SCOTUS Memorable Moments this term

Bloomberg Law has Supreme Court Arguments’ Most Memorable Moments So Far This Term

• Arguments are longer by 10 minutes on average
• Supreme Court oral arguments keep getting longer, which can be advantageous or hazardous for the attorney at the lectern depending on their level of experience and how well they’ve prepared.
• Arguments last term and so far this term averaged 92.5 minutes compared to nearly 84 minutes in 2021
• Term has had surprising and cringe-worthy moments (detailed in the article)
  

The NLJ has How Supreme Court Practice Has Changed (And Stayed the Same) Heading Into 2024 -- With cert grants having slowed to a trickle, many appellate attorneys have shifted their focus to lower courts.

pro tem updates & year-end transitions

The following judges are currently sitting on assignment in the 1st District:

• Judge Arturo Castro of Alameda County Superior Court will be sitting pro tempore in Division One until February 29, 2024.
• Judge Charles A. Smiley III of Alameda County Superior Court will be sitting pro tempore in Division Four until February 29, 2024.

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

• Judge Corey G. Lee of the San Bernardino Superior Court will be sitting Pro Tem in Division Five until January 31, 2024
• Judge Rebekah B. Evenson of the Alameda Superior Court will be sitting Pro Tem in Division Seven until January 15, 2024

Today's DJ has 9th Circuit’s en banc system loomed large in 2023 -- Few cases are decided by en banc panels, but high-profile disputes on the First Amendment’s free exercise of religion clause, Second Amendment litigation, and a significant abortion case have had major decisions this year.

The DJ also has California judicial officers transitions in 2023, listing the following appellate items:

Appointments:

• Rashida Adams 4/17 2nd Second District Court of Appeal
• Daniel Bromberg 1/13 6th District Court of Appeal
• Danny Chou 6/23 1st District Court of Appeal
• Tari Cody 4/17 2nd District Court of Appeal
• Ana de Alba 11/13 Judge, 9th U.S. Circuit Court of Appeals
• Kelli Evans 1/3 California Supreme Court
• Patricia Guerrero 1/3 California Chief Justice
• Anthony Johnstone 5/7 9th U.S. Circuit Court of Appeals
• Gonzalo Martinez 7/10 2nd District Court of Appeal
• Audra Mori 4/17 2nd District Court of Appeal
• David Rubin 6/23 4th District Court of Appeal
• Helen Zukin 7/10 2nd District Court of Appeal

Retirements:

• Cynthia Aaron 1/12 4th District Court of Appeal
• Tani G. Cantil-Sakauye 1/2 California Chief Justice
• Halim Dhanidina, 4/1 2nd District Court of Appeal
• Nora N. Manella 1/31 2nd District Court of Appeal
• Stuart R. Pollack 1/1 1st District Court of Appeal
• Marsha Slough 8/31 4th District Court of Appeal
• Thomas Willhite 1/31 2nd District Court of Appeal

Resignation: Paul J. Watford, 5/31 9th U.S. Circuit Court of Appeals
Deaths: Robert R. Devich. 5/12 Judge, 2nd District Court of Appeal (Ret.)

"Judicial appointments treadmill"

The DJ has Newsom has struggled to replace departing judges -- According to figures compiled by the Daily Journal, at least 87 California judges and justices have retired this year through November — a number will probably rise significantly once retirements through the end of the year are tallied — along with four deaths among sitting judges.

• Gov. Gavin Newsom found himself on a judicial appointments treadmill in 2023: he’s been appointing judges faster than any governor in recent history, but he’s barely kept up with a historic wave of retirements.
• Through Dec. 26, Newsom has appointed 134 superior court judges and 12 appellate justices in 2023. This total of 146 is the most since Gov. Jerry Brown appointed 193 judges and justices in 2018 and the first two days of 2019.
• According to the monthly Judicial Vacancy reports published by the Judicial Council, there were 125 vacancies on Jan. 1, 111 on superior courts and 14 on the appellate bench. On Nov. 1, the most recent date currently available, there were 95 open seats, 89 on superior courts and 6 on the appellate bench. The vacancy numbers could drop again when they are adjusted to reflect 18 superior court judges and two appellate justices he appointed on Dec. 7.

CEB has posted its annual webinar Key Developments in Appellate Practice 2023, featuring Justices Hoffstadt and Kim.

Pro bono by appellate court lawyers!

