TrueFiling comes to the Second District Court of Appeal

Perhaps the title of this post should be the other way around: The Second District Court of Appeal comes to TrueFiling. Although the The Second District has had e-filing for some document sin place for several years, it appears to be the last appellate court in the state to embrace e-filing of everything via TrueFiling.

With the upgrade come some new formatting requirements that were previously only suggestions. Electronically filed documents must now include electronic bookmarks to “to each heading, subheading and component of the document, such as the table of contents, table of authorities, petition, verification, points and authorities, declaration, certificate of word count, certificate of interested entities or persons, and proof of service.”

The full rules area available in the Electronic Formatting Requirements and Guidelines of the Second District (the “rules”). As the name suggests, some things are mandatory, others are not. The rules include a “style manual” of sorts with recommendations for fonts, margins, line spacing, and text alignment, among other things. Curiously, some of these guidelines advise noncompliance with the rules of court. For example, rule 8.204(b)(5) states that “lines of text must be unnumbered and at least one-and-a-half-spaced,” but paragraph 8 of the guidelines suggests line spacing of 1.2 lines. My guess is that 99.9% of people aren’t going to care about these differences, but they will drive the other 0.1% nuts.

Use of TrueFiling becomes mandatory in the second district on October 30, 2017.

Second District Court of Appeal to implement TrueFiling e-filing system in late 2016

Screen Shot 2015-08-20 at 11.46.15 AMAccording to a notice I received today from the California Appellate Project:

The clerk of the 2nd District Court of Appeal has asked us to inform the panel that True Filing will be available in this district beginning in November.  For two months, November and December, True Filing will coexist with the present eFiling system presently being used in the district.  The choice of which to use will be yours.  Then, in January, the present eFiling system will disappear, and everyone will be required to use True Filing.  Those of you already working in other districts with True Filing will definitely have a leg up on the rest of us.

That last sentence is certainly true. TrueFiling takes some getting used to.

The Second District’s present e-filing system has the advantage of being free, but it is also not a pure e-filing system. Hard copies of briefs still had to be submitted to the court. Also, original proceedings (writ petitions) cannot be initiated electronically under the current system, but I have initiated original proceedings via True-Filing in other districts.

You can’t stop progress. But I still hope the justices print out my briefs before reading them.

Update (09/25/2017): From the “better late than never” department. TrueFiling becomes mandatory in the Second District Court of Appeal on October 30, 2017. I shouldn’t joke. The Second District has always generously granted me extensions, it’s about time the court got one.

Insight into the Supreme Court’s decisions on whether to hear cases

The Los Angeles Times has a story today on Justice Goodwin Liu, or, more particularly, on how his two recent lengthy dissents from orders denying review give some insight into what the court’s reasoning was. Usually, an order denying review is quite terse and gives no clue as to why the court reached its decision not to grant review. Justice Liu’s recent dissents, according to the article, shed some insight on the decision-making in those cases, but I’m afraid the article doesn’t do very well at explaining how. The passages it cites from the dissents demonstrate why Justice Liu was in favor of granting review by showing what he was thinking, but not why the justices who voted against review did so. The article has links to the dissents, so it is easy enough to follow up if you are curious.

It is important to keep up with the law while your appeal is pending

Goed Zoekveld

Keep an eye on developments in the law while your appeal is pending.
Image courtesy of Bart van de Biezen via Compfight

Most lawyers I know — at both the trial level and the appellate level — keep up with the daily “advance sheets,” which provide a brief summary of Supreme Court and Court of Appeal decisions published the day before. It is an important habit, because you never know when a great decision for your pending case is going to come up.

For a great example, see Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), where the plaintiff/appellant gained the benefit of a Supreme Court decision that came out while his appeal was pending. The Supreme Court case, Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, required reversal of the judgment that would have otherwise deprived Miranda of the right to arbitrate representative claims under the Private Attorneys General Act (Lab. Code, §2698 et seq.). Iskanian was so directly on point that it required only a paragraph of substantive discussion in the Court of Appeal opinion. Of course, the case might have been decided the same way without the Supreme Court’s Iskanian decision, or the Court of Appeal may have asked for supplemental briefing on the effect of Iskanian had neither party addressed it in the briefing, but the new case sure made it easier for appellant to brief the appeal.

