Proposed Fed Rule changes & more

Law.com has Judges Weigh Tougher Disclosure Requirements for Amicus Filers

• Judge Paul Watford, of the U.S. Court of Appeals for the Ninth Circuit, said [at Wednesday's meeting of the Advisory Committee on Appellate Rules] draft language mandating disclosure if a party contributed above a certain percentage of the amici’s annual revenue could be helpful for judges. Watford suggested a 25% threshold, though the members didn’t land on a concrete number. Watford said the change would give judges “a better sense of just how independent an amicus is from the party” and help in determining how much weight to give a brief.
• Though the panel hasn’t recommended a proposed rule for public comment, other draft language being used to guide the committee would require that a filer tell the court if a party or its counsel has a 50% or greater interest in the ownership or control of the amicus curiae.
• The panel also grappled with whether financial ties between nonparties and the filer should be revealed. Watford said he would want to know if a nonparty amici member gave money specifically for the creation of a brief, but further disclosure could raise First Amendment issues. He said any amendment should specify a high threshold, to avoid requiring that small, crowdfunded contributions be made public.

And see Supreme Court Seeks Comment On Rule Changes For Amicus Briefs and 

Supreme Court Seeks Input On Amicus Rule Changes -- The court said it will "entertain public comment" on the proposed changes sent in writing to the clerk of the court by April 28.

See also this Law.com interview: Maureen Mahoney’s Supreme Court Career

Application Period Opens for Membership in PACER User Group

The federal Judiciary has opened the application period for membership in its public user group that provides advice and feedback on ways to improve electronic public access (EPA) services.

Law360 has 'COVID Ate My Homework' Excuses Aren't Flying In Appeals

More locally, on the delay front, the DJ reports: Appellate lawyers academy urges completion of 3rd District study: "In a letter sent this week, the California Academy of Appellate Lawyers urged the Judicial Council to complete a study of delays on the 3rd District Court of Appeal. Meanwhile, Assembly Judiciary Committee Chair Mark Stone, D-Scotts Valley, questioned why an investigation the California Supreme Court requested six months ago is not complete."

Reminder: CA Courts are closed today for Cesar Chavez Day.

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 April 30, 2022

·  Associate Justice Miriam A. Vogel (Retired) of the Second District Court of Appeal will be sitting Pro Tem in Division One until April 30, 2022

·  Judge Michelle C. Kim of the Los Angeles Superior Court will be sitting Pro Tem in Division Three until April 30, 2022

·  Judge Upinder S. Kalra of the Los Angeles Superior Court will be sitting Pro Tem in Division Three until May 31, 2022

·  Judge Noël Wise of the Alameda Superior Court will be sitting Pro-Tem in Division Seven until April 30, 2022

·  Judge Albert T. Harutunian III of the San Diego Superior Court will be sitting Pro-Tem in Division Eight until April 30, 2022 

"Passim" passes: RIP

Law.com reports that "The Supreme Court on Wednesday released some changes to its rules on the filing of briefs, motions, emergency applications and filings under seal" in US Supreme Court Says It's Passing on 'Passim'--also noting that passim is now verboten.

And:

The Supreme Court of the United States today announced that it will entertain public comment on proposed revisions to its Rules. In addition to a number of technical changes, there are three more substantive amendments proposed. 

First, a new Rule 34.7 sets forth procedures to be followed when a party seeks to file documents under seal.

Second, amendments to Rule 37 remove the requirement that a party seeking to file an amicus curiae brief either obtain consent of the parties or file a motion for leave to file the brief.

And third, an amendment to Rule 37.4 sets forth procedures governing amicus curiae briefs in connection with emergency applications.

Judge Thomas going senior

Ninth Circuit Chief Judge Emeritus Sidney R.Thomas to Take Senior Status

Chief Judge Emeritus Sidney R. Thomas, of the United States Court of Appeals for the Ninth Circuit, has informed President Joseph R. Biden, Jr., that he will assume senior status effective upon the appointment of his successor. In his letter to President Biden, Judge Thomas noted that it has been “a great honor and a privilege to serve as an active judge on the Ninth Circuit Court of Appeals for 26 years.” He recently celebrated the 26th anniversary of his appointment to the Ninth Circuit on March 11, 2022.

3/30 update: Today's DJ has 9th Circuit Judge Sidney Thomas Says He Plans To Go Senior:

• Thomas, 68, is the seventh appointee of a Democratic president to announce he was taking senior status since Biden took office in January 2021.
• The president now has three more vacancies to fill, because 9th Circuit Judge M. Margaret McKeown of San Diego and 9th Circuit Judge Andrew D. Hurwitz announced in January they are taking senior status.