Think that pro bono work is just for private sector attorneys? Think again! And see: How Judicial Branch Attorneys Contributed to the Community in 2023

In 2023, California appellate attorneys helped a dozen refugee attorneys and judges from Afghanistan restart their careers in the United States; supported civics initiatives; and judged moot court competitions.

• In San Francisco, 50 attorneys who work for the California Supreme Court and First District Court of Appeal have also logged hundreds of pro bono hours during 2023.
• Erin Rosenberg, a staff attorney for Chief Justice Guerrero, launched a listserve in 2019 to provide pro bono opportunities that meet the guidelines for judicial attorneys. Those who work for the branch are barred from taking cases that might come before the court, for example.

Proposed SCOC employee conflict of interest code

The Supreme Court of California invites public comment on a proposed amended Conflict of Interest Code for Designated Employees of the Supreme Court of California for the eventual consideration and approval by the Chief Justice. Comments may be submitted via email to coi.feedback@jud.ca.gov. The deadline to submit comments is January 11, 2024.

CJA hearings set for Jan. 30

Commission to Consider Appointments to Courts of Appeal
The Commission on Judicial Appointments will hold public hearings on Jan. 30 to consider two appointments to appellate courts in San Francisco and Sacramento.
The Commission on Judicial Appointments will hold public hearings on Tuesday, Jan. 30 starting at 2:30 p.m. to consider two appellate court appointments by Gov. Gavin Newsom.

The commission will consider the following appointments during hearings held in the Supreme Court Courtroom, located on the fourth floor of 350 McAllister Street in San Francisco:

• Judge Monique Langhorne Wilson as associate justice of the First District Court of Appeal, Division One (San Francisco)
• Aimee Feinberg as associate justice of the Third District Court of Appeal (Sacramento)

1/1's J. Margulies retires

Justice Sandra L. Margulies retired last week. She had been an associate justice in Division One since January 2002. Before her service on the Court of Appeal, she was for 14 years a judge on the Alameda County Superior Court. She has served on several Judicial Council advisory committees and other bodies, including the Task Force on Jury Instructions (1998-2005) and the Criminal Jury Instruction Advisory Committee (2006-11), which she also chaired. She served on the planning committee and as faculty for the California Judicial College and the New Judges Orientation Program. Justice Margulies participated in 3,307 decisions of the First District, and wrote opinions in 1,696 of those.

Blue, Yellow, or ...

 

In response to yesterday's DJ piece by Zareh Jaltorossian, Judge Helen Williams writes that not all superior court judges want BlueBook citations; some prefer YellowBook. See Some superior court judges prefer the California Style Manual.

And Beds begins this unpub today with: "As Ralph Waldo Emerson once wrote, “Money often costs too much.” In this case, money appears to have cost two siblings their relationship."

Roundup time

Today's DJ has Zareh Jaltorossian in Throwing the book at improper citations, sharing some general writing advice and urging that:

For trial court briefs, stick with the simpler Bluebook format we all learned in law school. For appellate briefs, follow the California Style Manual. Don’t combine the two systems. And when in doubt, call an appellate lawyer for advice. We’re always happy to talk citation format.

Today's DJ also has  Myron Moskovtiz's How to use precedent cases - Part 1, about non-binding precedent.

Here's an interesting unpub from 4/3, in which the appellant copied a dissenting decision from an unpub'd case (Srabian) to make an argument, but did not the cite case. The respondent calls this out, and here's what the court has to say:

Citing to rule 8.1115’s prohibition on citing to nonpublished cases, [Respondent] replies [Appellant] abandoned the issue because it copied Justice Kathleen Meehan’s dissenting opinion verbatim. [A] does not respond to [R's] assertion that it copied the dissenting opinion verbatim; it appears [A] did. [A] answers it did not cite to Srabian (indeed it did not mention Srabian at all in its opening brief), but merely adopted the dissenting opinion’s reasoning, which is permissible. We need not weigh in on this novel dispute. We recognize though that with the advent of online legal databases and the posting of nonpublished opinion we are certain the “adoption” of legal reasoning is common practice.

And NLJ has 'The Glue of This Court': Justices, Clerks Receive O'Connor's Casket at Supreme Court -- The nation's first female justice lies in repose at the Great Hall of the Supreme Court.

Inside the Great Hall, O’Connor’s casket was placed upon a catafalque that once supported the body of President Abraham Lincoln as he lay in state in the U.S. Capitol Rotunda after his assassination in 1865. The platform, covered in decorative black cloth, was loaned to the court by Congress for the ceremony.

O’Connor’s invitation-only funeral service will take place Tuesday at the National Cathedral. It will be livestreamed at cathedral.org.