The obvious application of the Iskanian holding probably explains why so much of the Court of Appeal opinion in Miranda was spent on the subject of appealability. Faced with a controlling Supreme Court opinion, the respondent probably thought its best hope for keeping the judgment in place would be to get the appeal dismissed for lack of appealability, and spent the bulk of its brief on that issue. However, the respondent failed to convince the Court of Appeal that the judgment was not appealable, leading to reversal based on Iskanian.

Are records on appeal from the Los Angeles Superior Court about to get better?

LASCThe headline is not a dig at anyone at the Los Angeles Superior Court (LASC). It refers to the impact of the statewide court budget crunch, which led many courts to stop providing court reporters as a matter of course. Faced with having to engage court reporters on their own, some litigants were foregoing the expense, at risk of having records inadequate to prosecute their appeals.

As a result, parties are appealing decisions without the reporter’s transcript that they would have been able to order under the old system. That can spell trouble for an appeal.

Last Friday, the LASC announced that it is hiring court reporters. Actually, I can’t tell from the announcement whether they are looking for multiple reporters or just trying to fill a single vacant position. Here’s hoping that it’s the former, and that this is a sign of things to come.

UPDATE (4/13/16): According to the 2015 edition of the California Litigation Review*, which hit my mailbox this week. published by the Litigation Section of the California State Bar, the court is “hiring court reporters again,” suggesting the court is restaffing in preparation for providing reporters again. Let’s hope.

*Published by the Litigation Section of the California State Bar.


Justice Kennard retiring April 5

Justice Joyce Kennard has announced her retirement from the California Supreme Court effective April 5, on which she will mark the 25th anniversary of her appointment. The article at the San Francisco Chronicle gives people a glimpse into  Justice Kennard’s drive and perseverence:

Kennard was born in the East Indies and, as a child, was held along with her mother in a refugee camp in Java during World War II. They moved to the Netherlands after the war, and as a teenager Kennard had a leg amputated above the knee after developing a tumor.

She came to the United States in 1961, found work as a secretary, and put herself through college and law school. After a stint in the state attorney general’s office, she was named to a Municipal Court in Los Angeles by Gov. George Deukmejian in 1986. Three years later, he named her to the state’s high court.

Her official bio is here.

Given that Justice Kennard cited her desire to get back to “long-neglected friends” after years of seven-day workweeks, and that her retirement letter ended on a poetic note, the fond farewell I learned at the Naval Academy seems appropriate, regardless of whether she is  sailor: May you have fair winds and following seas, Justice Kennard.

A Chief’s-eye view of the California Supreme Court

Today marks the release of an interview-style memoir from former California Supreme Court Chief Justice Ronald George, Chief: The Quest for Justice in California. A front-page article in today’s Los Angeles Times gives you a glimpse into a few themes in the 822-page book. One: a court funding crisis — though not of the same magnitude as the one faced today — was never far off at any given time:

When Ronald M. George served as chief justice of California, he pleaded annually with legislators for money to run the courts, warning the loss of funds would compromise justice.

But he said he learned that some lawmakers took positions on the budget for purely personal reasons, obsessively discussing their divorces or traffic tickets and punishing the judiciary for rulings they did not like.

“I remember dealing with one state senator who found it impossible … not to bring up his own divorce proceedings and how he thought he’d gotten a raw deal at the hands of his wife and her attorneys and didn’t feel the court system dealt with him fairly,” George said, not naming the elected official.

This book should have been released on Halloween, because that is really, really scary.

UPDATE (11/7/13): Southern California Appellate News has information on a book signing scheduled at UC Berkeley next week , and The Recorder provides another summary of the book.

Four added to pool of prospective First District Justices

The Recorder reports on three judges Governor Brown has asked to have evaluated for vacancies on the First District Court of Appeal.

Brown has asked the State Bar’s Commission on Judicial Nominees Evaluation to vet San Francisco Superior Court Judge Marla Miller, Contra Costa County Superior Court Judge Diana Becton and ACLU staff attorney Linda Lye for openings on the San Francisco-based appellate court.

Therese Stewart of the San Francisco city attorney’s office is also being evaluated by the commission.

Of course, everything will remain up in the air for a while.
Submission of a name to the commission usually indicates serious interest on the governor’s part, though there are now only two vacancies on the First District, and other prominent judges and attorneys are said to have expressed interest.
See the article for some background on these candidates.