Law360 has Former 9th Circ. Chief Judge Taking Senior Status

Deeper persuasion

Today's Moskovitz on Appeals in the DJ is The Art of Deep Persuasion, where Myron explains that merely citing authority to support an argument (relying solely on the belief that "judges are supposed to follow 'the law'") isn't enough.

Judges are not automatons who robotically follow rules. Judges are human, and they want to do justice. If they think a rule does not further justice in this case, they will seek a way around it. So find a way to go deeper into the rule and explain why it should be applied to this case.

It’s tough to do this for the first time at oral argument, where you’re on the spot and have to think quickly, and it’s especially difficult to turn around strong personalities who might have pretty much already made up their minds by the time oral argument rolls around. So go deep in your briefs, where it really counts — before the judges tentatively decide the case.

In sum, instead of skimming the surface, dig deep. It might help you win.

Today's DJ profile is Ventura Judge Matthew P. Guasco says court is 'safe, sacred space for justice': Without lawyer and judges, the Constitution is 'just a piece of paper,' says the civil trial judge. Judge Guasco "credits his background as an appellate lawyer ... with granting him a 'uniquely invaluable experience' in understanding the significance of a detailed record." He was the presiding judger of the appellate division from 2015-2017.

"I err on the side of explaining my rulings. I do that for a variety of reasons, all of them informed by having been an appellate lawyer ... because I think the parties and the Court of Appeals should know what I've done and why I've done it."

DJ's obit for Ellis Horvitz

Today's DJ has Ellis J. Horvitz, 1928-2022: Litigator, raconteur is credited with creating the appellate law firm.

• Horvitz died March 22, weeks shy of his 94th birthday.
• Born in Cleveland on April 27, 1928, he attended Stanford Law School at the same time as two future U.S. Supreme Court Justices: Sandra Day O’Connor and Chief Justice William H. Rehnquist. He kept a picture including the three of them in his Los Angeles office
• Just a few years after passing the bar in 1951, Horvitz decided he wanted to spend his career in appellate law. He co-founded Horvitz & Levy in 1957 as a firm specializing in the practice. This was then an unusual concept
• Horvitz “briefed more than 80 cases in the California Supreme Court and presented oral argument in more than 50”
• “Ellis was the pioneer. He was the George Washington of appellate practice.”

Law360 has Horvitz & Levy Founder Remembered As Giant Of Appeals Bar

Guerrero swearing in this afternoon!

Governor Newsom to Swear In Justice Patricia Guerrero to California Supreme Court

Governor Gavin Newsom will today swear in Justice Patricia Guerrero to the California Supreme Court, where she will serve as the first Latina justice on our state’s high court. A first-generation Imperial Valley native, Justice Guerrero is a widely respected jurist with experience as an appellate justice, trial court judge, partner at a major law firm and Assistant U.S. Attorney. Justice Guerrero’s nomination to the court was unanimously confirmed by the Commission on Judicial Appointments last week.
Supreme Court Swearing-In Ceremony
WHEN: Monday, March 28, 2022 at approx. 1:30 p.m.
LIVESTREAM: @CAgovernor Twitter page, California Governor Facebook page and California Governor YouTube page.

See Justice Patricia Guerrero Sworn In to California Supreme Court -- Justice Guerrero will participate in the court’s next oral argument session beginning April 5.

Appellate appointments!

 Second District Court of Appeal

Justice Maria E. Stratton, 69, of Los Angeles, has been nominated to serve as Presiding Justice of the Second District Court of Appeal, Division Eight. She has served as an Associate Justice of the Second District Court of Appeal, Division Eight since 2018. Justice Stratton served as a Judge at the Los Angeles County Superior Court from 2006 to 2018. She served as Federal Public Defender for the Central District of California from 1993 to 2006 and held several positions at Talcott, Lightfoot, Vandevelde, Woehrle and Sadowsky from 1985 to 1993, including Managing Partner, Partner and Associate. She was an Associate at Overland, Berke, Wesley, Gits, Randolph and Levanas from 1984 to 1985. Stratton served as a Deputy Federal Public Defender at the Office of the Federal Public Defender, Central District of California from 1981 to 1984 and as a Law Clerk for the Honorable Harry Pregerson at the U.S. District Court for the Central District of California and at the U.S. Court of Appeals for the Ninth Circuit from 1979 to 1981. She earned a Juris Doctor degree from the University of California, Berkeley School of Law. She fills the vacancy created by the retirement of Justice Tricia Ann Bigelow. This position requires the completion of a review by the State Bar’s Commission on Judicial Nominees Evaluation and confirmation by the Commission on Judicial Appointments. The Commission consists of Chief Justice Tani Cantil-Sakauye, Attorney General Rob Bonta and Senior Presiding Justice Arthur Gilbert. Justice Stratton is a Democrat.
 