Also of note is the Final Report of 2023 Legislation of Interest to Appellate Courts and the Judicial Council's Summary of Court-Related Legislation

Sunstein on Constitutional Interpretation

The Wall St. Journal has a book review of Cass Sunstein's new book: See ‘How to Interpret the Constitution’ Review: Judicial Values

In other news... If you're in a supreme court, it's essential to fairly and properly describe what the intermediate court did... See Law360's Colo. Justice Slams Atty: 'It's Why People Don't Like Lawyers' -- "You may know, I came from the Court of Appeals," [CO Supreme Court] Justice Gabriel said. "And it's troubling to me when I read opinions or read briefs that I think misrepresented what the Court of Appeals did."

7 Tips from The Portia Project

The Record has Brief Writing Tips From the Judicial Guests of The Portia Project Podcast -- Appellate lawyer M.C. Sungaila, creator and host of the Portia Project podcast, has interviewed nearly 100 women judges about their careers. In today’s guest column, she shares the types of advocacy her guests find effective and helpful in their decision-making. The article quotes PJ Edmon, Justice Grover, Justice Ashmann-Gerst, retired Justice Grignon, and LASC Judge Williams Court. The 7 tips are: 

• Know your audience.
• Tell a story.
• Make the judge want to rule in your client’s favor. And then provide the legal analysis that will allow the judge to do so.
• Treat the table of contents as the first opportunity to tell your story.
• Be accurate.
• Clarity and brevity are key.
• Ask for what you want. And be clear about what that is.

Pro per gets away with a warning...

For the latest in incivility by a pro per appellant against the Court of Appeal, don't miss this unpub one from 2/6 today. The opinion generously quotes from the appellant's "unremitting, unwarranted stream of invective" in numerous motions and at oral argument.

• We could hold appellant in contempt and impose punitive sanctions for her unfounded attack on the integrity of this court. We decline to do so in this case, but warn her that she cannot expect such forbearance from us in the future.
• Despite appellant’s casting of aspersions upon the integrity of this court, we have made a concerted effort to treat her respectfully and fairly.  Although we have ample cause to hold her in contempt and impose punitive sanctions, we decline to do so this time.  But if there is a next time, we may not be so generous.

The Fall/Winter issue of the CSCHS Review is out, and it has many items of appellate note, including:

• Serranus Clinton Hastings: A Counterpoint on Culpability
• The California Academy of Appellate Lawyers: A Half Century of Accomplishments
• An Appreciation: Justice John A. Arguelles
• An Appreciation: Justice Norman L. Epstein
• Book Review: Stephen Field, Reconsidered

DJ profiles PJ Hill

 

Today's DJ profile is Justice Brad R. Hill of Fresno helps set tone for California's Court of Appeal System -- 5th District presiding justice is regularly tapped for leadership roles.

Justice Brad R. Hill has handled significant responsibilities since he was a young man. He was a law firm partner at 33, a judge at 36, and a superior court presiding judge before he turned 50. In 2010, Gov. Arnold Schwarzenegger named him presiding justice of the 5th District Court of Appeal.

In August, California Chief Justice Patricia Guerrero selected Hill to chair the Executive and Planning Committee of the Judicial Council. The chair helps the chief lead Judicial Council meetings and shape the long-term plan for the judicial branch.

New Justices!

Governor Gavin Newsom today announced his nomination of two Court of Appeal Justices: Judge Monique Langhorne Wilson as an Associate Justice of the First District Court of Appeal, Division One and Aimee Feinberg as an Associate Justice of the Third District Court of Appeal.

First District Court of Appeal



Judge Monique Langhorne Wilson, of Solano County, has been nominated to serve as an Associate Justice of the First District Court of Appeal, Division One. She has served as a Judge at the Napa County Superior Court since 2018. Judge Langhorne Wilson served as a Commissioner at the Napa County Superior Court from 2006 to 2018. She served as a Deputy District Attorney at the Napa County District Attorney’s Office from 2000 to 2006 and was a Family Support Officer at the Napa County Department of Child Support Services from 1999 to 2000. Judge Langhorne Wilson earned a Juris Doctor degree from the University of California, Berkeley School of Law. She fills the vacancy created by the appointment of Justice Gabriel P. Sanchez to the federal bench. This position requires confirmation by the Commission on Judicial Appointments, which consists of Chief Justice Patricia Guerrero, Attorney General Rob Bonta and Senior Presiding Justice Jim Humes. Judge Langhorne Wilson is a Democrat.

