2d DCA pro tems

The following are currently sitting on assignment in the Second District:

·  Judge Charles S. Crandall of the San Luis Obispo Superior Court, will be sitting Pro Tem in Division One until October 31, 2021

·  Judge Brian E. Hill of the Santa Barbara Superior Court, will be sitting Pro Tem in Division Three until September 30, 2021

·  Judge Martha A. Matthews of the Los Angeles Superior Court, will be sitting Pro Tem in Division Three until October 31, 2021  

·  Judge Audra Ibarra of the Santa Clara Superior Court, will be sitting Pro-Tem in Division Seven until October 31, 2021

·  Judge Sam Ohta of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until October 31, 2021

Fun with Fonts

Law360 has Spencer Short's article What The Judiciary's Font Recommendations Can Teach Us discussing circuit splits regarding font use.

Today's DJ has Retired Justice Tricia Bigelow Joints Signature Resolution -- "In Bigelow’s 35-year legal career, she has written three books on California law and procedure and chaired the Los Angeles County Superior Court Civil Education Committee."

The Volokh Conspiracy has Are There Too Many Dissents from Denial of En Banc Petitions?

In the Man Bites Dog file: We're used to seeing appellate opinions slam pro pers (e.g., here, and inexperienced or sloppy lawyers) by calling out briefing flaws, especially along the lines of "An appellant's brief must include a 'summary of the significant facts.'" But in this unpub from 2/6 here, the appellant getting chided (in footnote 2) about basic appellate rules is ... the Department of the California Highway Patrol, represented by the Attorney General's office! Playing on the CHP's role as guardians of the road, in calling out the State for its defective appellate approach, the court notes "We cannot abide such a detour from appellate practice." And the court notes that given the problem, "the State's appeal is 'doomed to fail.'" (cleaned up).

Confirmations today!

Chief Justice Tani G. Cantil-Sakauye, chair of the Commission on Judicial Appointments, announced that the commission today confirmed four nominations to the California Courts of Appeal in San Francisco and San Jose.  The hearings were held virtually for only the second time in the commission's history. The nominees were confirmed by unanimous vote of the three-member commission, which includes Chief Justice Tani G. Cantil-Sakauye (Chair); Attorney General Rob Bonta; and either Presiding Justice J. Anthony Kline (for First Appellate District appointees), or Presiding Justice Mary J. Greenwood (for Sixth Appellate District appointees):

• Justice Alison M. Tucher, as Presiding Justice of the Court of Appeal, First Appellate District, Division 3 (San Francisco)
   
• Justice Teri L. Jackson, as Presiding Justice of the Court of Appeal, First Appellate District, Division 5 (San Francisco)
   
• Judge Cynthia C. Lie, as Associate Justice of the Court of Appeal, Sixth Appellate District (San Jose)
   
• Judge Charles E. Wilson II, as Associate Justice of the Court of Appeal, Sixth Appellate District (San Jose)

Click here for more.

The Recorder has Commission Confirms Four Justices to Bay Area Appellate Courts

The DJ has Judicial confirmations swear in diverse collection of appointees

The group sworn in Monday include a Black former prosecutor from East Palo Alto, the daughter of Korean immigrants who worked as a federal public defender in San Jose, a Black woman whose family hails from Louisiana, and a white woman best known before joining the bench for persuading prosecutors to release a man convicted of murder.

Making dissents personal?

Today's DJ has 9th Circuit Judge not afraid to name names in dissents that often turn personal: In two recent dissents in cases involving immigration and death penalty appeals, Judge Lawrence VanDyke fired away at Senior U.S. District Judge William A. Fletcher and on Friday, at now-deceased 9th Circuit Judge Stephen Reinhardt. The article begins:

• 9th U.S. Circuit Court of Appeals Judge Lawrence VanDyke is becoming the master of the biting dissent. While the judge, an appointee of President Donald Trump who took office last year, almost always votes along with other conservatives on the circuit court, he is setting himself apart in dissents that often turn personal.
• Even by the standards of appellate court dissents, the language of VanDyke's dissents are "intemperate," said Arthur Hellman, professor emeritus at the University of Pittsburgh School of Law. "That's personalizing the criticism in a way most judges would not have done," Hellman added.