Fourth District Court of Appeal

Martin N. Buchanan, 60, of San Diego, has been nominated to serve as an Associate Justice of the Fourth District Court of Appeal, Division One. Buchanan has been a Sole Practitioner since 2010. He was a Partner at Niddrie, Fish & Buchanan LLP from 2005 to 2010 and a Sole Practitioner from 2004 to 2005 and 1992 to 2003. Buchanan served as a Research Attorney at the Fourth District Court of Appeal from 2003 to 2004 and was a Staff Attorney at Appellate Defenders Inc. from 1990 to 1992. He was an Associate at Remcho, Johansen & Purcell from 1988 to 1990 and at Farnsworth, Saperstein & Seligman from 1987 to 1988. He served as a Law Clerk for the Honorable Robert F. Peckham at the U.S. District Court for the Northern District of California from 1986 to 1987. Buchanan earned a Juris Doctor degree from Harvard Law School. He fills the vacancy created by the retirement of Justice Patricia D. Benke. This position requires the completion of a review by the State Bar’s Commission on Judicial Nominees Evaluation and confirmation by the Commission on Judicial Appointments. The Commission on Judicial Appointments consists of Chief Justice Tani Cantil-Sakauye, Attorney General Rob Bonta and Senior Presiding Justice Manuel A. Ramirez. Buchanan is a Democrat.
 
The compensation for each of these positions is $257,562.

Rising bar dues?

Today's DJ has State Bar board votes to seek annual inflation hike in fees

• "The Legislative Analyst’s Office has recommended that the State Bar not do this,” the bar staff’s agenda outline acknowledged, as it recommended the push for automatic annual fee hikes."
• "A written bar staff presentation suggested, “An appropriate adjustment would be a 4.7% increase from last year.”"
• "California bar fees are $515 per year for active attorneys. In comparison, New York State bar annual dues are $275 for most members."

Sad passing of a legend!

H&L announces:

It is with profound sadness that we at Horvitz & Levy announce the passing of our founding partner, Ellis J. Horvitz. Ellis passed away peacefully at home, holding the hand of his beloved wife Angela. A pioneer in the specialized practice of civil appellate litigation, Ellis had a long and distinguished career as a member of the California bar and was held in the highest regard by clients, colleagues and judges. He will be deeply missed.

(So now's a good time to watch BHBA's 2021 program War Stories with Ellis Horvitz here.)

State Bar's CBLS accepting applications

"The State Bar of California is excited to share with you that the California Board of Legal Specialization (CBLS) is accepting appointment applications from lawyers and nonlawyers for the 2022 term. Applications are accepted year-round. For 2022 consideration, please apply by Friday, April 1, 2022.

CBLS seeks lawyers and nonlawyers to help oversee the legal specialist certification program. Recommend rules, policies, and guidelines. Advise the Board of Trustees on important initiatives and help the State Bar fulfill its public protection mission. Nonlawyers receive a small paid stipend for their time. Apply by Friday, April 1, 2022. If you are interested in appointment to CBLS, the State Bar invites you to apply.

For more information on current opportunities to serve on a State Bar committee, please visit the State Bar website. For questions, please email Appointments@calbar.ca.gov."

4/1's masking guidance

Effective April 2022, the Fourth District Court of Appeal, Division One, is updating its masking guidelines in keeping with state and local public health guidance. Face coverings in the courtroom will be required for all visitors who are unable to provide proof of vaccination for COVID-19. Those who are fully vaccinated may remove their masks while in the courtroom. While in-person argument will return as the default method of appearance, counsel may elect to appear remotely.

We have a new Supreme Court Justice!

“I’m honored and deeply humbled by this opportunity. I am mindful of the solemn responsibility, and I commit to fulfilling and discharging those responsibilities. I promise to uphold the rule of law and to uphold values of this state and our country.”

The Recorder reports First Latina Justice Patricia Guerrero Affirmed to California Supreme Court-- Guerrero succeeds Justice Mariano-Florentino Cuéllar, who left the court in October.

• Guerrero, 50, is a graduate of the University of California, Berkeley and Stanford Law School. She was an assistant U.S. attorney in the Southern District of California from 2002 to 2003, and she became a partner at Latham & Watkins in 2006. She was a San Diego County Superior Court judge from 2013 to 2017, including a year as supervising judge of the family law division, before being appointed to the Fourth District Court of Appeal, Division One, in San Diego.
• Her father, Jorge, attended the hearing in San Francisco, as did her sister, Claudia, husband, Joe, and her 15-year-old son, Anthony. Her 14-year-old son, Christopher, watched remotely.
• Guerrero started working at a grocery store when she was 16 and graduated as co-valedictorian in high school.
• Guerrero teared up as she thanked her mother, who died recently from breast cancer. “She taught us to be strong, compassionate and independent,” Guerrero said. “She showed us the importance of family” and to “thank God for our blessings."