Some Highlights from the 2013 Court Statistics Report

Would you like to know how busy Court of Appeal justices are? Maybe you’re curious instead about the odds of getting that writ petition you’re considering heard on the merits. Those curious about court statistics have a friend in the Judicial Council of California, which publishes annual statistical reports and has release its 2013 Court Statistics Report: Statewide Caseload Trends 2002–2003 through 2011–2012 (available as a PDF and in an MP3 audio format). The report covers data through the close of fiscal year 2012. (All references to years are to fiscal years.)

I finally got a chance to look at it over the weekend, and here are a few of the things I found interesting from my first pass through the report:

Number of contested appeals per authorized justice (statewide): 209. That is the lowest number of contested appeals since 2005, but there has not been a lot of variation over the years, with that number peaking at 225 in 2008. Keep in mind that is a statewide number. Your local justices may be much busier or have much less on their plates. The “per justice” calculations are based on 21,894 contested matter, of which well over one third are original (writ) proceedings. It will be interesting to see how that number changes for 2013, with the bottleneck created in the trail courts because so many departments have closed up shop due to budget cuts.

Juvenile and criminal cases continue to make up the vast bulk of all appeals. Of the 13,498 appeal filings in 2012, almost two-thirds of appeals came from criminal cases (more than 40% of all appeals) and juvenile dependency cases (just over 20% of all appeals).

Civil appeal reversal rates continue to hover below 20%. In 2012, 18% of civil appeals obtained a reversal of the trial court judgment. Potential appellants need to keep in mind that the standard of review applicable to a case, and the strength of any particular case, can change those odds significantly. Another 9% of civil appeals that were affirmed with some modification, but some of those modifications might be pretty meaningless to appellants.

Your civil appeal might not take as long as you think. Weary litigants can be reluctant to appeal because, in addition to the abstract 1-in-5 odds of prevailing, they see the appeal as more time spent in court and they just “want the damn thing to be over.” They find living with the judgment preferable to prolonging the case, and sometime will file an appeal only in the hope that it will generate some leverage for settling on terms more favorable than those imposed by the judgment. There are a few things wrong with that mindset, which deserve their own post, but when thinking of the appeal as “additional litigation,” you (the appellant)  should keep in mind that 90% of appeals statewide result in a written opinion within 15 months of the date the notice of appeal is filed. The Third District (in Sacramento) seems to be the slowpoke, resolving 90% of their appeals in around 18 months, while congratulations seem to be in order for the First District (if you value prompt resolution), which was the only multi-division district to have every one of its divisions beat the statewide average, and Division 5 of which had the lowest time to opinion in the state: about twelve and one-half months (382 days).

Riverside Appeals Court goes 3-for-3 with the Supremes

That’s one of the interesting things you can learn from the chart that accompanies a front page article in yesterday’s Daily Journal. District 4, Division 2, sitting in Riverside, is one of only two divisions to have a perfect record on the review of its decisions by the California Supreme Court in the last twelve months. The other is First District, Division 1, which had only one case reviewed. Three divisions had no decisions reviewed by the Supreme Court in that period.

While Division 2 in Riverside was batting a thousand, their Fourth District colleagues in Division 3 (Santa Ana), batted .ooo, getting reversed on all five cases reviewed from that division.

The main thrust of the story, covered by Ben Shatz at Southern California Appellate News, is how Justice Rushing of District 6 is the most-reversed Justice in the state for the last twelve months. Five of the decisions he wrote were reversed, as was the decision in a sixth case in which he sat on the panel.

I loved what Justice Rushing had to say about one of the reversed cases: “I would have decided [it] the same way even if someone had told me the Supreme Court was going to come down and beat me up about it.”

Another good quote from the article came from an appellate lawyer, Dennis Maio, who served for 20 years as a staff attorney at the Supreme Court: “If you are someone who writes very provocatively and stakes out a position, you are going to be noticed more, and because you are noticed more you are more likely than not going to draw criticism.”