Speaking of 9th Cir. judges (and 2d District Justices, etc.), ABTL-LA is having an in-person judicial reception starting at 6 p.m. on September 22 at the Omni in DTLA. Register here.

Also of note, Beds starts out a statement of facts here like this: 

“Byzantine.” Such was the word chosen by one of the cross-appellants ... to describe this litigation. The choice was apt, considering the case took five years from filing to judgment and covered a course of alleged misconduct spanning decades. Mindful of the legal and factual morass with which we are presented, our goal is to isolate only those facts and issues which are relevant to resolving the appeals.

And the NLJ has Warren Burger’s Biography: Decades in the Making, and Still Not Done 

9th Cir. 2020 Annual Report

The Ninth Circuit has posted its 2020 Annual Report

• Nice memorial pages appear for Judges Farris and Fisher (pp. 19-22)
• Ninth Circuit Holds First Virtual En Banc Sessions (pp. 43-44)
• Stats are on pp. 60-63
• The Ninth Circuit continued to be the nation’s busiest federal appellate court, accounting for 21.6% of all new appeals nationally.
• The court’s overall reversal rate was 9.9%, compared to a national average of 8.8%. The reversal rate was 18.8% for criminal cases; 14.6% for civil cases involving the federal government and 13.7 for non-government civil cases; and 5.5% for administrative agency cases.
• In the Ninth Circuit in FY 2020, the median time interval from filing of a notice of appeal to final disposition was 12.5 months

CJA hearing Aug. 30

VIA VIDEOCONFERENCE—The Commission on Judicial Appointments will hold virtual public hearings on Aug. 30 beginning at 10 a.m. to consider the following nominations by Governor Gavin Newsom:

• Justice Alison M. Tucher, as Presiding Justice of the Court of Appeal, First Appellate District, Division 3 (San Francisco)
• Justice Teri L. Jackson, as Presiding Justice of the Court of Appeal, First Appellate District, Division 5 (San Francisco)
• Judge Cynthia C. Lie, as Associate Justice of the Court of Appeal, Sixth Appellate District (San Jose)
• Judge Charles E. Wilson II, as Associate Justice of the Court of Appeal, Sixth Appellate District (San Jose)

The Commission members are:

• Chief Justice Tani G. Cantil-Sakauye (Chair)
• Attorney General Rob Bonta
• Presiding Justice J. Anthony Kline (for First Appellate District appointees) or
• Presiding Justice Mary J. Greenwood (for Sixth Appellate District appointees)

The hearings will be webcast live on the California Courts Newsroom.

Testimony and Comment

Persons who wish to testify or comment on the appointment must submit their information for receipt by the commission no later than 5 p.m. on August 23. 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. Submissions accepted via email to coja@jud.ca.gov. 

For the latest Covid-order from the 7th Circuit, see here, which includes the requirement that those appearing for in-person oral argument in October must be vaccinated.

Song references in opinion?

Similar to Judge Kozinski's famous Syufy opinion (which had over 200 references to movies), Judge Lee's recent opinion regarding the Turtles (whose "iconic anthem" is Happy Together), contains references to a bunch of songs. How many can you find in the 22 pages here? (See below for some answers.)

Today's DJ profiles Fresno County Superior Court Judge Heather Jones, who was a criminal staff attorney at the Cal Supreme Court 2004-2005.

And check out the new Journal of Free Speech Law online law review (faculty-and-judge run, not by law students).

ABA Journal has When the Supreme Court cites your amicus brief

The DJ is running an ad showing that 2/8's former PJ Bigelow is now with Signature Resolution.

[Here are Turtles opinion song references that jump out on a quick read: Let It Be; Revolution; Little Help from My Friends; Great Balls of Fire; California Dreaming; Night and Day; Born in the U.S.A.; Walk the Line; Leader of the Pack; Keep me Hanging On; The Twist; Nowhere to Run; It's Now or Never; Sound of Silence; New York State of Mind; etc.] This seems like a good time to re-post this: In A Rule Against Fun, Richard Re reviews a forthcoming law review article: Nina Varsava, Professional Irresponsibility and Judicial Opinions,  __ Hous. L. Rev. __ (forthcoming, 2021), available at SSRN), https://courtslaw.jotwell.com/a-rule-against-fun/.