[3/23 Today's DJ has Appellate Justice Patricia Guerrero confirmed to state high court; Bloomberg has 

First Latina Justice Confirmed to California Supreme Court: “I am humbled to be here recognizing the historic significance of this nomination as the first Latina to ever be appointed to the California Supreme Court. I embrace this nomination knowing that I’m not here today on my own. I stand of the shoulders of my grandparents and my parents who came to this country, even though it would be a struggle for them”; Law360 has Ex-Latham Atty Confirmed As 1st Latina On Calif. High Court]

CAAL 50th Anniversary

 This year marks the 50th anniversary of the founding of the California Academy of Appellate Lawyers. The Administrative Presiding Justices Advisory Committee (a committee chaired by the Chief Justice and consisting of the six APJs of the districts) have marked the occasion with the following letter:

On behalf of the California Courts of Appeal, we extend our hearty congratulations to the Academy of Appellate Lawyers on its 50th anniversary. Although we cannot be with you in person at this year’s anniversary retreat, we send our best wishes and will be celebrating with you in spirit.

For fifty years, the Academy has fostered and honored excellence in appellate advocacy. In doing so, it has enriched the quality of appellate practice, and this in turn has helped to strengthen our justice system and democracy.

We thank the Academy for its decades of service, and we look forward to working together to advance our shared interests in promoting appellate excellence and furthering the ends of justice.

Guerrero confirmation hearing now!

 

Commission on Judicial Appointments to Consider Appointment of Justice Patricia Guerrero to the California Supreme Court

The public hearing on March 22 will be broadcast live beginning at 11 a.m.

[Update:  Justice Patricia Guerrero Confirmed to California Supreme Court--Guerrero is the first Latina justice to serve on the state's high court.]

Delay studying delay?

Today's DJ has Study of 3rd District delays by Judicial Council hasn’t started --  "In September, the California Supreme Court recommended "the Judicial Council complete an investigation of alleged delays in the 3rd District Court of Appeal's disposition of criminal appeals" within 180 days. ... That deadline passed last week with no report. A spokesman for the Judicial Council said the court is awaiting a report from the Commission on Judicial Performance and questioned if the council "even can conduct an investigation.""

Today's DJ also has Moskovitz on Appeal, in Trial Court Winners Can Become Appellate Court Losers, about the dangers of winning in the trial court on flimsy grounds that are destined to be reversed.

And today's DJ has Justice Hoffstadt's You Complete Me, about the recent SCOTUS decision in Hemphill v. New York, "the latest chapter in what might be called 'The Chronicles of Crawford [v. Washington, 541 U.S. 36 (2004)].""

9th Cir.'s new librarian

The 9th Circuit has a new Circuit Librarian, Jodi Kruger, who will direct all all of the federal court law libraries within the circuit. Previously she was the Director of Reference & Research Services at UCLA's Law school, where she also taught Advanced Legal Research. Before UCLA, Kruger was the Associate Director for Reference Services at the Pepperdine University School of Law Library. Kruger also previously practiced law, specializing in employment and labor law. She worked at Littler Mendelson and Epstein, Turner & Song and was in-house employment counsel for Countrywide Home Loans. Kruger received her B.A. in Government from Cornell University, where she was the President of the speech and debate team. She subsequently earned her J.D. from Cornell Law School, where she was on the Cornell International Law Journal and was Chancellor of the moot court board. Following more than a decade of legal practice, Kruger returned to school, obtaining her M.L.I.S. with distinction from UCLA Graduate School of Education and Information Science.

1st DCA heading back toward in-person arguments

From the 1st District's website: Pursuant to Misc. Order 2020-2, all in person oral argument sessions in the Court of Appeal, First District, are suspended. Counsel who choose to present oral argument must do so via video conference. Commencing April 4, 2022, the court will consider conducting in-person argument for specific cases. Notices of Oral Argument issued by the court will include an option for parties to jointly file a motion to conduct in-person argument in the courtroom. Such a motion would be granted or not at the court’s discretion.