For a more amusing take on how getting noticed is not always a good thing, here’s Steve Martin, in a scene from 1979’s The Jerk:

Judicial Council meeting this week to discuss impact of court closures

A Friday afternoon press release (PDF) from the Administrative Office of the Courts announced that this Wednesday’s meeting of the Judicial Council will include a review of  the impact of the court closure policy instituted last September. From the agenda:

Based on survey responses from the Supreme Court, Courts of Appeal, 54 superior courts, and 275 justice system partners, the Administrative Office of the Courts (AOC) recommends continuing the one-day-per-month judicial branch closures through June 2010, as directed at the July 29, 2009, Judicial Council meeting. The closures provide a viable method in the short term to absorb the significant budget reductions imposed on the branch, although they are far from a perfect tool and have unquestionably affected court operations and the smooth and effective delivery of justice. The AOC further recommends that the council reaffirm its commitment to keep courts open and accessible to the public and to advocate for sufficient resources to avoid the need for court closures in fiscal year 2010–2011 and direct the Administrative Director of the Courts, in consultation with branch leaders to develop recommendations and guidelines for limited closures for 2010– 2011 should sufficient resources not be provided.

The agenda references this 28-page report (PDF) from the AOC. The meeting will be audiocast live at this link.

Supreme Court announces court closure schedule

The California Supreme Court has announced the statewide court closure schedule made necessary, according to the announcement, by “California’s current fiscal crisis.” “The Supreme Court of California, the Courts of Appeal, and all superior courts will be closed on the third Wednesday of each month, starting September 16, 2009”.

Those of you who prefer not to risk miscounting your Wednesdays can find a list of closure dates through June 2010 on the Supreme Court’s home page. In case that list is no longer there when you look, Kimberly Kralowek has posted the same chart at The UCL Practitioner.

2008 California Court Statistics Report

Now available for PDF Download: 2008 Court Statistics Report: Statewide Caseload Trends, 1997-1998 through 2006-2007.  Always interesting to peruse.

The first thing to jump out at me from this year’s report (in my thus far rather hasty review): the median time statewide for civil appeals (from time of filing the notice of appeal to the time of disposition) was 432 days in 2006-2007.  That’s roughly 14 months.  And 90% of all civil appeals are disposed of within 680 days, or about 22 months.  These are statewide numbers.  Some districts are better than others.

I may be wrong, but I think there is a general impression among many clients (and perhaps some trial lawyers) that appeals usually take much, much longer.  Clients dissuaded from pursuing or fighting an appeal by what they think will be “years” of more legal wrangling should think twice.

Hat tip re the report: Ben Shatz, who clues you in to some other statistical tidbits.

The Influence of the California Supreme Court

There are apparently a couple articles out there ranking California’s courts, and its Supreme Court, tops in the nation . . . whatever that means. I say “apparently” because I have to take others’ words for it. I’m way too busy to read the articles themselves.

For those of you with time, the more recent of the two is here (hat tip: Civil Procedure Prof Blog). Texas Appellate Law Blog has a PDF download of the earlier article.

One nugget I gleaned in my quick skim of the more recent article: while the first study ranked California’s Supreme Court #1 in influence on other states, a survey by the U. S. Chamber of Commerce (PDF download) rated the California court system as a whole as only 44th best (or 7th worst, depending on how you look at it) in the nation. Go figure.

Televised Coverage and More Regarding Supreme Court Marriage Cases

According to this link at the California Courts website, oral argument in six cases concerning the constitutionality of California’s marriage statutes will be televised on the California Channel shortly after they are heard on on March 4.  The court has also made many of the briefs available online, which you can access from the same link.

UPDATE (2/27/08):  An alert commenter points out that the television broadcast will be live instead of delayed.

The Liberty of the Court of Appeal

Several months ago, I posted about a local court of appeal decision, Cuccia v. Superior Court, case no. B197278 (July 16, 2007), that chided the trial judge for not following the rules of stare decisis:

The doctrine of stare decisis requires a trial court to follow an unambiguous published holding of the Court of Appeal, even if the trial court believes that the appellate opinion was erroneously decided. This, we had assumed, was fairly obvious to every trial court judge; that is, until now.

The court went on to state that a trial court that disagrees with the precedent “should make a record articulating why it believes the binding opinion is erroneous and should be revisited by the appellate court which is free to either disagree with or overrule the opinion.” (Emphasis added)

Another reminder of the liberty the Court of Appeal has in overturning decisions — or in not following the decision of another district — arrives in the form of In re Pope, case no. C051564 (3d Dist. Jan. 8, 2008), in which the Third District of the Court of Appeal explicitly rejects the holding of a recent case in the First District (emphasis added):

The superior court’s ruling was based on a decision of the Court of Appeal, First Appellate District, Division Two. (In re Phelon (2005) 132 Cal.App.4th 1214 (Phelon).) The superior court was required to follow Phelon. We are not so restrained. In our view, Phelon was wrongly decided.