Oral argument fail

 Law360 reports Atty for Ga. Public Defender to State Justices: "I'm Done" telling the tale of a Georgia lawyer who struggled at oral argument before the state Supreme Court. At argument, he threw in the towel, saying "[I] can't keep up with you on this stuff" and "abandoned answering questions," saying "I'm done." The justices "expressed exasperation" when the lawyer either didn't answer their questions or said he couldn't answer their questions. The Chief Justice said, "This is more than once you've come up and said 'I'm not prepared to argue.'" The lawyer said that he was "proud" of his trial court work, but that "I'm going to get somebody to do appellate stuff better than me."

Also: The 2021 Summer Edition of Appellate Issues (from the ABA's Council of Appellate Lawyers) is now available here. This is a special Technology Issue, "focusing on the role technology plays across various aspects of appellate practice," including remote oral arguments, brief readability, appellate blogging, etc.

ACLU enters delay fray

Today's DJ has ACLU, attorneys say fear prevents complaints about 3rd District

• Three attorneys have filed declarations with the California Supreme Court stating delays on the 3rd District Court of Appeals harmed their clients. According to a declaration filed by an ACLU attorney, many more are afraid to speak out.
• The ACLU also filed a letter of amicus curiae to support Eisenberg['s pending writ petition, S269691]. [The ACLU] argued the delays in criminal cases are a serious due process violation. Defendants have already “asserted their rights” by filing an appeal, and the “systematic and inordinate delays in resolving criminal appeals are presumptively prejudicial; no individualized review is necessary”
• “I’m grateful for the ACLU’s support,” Eisenberg said ... “Their meticulous work validates what I’ve been doing.”

DJ profiles 9th Cir. Judge Bade

Today's DJ profile is Judge Bridget Bade put early stamp on 9th Circuit

• Bade was born in Phoenix in 1965 and attended Arizona State University for her undergraduate and law degrees, graduating in 1987 and 1990 respectively. After law school she clerked for Judge Edith H. Jones of the 5th U.S. Circuit Court of Appeals and then served as a trial attorney in the environmental tort litigation section of the U.S. Department of Justice for four years. In 1995, she went into private practice at a firm that later merged with Steptoe & Johnson. ... In 2006, Bade joined the U.S. Attorney's Office for the District of Arizona.
• Throughout her nomination and confirmation process, Bade was generally seen as more moderate than many of Trump's judicial picks. She received a rating of "well qualified" from the American Bar Association and, because of the timing of her nomination and confirmation process, had the support of five Arizona senators -- four Republican and one Democrat -- a fact her husband pointed out during remarks at her investiture ceremony: the late Sen. John McCain, former Sens. Jeff Flake, Jon Kyl, and Martha McSally, and current Sen. Kyrsten Sinema.
• "I think it's fair to say that no one here has had the approval of five senators, so that made us even happier to have Bridget among us," Senior Circuit Judge Mary M. Schroeder joked during the ceremony.

Free 9th Circuit program

The Art of Appellate Advocacy:A View From the Ninth Circuit Bench:

A FREE CLE, presented remotely 1.25 CLE CREDITS (Pending Approval) Presenter: Honorable Margaret M. McKeown, Circuit Judge Moderated by: David T. Martin, Esq. When: Thursday, September 2, 2021 – 3:00 to 4:15 p.m. Topic: Effective Brief Writing and Oral Argument Remote Attendance: A link will be provided to registrants. Register: By 8/31/21 at https://www.njchs.org/appellate-advocacy-program/

(Some handout materials are here.)

From 4/2 to 2?