2d District pro tem update

The following judges are currently sitting on assignment with the Second District:

·  Judge Charles S. Crandall of the San Luis Obispo Superior Court will be sitting Pro Tem in Division One until April 30, 2022

·  Associate Justice Miriam A. Vogel (Retired) of the Second District Court of Appeal will be sitting Pro Tem in Division One until April 30, 2022  

·  Judge Joseph M. Lipner of the Los Angeles Superior Court will be sitting Pro Tem in Division Three until March 31, 2022

·  Judge Michelle C. Kim of the Los Angeles Superior Court will be sitting Pro Tem in Division Three until April 30, 2022  

·  Judge Upinder S. Kalra of the Los Angeles Superior Court will be sitting Pro Tem in Division Three from March 21, 2022 until May 31, 2022

·  Judge Noël Wise of the Alameda Superior Court will be sitting Pro-Tem in Division Seven until April 30, 2022  

·  Judge Albert T. Harutunian III of the San Diego Superior Court will be sitting Pro-Tem in Division Eight until April 30, 2022

Women at SCOTUS program

Nina Totenberg

On March 31 from 11 to noon, Covington's Women's Forum presents a free webcast program Historic Transitions for Women at the U.S. Supreme Court - An Inside Perspective

In celebration of Women's History Month, please join us for a conversation focused on recent transitions at the U.S. Supreme Court, including the historic nomination of a Black woman to serve as a Supreme Court Justice, and the broader implications for the representation of women on the nation's highest Court. The program will feature Nina Totenberg, NPR's award-winning legal affairs correspondent and Covington partners Beth Brinkmann, a co-chair of Covington's Appellate & Supreme Court Practice who has argued 26 cases before the Court, and Phyllis Jones, a co-chair of Covington's Product Liability & Mass Torts Practice and member of the firm's Management Committee.

Law.com has Judiciary Urged to Tweak Conflict of Interest Rule for Rejecting Amicus Briefs

The Reporters Committee for Freedom of the Press suggested the rule be updated to mandate that when a panel strikes a brief, it cite the rule as the reason and identify which amici or amicus curiae counsel would have resulted in a judge's disqualification.

Catching up!

All sorts of state and federal appellate news of note in the past few days!

CALIFORNIA
Chief Justice Delivers State of the Judiciary Address -- Chief Justice Tani G. Cantil-Sakauye released today her annual State of the Judiciary address, recorded March 10 prior to the first in-person Judicial Council meeting since the COVID-19 pandemic began. Watch it here (12 minutes).

Guerrero Rated 'Exceptionally Well Qualified' for California Supreme Court -- Guerrero is expected to face an easy hearing Tuesday when she goes before the Commission on Judicial Appointments. ... If confirmed, Guerrero would be the first Latina to serve on California’s Supreme Court.

Supreme Court Names New Ethics Code Committee Chair
Justice Marla Miller will head the committee tasked with evaluating and proposing amendments to the California Code of Judicial Ethics.

FEDERAL
Federal Appeals Judge Suggests Yale Law Protesters 'Should Be Disqualified for Potential Clerkships' -- 
Former U.S. District Judge Jeremy Fogel of the Northern District of California said an email from Circuit Judge Laurence Silberman raises the question of “whether a sitting federal judge should comment on a politically charged situation because of the possible perception of bias.” Law360 has Judge Questions Clerkships For Students Who Disrupt Events

The U.S. Court of Appeals for the D.C. Circuit will resume holding in-person oral arguments on March 30, 2022. The revised Protocols for In-Person and Hybrid Oral Arguments are now available on the court's website.

Law.com has SCOTUS Advocates Seek Permanent Livestreaming of Oral Arguments (The full letter can be read here.) Law360 has 40 Supreme Court Lawyers Urge Roberts To Keep Live Audio

Law.com has Judicial Conference OK's System to Automate Release of Judges' Financial Disclosures --Disclosures would be accessible online for the person who made the request to view and the process to obtain them would be quicker. Bloomberg has Judiciary Approves Own Approach on Judges’ Financial Disclosures -- The online system approved by the Judicial Conference at its biannual meeting stops short of making all financial disclosures publicly available, and focuses instead on streamlining the process for getting information to those who request it. Law360 has Federal Courts To 'Automate' Judges' Financial Disclosures. And from the Courts: Judicial Conference Adopts Transparency Measures -- 

Taking steps to increase transparency and public access, the federal Judiciary’s policy making body today approved automating the release of judges’ financial disclosure reports, amending its conflict screening policy, and expanding the scope of its audio streaming pilot project.

Judiciary Releases Workplace Conduct Working Group Report, Recommends 9 Changes to Build on Progress Made to Date -- In a wide-ranging report, the Judiciary’s Workplace Conduct Working Group said its program to ensure an exemplary workplace has achieved broad improvements, by adding abusive conduct to longstanding protections against discrimination and harassment, imposing an express prohibition on abusive conduct, and improving processes to make it easier for employees to report and resolve workplace concerns.