A Court of Appeal typically will not depart from precedent decided in other districts.  But there is no procedural rule that prevents them from doing so in the appropriate case.  Don’t give up on a case where there is bad Court of Appeal precedent when you can make a good argument that the court should depart from it.

Compare and Contrast: Virginia and California

Waaaaaayy outside our usual jurisdiction, but California appellate lawyers may be interested in reading this post by “S. COTUS” at Appellate Law & Practice, which in turn links to this post at the SW Virginia Law Blog about the en banc Virginia Court of Appeals opinion in Moore v. Commonwealth.  If I read these posts correctly, and they accurately portray the case, the posts demonstrate a wildly different approach to appellate jurisdiction in Virginia than in California, for which we should probably all (well, at least those of us representing appellants, and all appellants in pro per) breathe a sigh of relief.

The court dismisses the appeal because the “petition for appeal” stated that the issue on appeal was whether a traffic officer had “probable cause” to stop the defendant, and the appellant’s brief argued the same point, when the correct legal standard for the stop is the less rigorous “reasonable and articulable suspicion of criminal activity.”  In fact, not only did the appellant brief the wrong standard, but so did the commonwealth, and the court only raised the issue sua sponte after argument!

I think most panels in any California Court of Appeal faced with this situation – the wrong standard argued in the appellate briefs —  would note the error and order supplemental briefing from the parties on the correct legal standard.  Consider how generous the Courts of Appeal in California are, for example, in construing a notice of appeal from a non-appealable order as a notice from an appealable order or from the ensuing judgment (which I blogged about here) or even construing the appeal as a petition for a writ of mandate (which I blogged about here).

Obviously, I’m not familiar with Virginia procedure, and at first I was almost as cynical about the decision as S. COTUS – it looked like the court had converted a rule of procedure into a jurisdictional requirement. 

But there appears to be more than meets the eye here.  The “petition for review” referenced by the court is required by Virginia Supreme Court Rule 5:12 (also referenced by the court) and appears to function more as a writ petition than a notice of appeal, as it must be filed only where an appeal “does not lie as a matter of right.”  Not only must it contain “the questions presented,” but Rule 5:12 also states that “Only questions presented in the petition for appeal will be noticed by the Court of Appeals.”

Even so, having apparently agreed to hear the appeal, the Virginia court’s action in dismissing the appeal sua sponte and after oral argument seems especially strict.  Of course, a genuine lack of jurisdiction may be raised at any time.  But because the court referenced not just the appellant’s incorrect standard in the petition for appeal but also in the briefing, it seems unlikely that the defect in the petition for review has been considered jurisdictional before, else the court could have rested on that defect without referencing the subsequent briefing. 

Whether based on jurisdiction or a mere question of procedure, this is certainly a more harsh result than I would expect if the parties briefed the wrong standard in a California appeal.

Easing Back into Things with Some Reminders from the Judicial Council

OK, I’m going to ease back into posting here with some easy ones.

The California Courts website now has up-to-date versions (i.e., the versions effective as of January 1, 2008) of the following posted:

Judicial Council Forms. This is a nice list, as it is only of the forms that have changes or been added, and the page includes a link to download all of the changed and new forms in a single zip file with one click. This list includes two forms for appeals, APP-003 — Appellant’s Notice Designating Record on Appeal (Unlimited Civil Case) and APP-008 — Certificate of Interested Entities or Persons. The latter is a brand new form valid statewide, a nice change from the district-specific forms in use up to this time. There are LOTS of changes to probate, family, and juvenile law forms. If you want forms already formatted to allow you to fill in the blanks, however, you’ll have to navigate to the form you want through the home page for forms.

California Rules of Court. This link is to the updated rules in toto, not just a list of changes.

Superior Court Local Rules. You’ll want to bookmark this page, which provides links to the local rules of every superior court with local rules available on-line (which, even in 2008, still does not include every county!), listed alphabetically by county.

The Judicial Council is also seeking comment, due by January 25, 2008, on a wide variety of topics, including proposed rules and legislation regarding discovery of electronic information (PDF download).

UPDATE (1/4/08):   The Appellate Practitioner notes one of the rules changes is that the Supreme Court copies of briefs filed in the Court of Appeal may now be served by e-mail.  That’ll save a little postage!