Third District Court of Appeal

 

Aimee Feinberg, of Yolo County, has been nominated to serve as an Associate Justice of the Third District Court of Appeal. Feinberg has been Of Counsel at Munger, Tolles & Olson LLP since 2023. She served as a Deputy Solicitor General at the California Department of Justice from 2014 to 2023. She was a Lecturer and Director of the California Supreme Court Clinic at the University of California, Davis School of Law from 2012 to 2014 and an Associate at Munger, Tolles & Olson LLP from 2005 to 2011. She served as a Law Clerk for the Honorable Stephen G. Breyer at the U.S. Supreme Court from 2004 to 2005 and for the Honorable David S. Tatel at the U.S. Court of Appeals for the D.C. Circuit from 2003 to 2004. Feinberg was an Associate at Covington & Burling from 2002 to 2003. She earned a Juris Doctor degree from Stanford Law School. Feinberg fills the vacancy created by the retirement of Justice Andrea Hoch. This position requires confirmation by the Commission on Judicial Appointments, which consists of Chief Justice Patricia Guerrero, Attorney General Rob Bonta and Senior Presiding Justice Laurie M. Earl. Feinberg is a Democrat.

The compensation for each of these positions is $265,944.

Also of note on Law360 Breaking Down High Court's New Code Of Conduct and Judge Newman Decries Unenforceable Fed. Circ. Promises

And congrats to certified appellate specialist Stephen K. Dunkle appointed to Santa Barbara County Superior Court.

6th DCA seeks summer externs & more

The Court of Appeal, Sixth Appellate District welcomes law student applications for the 2024 Summer Judicial Externship Program. Click here for more info.

Jackson Urges High Court To Dispose Of Automatic Vacaturs -- Supreme Court Justice Ketanji Brown Jackson on Tuesday again criticized a procedural mechanism that obligates the justices to vacate lower court opinions and offered up an alternative analysis they could use to decide whether to vacate rulings by the lower courts.

Justice Jackson made her suggestion in a concurring opinion accompanying the court's first decision of the term, in which the justices unanimously dismissed as moot an appeal by Acheson Hotels LLC challenging a First Circuit panel ruling that so-called Americans with Disabilities Act "testers" like plaintiff Deborah Laufer have standing to bring discrimination claims against a business for failing to provide accessibility information, even if they never plan to visit the business. The justices also vacated the First Circuit's opinion.

Jones Day Picks Up 8 More US Supreme Court Clerks -- The firm recruited another group of former clerks who worked with Republican-nominated judges on the U.S. Supreme Court.

SCOC returns to LA

California Supreme Court Hosts Oral Argument in Los Angeles -- The California Supreme Court marked its return to hearing oral argument in Los Angeles, a tradition put on hold for nearly four years during the COVID-19 pandemic.

The California Supreme Court on Tuesday marked its return to hearing oral argument in Los Angeles, a tradition put on hold for nearly four years during the COVID-19 pandemic. The court’s tradition of hearing oral argument in Los Angeles—as one of three locations along with Sacramento and San Francisco—dates to 1878.

Chief Justice Patricia Guerrero welcomed attendees, noting the court has not held an oral argument session in Los Angeles since “before the pandemic” in December 2019—but were returning in 2023 to a newly renovated courtroom. The court heard five cases during the session, held in its courtroom in the Ronald Reagan State Office Building in downtown Los Angeles.

During the COVID-19 pandemic, the court made technological upgrades to its courtrooms in San Francisco, Sacramento, and Los Angeles to better facilitate livestreaming and remote oral arguments. Though the court resumed hearing oral argument in person, counsel still have the option to appear either in person or remotely via video. One attorney appeared remotely during Tuesday’s session.

In 2024, the court will hold oral argument sessions in Los Angeles, Sacramento, and San Francisco, including a special outreach session for students.

SO'C remembrance

Today's DJ has Justice Hoffstadt's What I Learned From SO'C about what he learned from clerking for Sandra Day O'Connor:

As a justice, she gave weight to the human impact of the positions she took. The U.S. Supreme Court may be the highest of all the ivory towers, but Justice O’Connor was always concerned about how the Court’s rulings were likely to play out in the real world and how they were likely to affect the everyday lives of Americans. Some of her critics decried her for taking a case-by-case approach that turned on balancing multitudes of factors rather than taking a more bright-line and ideologically driven approach, but her preferred philosophy injected flexibility into the Court’s holdings that empowered the lower courts to account for how their decisions in individual cases would affect the lives of the litigants before them.