Ex-Judiciary Employees Tell Congress Harassment, Discrimination Policies Are 'Severely Flawed' -- 
One of the former judiciary employees is suing the Administrative Office of the U.S. Courts and Judicial Conference over its procedures for resolving harassment complaints. Law360 has It's Time To Hold DC Judges Accountable For Misconduct. 

Bloomberg has Judiciary Builds on #MeToo Response with New Recommendations -- Monetary remedies for judiciary workers in misconduct disputes and an anonymous nationwide survey for employees are among recommendations in a new report by a working group on judiciary misconduct.

Keep the feed!

Law.com has SCOTUS Advocates Seek Permanent Livestreaming of Oral Arguments

• 
  A “who’s who” of veteran U.S. Supreme Court practitioners urged the justices on Tuesday to make permanent their pandemic-related policy of livestreaming audio of oral arguments for the public.
• Forty advocates in a letter to Chief Justice John Roberts Jr. wrote that, since the policy change, “scores of law professors have used the streams as teaching tools of appellate advocacy. Hundreds of media outlets have linked to them so listeners and viewers could hear directly from the justices, unfiltered and in real time, about the issues the court was grappling with. And tens of thousands of Americans have come to understand the seriousness and the care with which you and your colleagues treat each case and each advocate who comes before the court.”
  
• The Supreme Court has been livestreaming argument audio for the public since May 2020.
• The practitioners, in a letter to Chief Justice John Roberts Jr., wrote that livestreaming and same-day posting of the audio has had many positive effects for academics, historians and the public in general.
• Some of the letter signers also would like livestreaming of the justices' summaries of their opinions if they return to their practice of summarizing opinions from the bench.
The full letter can be read here.

Also, from CLA's Litigation Section: the March 2022 issue of Litigation Update is now online, keeping you up to date on current case law.

Fed Court Stats out!

Judiciary Releases Annual Report and Judicial Business 2021 In 2021, the Judiciary confronted uniquely trying times: The second straight year of the global pandemic, unanticipated spikes in caseloads, and cybersecurity threats to government technology systems. By finding innovative solutions to emerging problems, the Judiciary met these challenges while keeping vital ongoing initiatives on track, writes Judge Roslynn R. Mauskopf, the AO Director, in her Annual Report. The Judiciary also published Judicial Business for fiscal year 2021. Read more.

Courts of Appeals data

• Filings in the regional courts of appeals declined 8 percent to 44,546 in 2021.
• Filings by pro se litigants, which accounted for 48 percent of new cases, fell 9 percent to 21,423.
• Civil appeals dropped 9 percent to 23,256.
• Criminal appeals rose 10 percent to 10,625.

Ninth Circuit data

• Median time from notice of appeal to opinion - 13.1 months (compare w/the 2d Cir. at 14.5 and 1st Cir. at 13.8; the fastest is the 8th Cir. at 4.3) Table B-4
• For civil appeals, 13.5 months (Table B-4A)
• Reversal rate in private civil cases is 13.3% (Table B-5)

2d DCA in-person argument update

March 14, 2022 -- In-person oral argument update
Second District Court of Appeal to resume in‑person arguments effective May 2022

This announcement rescinds the Administrative Presiding Justice’s March 16, 2020, order suspending in‑person oral arguments.

The Second District Court of Appeal, is resuming in‑person arguments consistent with updated state and local public health guidance. Face coverings in the courtroom will be required for all visitors regardless of vaccination status. Those who are fully vaccinated may remove their masks only while presenting oral argument. Division Two will conduct the first in‑person oral argument on May 19, 2022. The District’s policy is for in-person argument and may begin for the entire district as early as June 2022 subject to our experience with changing and fluid circumstances. Until further notice, each division will make adjustments in accordance with its special needs and circumstances.

For any counsel appearing in-person for oral argument, please be advised you will be required to provide proof of vaccination or proof of a negative test result for COVID‑19 within 48 hours of your scheduled appearance. Those who do not provide proof as outlined will not be permitted to enter the courtroom. The Clerk’s Office will be providing more detailed information regarding the procedures which will be used to conduct the oral arguments. Public access will be limited consistent with health and safety protocols.

Dissents & Advisory Opinions

Today's DJ has a book review by LASC Judge Michael Stern: Justice John Marshall Harlan's vision of America, founded on the concept of equality for all -- In "The Great Dissenter," Peter S. Canellos delves into Justice John Marshall Harlan's life experiences and judicial philosophy and probes the sources of Harlan dissents that ran against the grain of his Supreme Court colleagues.