LACBA’s State Appellate Judicial Evaluation Committee (SAJEC) is vetting the Hon. Frank Menetrez, currently on the Fourth District Court of Appeal, for possible appointment to the Second District Court of Appeal. Anyone wishing to provide input on his qualifications is welcome to fill out the evaluation form linked below, or to contact committee chair Alana Rotter at arotter@gmsr.com.

https://www.surveymonkey.com/r/HonFrankMenetrez

[See MetNews article here.]

Justice Chin program

 LACBA's Appellate Court Section is presenting A Conversation with Retired California Supreme Court Justice Ming W. Chin on Sept. 30 at noon (1 hour of appellate specialization credit). Register here.

Judge VanDyke's latest dissental is attracting a lot of attention. See here, and Law360's 9th Circ. Judge Slams Colleagues Amid En Banc Denial (noting the "heated dissent" "slammed his fellow Ninth Circuit jurists for going off on a 'bizarre and gratuitous frolic.'"), and the DJ's 9th Circuit judge accuses colleagues of going on a "bizarre and gratuitous frolic."

In the Eisenberg v. 3d DCA writ (S269691), Petitioner Eisenberg has filed his reply, the CAAL weighs in, and the DJ has Brief says appellate attorneys fear objecting to delays.

Geek Out!!

The 4th edition of Federal Reporter is out! So get used to citations that read "__ F.4th __"!

F-YI:

"F." covers 1880-1924 in 300 volumes

"F.2d" covers 1924-1993 in 999 volumes

"F.3d" covers 1993-2021 in 999 volumes

and now "F.4th" 2021-????

Are more associates arguing appeals?

The pandemic may have provided younger lawyers with more opportunities to argue appeals. See Law.com's These Associates Are Leading Oral Arguments as Remote Proceedings Continue -- The COVID-19 pandemic may have helped give associates more opportunities to present oral arguments, with the associated travel costs eliminated when proceedings moved online.

Here's a nice first line from 4/1: "This case underscores the old maxim that it is best not to mix friendship and business."

In other amusing news, who thinks it's funny that S270319 is captioned "Orange County Board of Educaton v. Newsom"? One of the 3 R's is not spellin'.

The United States District Court for the Southern District of California is accepting applications for the 2022-2023 CJA Appellate Panel. Applications will be accepted beginning September 1, 2021 and ending on October 5, 2021 for the term beginning January 1, 2022 and expiring on December 31, 2023. The application and instructions for electronic submission are available online at: www.casd.uscourts.gov/Attorneys/CriminalJusticeAct. Applications must be submitted electronically. All applications must be filed by midnight on October 5, 2021.

Federal Practice conference in Sept. 2021

The United States District Court for the Southern District of California and the San Diego Chapter of the Federal Bar Association are pleased to present the Seventeenth Annual Judith N. Keep Federal Civil Practice Seminar on Thursday, September 9, 2021 from 1:00pm-5:15pm at the Westin Gaslamp Quarter, with a reception to follow. The annual seminar is dedicated to the memory of former District Judge Judith N. Keep, who served as a United States District Judge in the Southern District of California for over twenty years and as the District's first female Chief Judge from 1991 to 1998. This year's seminar will focus on pretrial and trial practice, including making a record for appeal. The program will include four speaker panels featuring Ninth Circuit Judge John B. Owens and many Southern District of California District Judges and Magistrate Judges. To RSVP, visit: https://www.fbasd.org. 

Thumbs up for remote proceedings

See 

Report: Remote Proceedings Increased Access for Court Users During Pandemic

A new report from a pandemic workgroup found strong support for maintaining extensive remote access to court proceedings.

• Remote options increase efficiency, safety, and participation: Remote appearances are efficient for many parts of criminal and civil cases, such as arraignments, pretrial conferences, and progress report hearings. They reduced failure to appear rates in many courts, and courts also saw efficiencies in work for staff and less down time in courtrooms.
   
• Court users expect it: Court users expect that if the courts can serve people equally or better remotely, those options should be available.

Judicial pay raise!