Bloomberg Law has O’Connor Taught Clerks to Think Broadly About the Law, Themselves

Today's DJ also has the monthly column Exceptionally Appealing: Ninth Circuit 2023 Appellate Roundup, discussing half a dozen 9th Circuit rulings from the past year on appellate practice topics.

See Pew's Most of Biden’s appointed judges to date are women, racial or ethnic minorities – a first for any president

BHBA presents CALG's Sharon Baumgold presenting Writs of Mandate: What Every Litigator Should Know, on Dec. 14, 5:30-6:30 p.m. 

Appellate obits & more...

Friday's DJ had two obits of note: Sandra Day O'Connor, 1930-2023 ["In California, where O’Connor began her legal career, the profession and the judiciary is even more diverse than it is nationally. The chief justice is a woman and three of the associate justices are women, making up the majority of the seven-member state Supreme Court. Women are the administrative presiding justice in three of California’s six court of appeal districts and the presiding judges of 20 of California’s 58 counties."] and Gideon Kanner 1930-2023 [quoting this blog's obit post]. And see here.

Today's DJ has PJ Gilbert's A Flicker of Hope? offering thoughtful musings on A.I.

Today's DJ also has Myron Moskovitz's column On Criticizing Judges, pointing to Poe v. Pioneer Medical Group (2023) 2023 WL 7204940, as an example of what not to do. As for what to do, focus on "what trial judges do, not who they are." "[T]he appellate Justices usually already know the reputation of each trial court judge in their district" and he writes:

"there’s rarely any call to use any[ adjective] stronger than “mistaken”. That’s just as likely to get me my reversal as “outrageous” or “ridiculous” – so long as I show the trial court’s error with the record and the law."

U.S Courts has Director’s Awards Recognize 19 Employees for Leadership, Service, noting winners in the 5th and 6th Circuits.

SCOTUS & Baseball -- and more!

Duke Law School's 107:2 Judicature (2023) has some articles of appellate note.

First, there's a baseball-SCOTUS article here by Jennifer Lowe: Not Just Umpires--Justices are Fans, Too.

Second, Judge Rawlinson has a book review (of Lisa Kloppenberg's "The Best Beloved Thing is Justice: The Life of Dorothy Wright Nelson"): Judge Dorothy Wright Nelson's Prescient, Bold Vision of Justice.

Third, En Banc or In Bank? Take a Seat...

Finally, SFSC Judge Curtis Karnow has Neutrality Can be Maddening to the Public. And to Judges, Too.

New FRAP & Circuit rules

December 1 is the day new federal rules take effect. FRAP 2, 4, 26, and 45 have been amended. FRAP 2 now has more flexibility and detail about how to handle emergencies (e.g., pandemics), allowing broader authority to suspend rules. FRAP 4 is likewise amended to address timing when emergency situations are declared. FRAP 26 and 45 are amended to add Juneteenth as a legal holiday.  

The Ninth Circuit has posted a new fee schedule here. New 9th Circuit Local Rules are here, including Circuit Rule 32-1(f) about whether and how to count (for word-count purposes) visual images used for demonstrative purposes in briefs.

See also Bloomberg Law's Updated Evidence Rule Warns Judges Against Junk Science re changes to FRE 702.

And do not miss the ABA Journal's Ruling in double-spacing kerfuffle, federal judge observes lawyers don't need 'more words on a page' and ATL's Heated Litigation Fight Over 'Double-Spacing' Ends In Judge Telling Everyone To Shut Up

 Law.com has Objectors in $725M Facebook Settlement Combat 'Absurd' $8,500 Appeal Bonds -- Objector lawyers who have challenged numerous Big Tech privacy settlements are fighting back against paying $8,500 bonds before appealing approval of a $725 million class action deal with Facebook’s Meta Platforms Inc. "Plaintiffs lawyers in the Facebook settlement have asked for $8,500, citing Davila’s order, but the objector lawyers allege the bond, if required, shouldn’t exceed a few hundred dollars."

RIP Sandra Day O'Connor (1930-2023)

Justice Sandra Day O'Connor, the first female SCOTUS justice, died today at age 93. The Court's press release is here. NLJ obit here:

Appointed to the Supreme Court by President Ronald Reagan in 1981, O’Connor held a key position of influence as one of the more moderate conservative justices during more than 24 years on the nation’s top bench, and often wielded a swing vote that narrowed the majority’s positions in areas of criminal and constitutional law. O’Connor wrote 645 opinions during her time on the court.