Today's DJ also has H&L's David Axelrad's The ‘advisory opinion’ doctrine of our appellate courts -- If you settle a case on appeal and then ask the court to dismiss the case as moot, don’t be surprised, particularly where a decision in the case is imminent, if the court declines to do so and orders you to appear at oral argument because the court has found an issue of public importance that it wants to decide.

Law360 has Female Black Attys Look to Jackson's 'Fresh Perspective' which begins:

• Judge Ketanji Brown Jackson's nomination to the U.S. Supreme Court is a watershed moment for Black women practicing appellate law, many of whom are watching with "immense pride" and "joy" as they witness one of their own on the verge of becoming the first Black female justice to serve on the high court in its 232-year history.

and notes:

• According to data from the Federal Judicial Center, Black women hold 45 of the current 793 lifetime-appointed federal judgeships in active service across the country. At major U.S. law firms, they made up 3.17% of associates last year and continue to represent fewer than 1% of all partners, according to the National Association for Law Placement's diversity report released in January. Despite slight gains in 2021, fewer than 5% of partners at firms of all sizes are women of color, the report said.

CLA's Solo & Small Firm Section presents Navigating California Civil Appeals for Litigators, on March 30 (from 5 to 6 p.m.) presented by appellate specialist Janet Gusdorff.

As for cases with interesting appellate wrinkles, see one here and here. And appellate sanctions imposed here.

Federal e-filing problems today [Friday 3/11]

The Ninth Circuit alerts us that: ATTENTION: CM/ECF and ACMS are unavailable at this time due to a major nationwide service disruption involving PACER. This page will be updated as soon as the systems are available again. Please see Circuit Rule 25-5(c)(2) if you are not able to meet a filing deadline as a result of this outage.

[Update on Saturday, 3/12: As of approximately 8:10 AM Pacific time, all services have returned to normal.

Please see https://www.cand.uscourts.gov/ for additional information.]

SCOTUS history tweets & clerkship panel

The Marble Palace Blog: Tweeting Supreme Court History -- Duke Law professor Marin Levy has found a way to make Supreme Court history approachable and interesting, with small bites and Twitter threads.

Levy’s latest gem is a March 3 Twitter thread about Justice William Brennan Jr. and how he finally agreed to hire a female law clerk after years of favoring male clerks only. Levy drew readers in with this introduction: “My heart is wide open for this story tonight … It’s about how Justice William Brennan, the liberal lion, was convinced to hire his first woman law clerk and who that clerk was. (Hint: She’s a judge now herself.)” That clerk was Marsha Berzon, now a senior judge on the U.S. Court of Appeals for the Ninth Circuit.

Also of note: SCCLA and other bar groups are presenting a free webinar on April 22 at noon titled U.S. Supreme Court Clerkships, with a special intro by Justice Goodwin Liu. Register here.

JC votes to end emergency Covid rules

The Judicial Council voted to end remaining temporary emergency rules it approved to address the impacts of the COVID-19 pandemic.

On June 30, the council will sunset emergency rules still in effect, which include rules relating to:

• Remote appearances and personal appearance waivers by criminal defendants
• Priority for certain juvenile proceedings
• Temporary restraining or protective order renewals
• Deadlines to file a civil action or bring a civil case to trial
• Changes to support orders

The decision to sunset the remaining emergency rules comes after Gov. Gavin Newsom’s recent rollback of executive orders related to the state’s pandemic response and in response to the courts’ increasing ability to accommodate the changes resulting from the pandemic.

In addition, Chief Justice Tani G. Cantil-Sakauye also rescinded, effective April 30, her remaining statewide emergency measures established to address pandemic-related challenges to court operations.

2d DCA in-person in April

Second District Court of Appeal to resume in person arguments effective April 2022

Beginning in April 2022, the Second District Court of Appeal, is resuming in person arguments consistent with updated state and local public health guidance. Face coverings in the courtroom will be required for all visitors regardless of vaccination status. Those who are fully vaccinated may remove their masks only while presenting oral argument. Division Two will conduct the first in person oral argument on April 21st. The District’s policy is for in-person argument and may begin for the entire district as early as May 2022 subject to our experience with changing and fluid circumstances. Until further notice, each division will make adjustments in accordance with its special needs and circumstances.

For any counsel appearing in-person for oral argument, please be advised you will be required to provide proof of vaccination or proof of a negative test result for COVID 19 within 48 hours of your scheduled appearance. Those who do not provide proof as outlined will not be permitted to enter the courtroom. The Clerk’s Office will be providing more detailed information regarding the procedures which will be used to conduct the oral arguments. Public access will be limited consistent with health and safety protocols.

This announcement rescinds the Administrative Presiding Justice’s March 16, 2020, order suspending in person oral arguments.

