacancies at the 6th District in San Jose. In the future, the governor should move expeditiously to fill all such vacancies."
- the Legislature should "adjust the allocation of appellate justices statewide in accordance with shifting demographics. At a minimum, the Legislature should add one justice to the 3rd District and one justice to Division 2 of the 4th District."
- And a final "bold proposal: Decisional delays like those in the 3rd District could be discouraged by putting the justices' salaries in play -- much like the 90-day rule makes payment of judicial salaries contingent on opinions being filed within 90 days of a case's submission for decision. Perhaps it's time to amend the California Constitution to set a deadline -- say, a year -- for the submission of appeals after they have become fully briefed, so that each case must be calendered for oral argument within that time or judicial salaries will be withheld."