The Metnews reports State Judges to Receive Automatic Pay Boosts, explaining that "California judges are receiving a 4.3 percent pay raise, retroactively to July 1 ...." The article also contains a chart of judicial salaries, noting the new annual salaries: Chief Justice = $286.507; Associate Justice = $273,213; Court of Appeal Justice = $256,138; Superior Court judge = $223,829. For comparison purposes, the article has a federal chart: Chief Justice = $280,500; Associate Justice = $268,300; Court of Appeals judge = $231,800; district court judge = $218,600.

In today's DJ's Moskovitz on Appeal, What do you think?, Myron points out that a lawyer's job is to "think about how other people think," and in particular (for appellate lawyers especially) to try to figure out how judges will think. He points out that there are few books "written by appellate judges about what motivates their decisions" (citing to Posner's "Reflections on Judging" and "How Judges Think" as exceptions). So he wishes that "some appellate judge would write something like that about his or her own thought processes when deciding a single case."

Not so fast...

Over the past few weeks, many appellate courts around the nation announced the resumption of in-person arguments. But now many are backtracking. The NLJ's latest story on this is 4th Circuit to Suspend Upcoming In-Person Arguments in September -- The announcement comes as other federal courts update reopening plans amid the increased spread of the delta variant of COVID-19.

Another example: On August 13, 2021, the Seventh Circuit Court of Appeals issued three General Orders addressing the resumption of court operations as of September 1, 2021. See orders for further details. General Order 21-008 Regarding COVID-19 and the Restoration of In-Person Activity. This order supersedes General Order 21-005. (http://www.ca7.uscourts.gov/general-orders/General_Order_21-008.pdf) General Order 21-009 Regarding Masking, Vaccination and COVID-19 Self-Certification. This order supersedes General Order 21-006. (http://www.ca7.uscourts.gov/general-orders/General_Order_21-009.pdf) General Order 21-010 Regarding the Resumption of In-Person Oral Argument. This order supersedes General Order 21-007.
(http://www.ca7.uscourts.gov/general-orders/General_Order_21-010.pdf)

And another: Update to Court Operations from the D.C. Circuit - August 13, 2021. 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 during September and October 2021 will proceed remotely by video conference using Zoom for Government. An audio feed from oral arguments will be live-streamed to the public at no cost on the Court's YouTube channel, except when sealed material is being discussed. The Clerk's Office will contact arguing attorneys in advance of each oral argument to provide further information. This policy will be reexamined and modified as necessary as developing circumstances require. See https://www.cadc.uscourts.gov/intranet/home.nsf/Content/Announcement+-+Update+to+Court+Operations+20210813/$FILE/noticeCourtOperations20210813.pdf

And see: State Court Users Rush to Find Legislative Deal on Remote Courtroom Appearances -- 
Labor groups representing court reporters and interpreters are balking at continuing video-based proceedings after the pandemic emergency ends.

Also, from CLA's Litigation Section: The August 2021 issue of Litigation Update is now online!

Today's appellate catastrophe is here, where 4/3 spends pages 2 to 5 outlining all the ways in which appellant's opening and reply briefs violate the rules of court. Ouch! Then the court gets to the merits, and ... it's affirmed, of course. (This article notes that LASC holds 5,000 remote proceedings a day now.)

Summary reversal

Here's a case from 4/1 with a funny name and an unusual approach: The appellant filed (and won) a motion for a "summary reversal":

SUMMARY REVERSAL The court may summarily reverse a trial court order where (1) “the proper resolution of the appeal is so obvious and without dispute that briefing would not serve any useful purpose” (Weinstat v. Dentsply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1224), and (2) the parties have waived oral argument (see Moles v. Regents of University of California (1982) 32 Cal.3d 867, 870).

3d DCA responds to delay allegations

The Recorder has Appellate Court Says Lawyer's Suit Over Criminal Case Delays Lacks Merit which reports on the preliminary response filed by the 3d DCA to the pending Supreme Court writ petition. The response argues that Eisenberg lacks standing to and that CCP Section 44 is "directory not mandatory."

[8/12/21 update: The DJ has 3rd District says attorney has no standing to challenge backlog.]