Fed rules favor remote hearings

Law360 today has Joshua Sohn's Remote Hearings Should be the Default in Civil Litigation, in which he argues that "remote hearings save travel time and expense, which also improves attorney work-life balance and even reduces the carbon emissions that accompany jet travel." "Under the federal rules, there is a strong argument that courts should presumptively favor remote hearings that reduce travel costs, unless the court finds that an in-person hearing is necessary to do justice in the case before it."

Rule 78 empowers courts to adjudicate motions with or without hearings, which implies the corollary power to decide what type of hearing is most appropriate.

Rule 1 states that all the Federal Rules of Civil Procedure should be construed and administered "to secure the just, speedy, and inexpensive determination of every action and proceeding."

Moreover, the 1993 advisory committee note to Rule 1 states that this rule "recognize[s] the affirmative duty of the court ... to ensure that civil litigation is resolved not only fairly, but also without undue cost or delay."

Most civil hearings are essentially an oral colloquy between the lawyers and the court. This sort of colloquy can be done equally well over a telephone or videoconference line as opposed to in person.

He concludes: "remote hearings should be the default in civil litigation, while in-person hearings need to justify their existence."

Appealing from writ petition

4/1 publishes this appellate procedure opinion today, explaining: 

We publish our opinion to explain how Dhillon supports the conclusion that Laraway and City of Calexico were correctly decided, and to reiterate the critical importance of determining whether a ruling on a petition for writ of mandate is a final judgment in seeking appellate review of such a ruling.

Also of interest today is this decision here, which accounts for sealed material by being redacted for the public.

And How Appealing has “A front-row seat to history: 45 years inside the Supreme Court; Longtime sketch artist Art Lien will retire at the end of the Court’s current term.” Adam Longo of Washington, DC’s WUSA 9 has this report.

Chief Judge Murguia on 9th Cir. operations

"We've learned a lot about appearing by video."

Today's DJ reports on yesterday's BASF Appellate Section program with 9th Circuit Chief Judge Mary Murguia in Remote hearings might be new normal, circuit chief says.

• An appointee of President Barack Obama in 2011, Murguia - a Kansas native based in Phoenix - is considered a moderate liberal who will lead a court divided between 16 judges appointed by Democratic presidents and 13 chosen by Republicans.
• As chief judge for the next seven years, Murguia will have considerable administrative responsibilities.
• In her capacity as chief judge, which she became as the most senior judge on the 9th Circuit below the age of 65, Murguia will sit on every en banc panel. She discussed her background, in which the Latina grew up in a working-class neighborhood in Kansas City. Her father worked at a steel mill and spent time in Mexico as a child. Her mother was born there.
• the appellate court is moving back to normal as it gradually tries to resume normal operations during COVID-19. ... "Most judges are going to the court" ... That will mean more attorneys will be attending 9th Circuit oral arguments in person, although Murguia said virtual appearances will still be permitted pending further consideration.

In other SoCal 9th Circuit news, UCI's Moot Court Finals on April 1 at 3:30 will feature a final judging panel consisting of 9th Circuit Judges Paez and Rawlinson, and 6th Circuit Judge Bernice Donald.

Register to watch here.

Free USF webinar on 3/24 with 3 CSC justices

 

As first reported on At The Lectern: Justice Carol Corrigan will moderate a free Zoom webinar with retired Justice Ming Chin and Justice Martin Jenkins. The March 24 virtual event (5:30 to 6:30), titled “Their Supreme Callings,” is sponsored by the University of San Francisco. Both Chin and Jenkins are USF law school alums.

Fed. Circuit clerk's office earns award

Clerk’s Office Earns Award for Cutting Case Processing Time in Half

Case filings are being processed more efficiently than ever in the U.S. Court of Appeals for the Federal Circuit, thanks to several procedural improvements made by the Clerk’s Office. The court’s administrative arm effectively cut the case processing time for submitted documents and filings in half, while also increasing the accuracy of how documents are submitted to the court to as high as 95 percent, up 13 percent since the improvements were made.

On March 3, the Clerk’s Office was recognized for its innovation when it received an award and certification(link is external) from the American Society for Quality (ASQ) Government Division, an organization that objectively evaluates the quality of government operations.

(More here.) 

3d DCA wants your input re in-person arguments

"If you are an attorney presenting oral argument in this Court [the 3d District Court of Appeal], we want to know how you feel about resuming in-person oral arguments in the future. If you have about five minutes, please consider submitting your thoughts through a brief survey. Your anonymous responses will help the court to improve oral arguments. Please submit your responses by March 25, 2022. Thank you for your time and feedback.

Take the survey here: https://forms.office.com/g/6Bjn378QXB"