4/1 Staff find "missing opinion"

The MetNews reports Lost C.A. Opinion Is Found, Potentially Inuring to Benefit of Petitioning Inmate about People v. Del Rio, which notes:

After the briefs were submitted, the court became aware the superior court had been unable to locate our prior opinion. We asked court staff to search for a copy of the 1979 opinion, and they were successful in locating a copy.

LA City seeking Appellate Atty

The LA City Attorney's Office Civil Appellate Division has a job opening for a civil appellate attorney. Details about responsibilities, qualifications, and application deadline are here. 

Automatic Stays on Appeal

Appellatey types will want to read the Cal Supremes' unanimous opinion today in Gomez v. San Bernardino County Board of Supervisors (S260209), which discusses automatic stays of injunctions pending appeal -- you know, the old "is it mandatory or prohibitory?" puzzle.

[Prof. Martin's post is here; At the Lectern here.]

Appellate roundup

The DJ reports Former State Supreme Court Justice Ming Chin Joining ADR Services -- "Chin said he expects to handle some cases on construction and employment law, and would welcome cases that deal with scientific evidence."

And the DJ has Judicial Council, 3rd District hire top legal talent in suit over delays (re Jones Day and Reed Smith, respectively).

Tuesday's DJ had the monthly Exceptionally Appealing column titled Butting in on Appeal about intervention on appeal.

The Federal Judicial Conference Committee on Rules of Practice and Procedure is accepting input on proposed changes to FRAP 2 and 4 until February 16, 2022.

Also: All LASC Employees will be required to get vaccinated under new mandatory policy.

CLA's Litigation Section is presenting a Free Webinar featuring its Judicial Advisors, which includes PJ Humes and Justice Duarte, on August 26 at 6 p.m. Register here.

This week Marquette University Law School released its SCOTUS survey, as reported in many places. E.g., Law360's Americans' Approval of Supreme Court Declines, Says Poll.

Cal Supremes 2022 Calendar

 2022 Oral Argument Calendar 

The Supreme Court of California has published its Oral Argument Calendar for next year. The calendar highlights the weeks currently reserved for oral argument and the dates for the court’s weekly conferences and court holidays. Please note all oral argument sessions will continue to be remote until further order from the court.

2d DCA pro tem update

 

The following are currently sitting on assignment in the 2d District:

• Judge Charles S. Crandall of the San Luis Obispo Superior Court, will be sitting Pro Tem in Division One until August 31, 2021
• Judge Brian E. Hill of the Santa Barbara Superior Court, will be sitting Pro Tem in Division Three until September 30, 2021
• Judge Holly A. Thomas of the Los Angeles Superior Court, will be sitting Pro Tem in Division Three until August 6, 2021  
• Judge Audra Ibarra of the Santa Clara Superior Court, will be sitting Pro-Tem in Division Seven until August 31, 2021
• Judge Sam Ohta of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until August 31, 2021

Round-up

• The NLJ has How the COVID-19 Pandemic Impacted Circuit Court Caseloads, noting that the 3d and 1st Circuits saw the biggest drops in appeals filed by during the pandemic (by 27.2% and 16.7%).
• PJ Gilbert's Under Submission DJ column this month is What's in a title? Who cares?
• The DJ's Moskovitz on Appeal has On trial court briefs: the judges speak, about what judges like and don't like--and how much they dislike invective and personal attacks.
• The DJ also has Magistrate judges fill gap for vacant Article III posts which is very interesting for anyone interested in the federal court system. It also supplies the answer to the question "What do the Districts of New Mexico and E.D. Cal. have in common?"
• Also, the DJ has Judgeships could be in question if Newsom is recalled, in which David Ettinger shares an interesting appellate history story:

"according to David S. Ettinger, an attorney with Horvitz & Levy LLP [, w]hen Jerry Brown was governor in 1979, Lt. Gov. Mike Curb — a Republican — took advantage of his absence from the state to nominate Armand Arabian to the 2nd District Court of Appeal. When Brown returned from Washington, he withdrew the appointment and sued Curb. The state Supreme Court sided with the governor. In re: Governorship, 26 Cal. 3d 110 (S. Ct., filed Dec. 27, 1979)."