The California Appellate Court Legacy Project

From the California Courts website:

In 2006, the California Appellate Court Legacy Project was undertaken to interview all retired justices in the state, as well as active justices who may be nearing retirement. Overseen by the Appellate Court Legacy Project Committee (chaired by Associate Justice Judith L. Haller of the Fourth Appellate District, Division One), interviews are videotaped or audiotaped and conducted by interviewers selected from within the appellate branch. Ultimately the tapes will be made available to judicial colleagues, historians, scholars, law students, and members of the public. The resulting archive will be an historical record of both the personal experiences of individual justices and the evolution of the California appellate courts.

Sounds like a worthy project, but I can’t find out any more about it.  Anyone know when or where the records will be archived and/or what their availability will be?

I am mildly embarrassed to say I earned about this from a lawyer clear across the country: Mitch Rubinstein at Adjunct Law Prof Blog.

Death Penalty Appeals to Shift from Supreme Court to Court of Appeal?

Monday’s announcement that the Supreme Court is seeking a constitutional amendment to have death penalty appeals heard in the Courts of Appeal (press release here) has predictably triggered blog coverage.

Legal Pad calls the announcement a “bombshell,” poses several questions regarding the potential impact of such an amendment, and seeks answers from their readers.

Crime & Consequences questions whether the proposed summary affirmance procedure for the Supreme Court to affirm Court of Appeal dispositions is functionally any different from discretionary review. The first comment on the post questions the propriety of justices “publicly lobbying to modify their jurisdiction” because practitioners who appear before them will be hesitant to publicly oppose the change.**

And all the way from Texas, the StandDown Texas Project links to some California newspaper articles and coverage by the Associated Press.

A Group Passionate about Changes to Publication/Citation Rules

I had occasion to do some research recently into the fight for changes in the rules for publication and the California ban on citation of unpublished California opinions (Cal. Rules of Court, rule 8.1115) and ran across The Committee for the Rule of Law. According to its mission statement, it “seeks to revive full publication of all decisions of the United States Court of Appeals and the Court of Appeal of California in official reports and to eliminate all rules of court prohibiting the citation of approximately 90% of all decisions of our appellate courts to any court for any purpose.”

The name of the group and the passion with which it argues may strike you as somewhat “over the top,” but if you are interested in researching the arguments in favor of such reforms, its web site is a good place to start. You will find links to a lot of materials regarding the debate in California, including links to past legislative initiatives, dozens of articles in law reviews and the press, and historical developments in the adoption of Rule 32.1 of the Federal Rules of Appellate Procedure, which, effective January 1, 2007, authorizes citation to unpublished opinions rendered on or after that date.

UPDATE (11/20/07): I corrected the effective date for Rule 32.1 of the Federal Rules of Appellate Procedure.

Updates to Code of Judicial Ethics

This press release from the Judicial Council of California announces that the Supreme Court has approved several amendments to the Code of Judicial Ethics.  The press release recounts the areas affected before going into significant detail on the changes:

The issues covered by the amendments include handling cases with self-represented litigants, judicial disclosure, character reference letters, self-reporting by judges after being charged with or convicted of certain crimes, and misusing the prestige of the office by commissioners or referees.

The updated code is available as a downloadable PDF. Click here for the PDF.  The changes do not take effect until January 1, 2008.

Recent Judicial Council Action on Appellate Issues

The Judicial Council approved several recommendations of the Appellate Advisory Panel on the Council’s “consent agenda” for its October 26, 2007 meeting. Those recommendations include rule amendments/additions regarding costs and sanctions, designation of the record on appeal, clarification regarding extensions of time to appeal, overlength briefs in capital cases, and citation format. See the agenda (available as a PDF download here) for details.

If you’re interested in how the discussion items were actually debated at the meeting, the Council has made audio files of the meeting available, broken down by discussion item, here.

Judicial Performance Commission Records Not Discoverable

In Commission on Judicial Performance v. Superior Court, case no. B201251 (2d Dist. Oct. 29, 2007), the court of appeal holds that records of the Commission on Judicial Performance are not discoverable.  Its holding appears absolute, regardless of circumstances.

Felony defendant Davidson had his suppression motion denied by Judge Schwartz. Davidson filed a complaint against Judge Schwartz with the Commission, then was convicted after his case was transferred to another judge. In connection with his motion for a new trial, he filed a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) for records from the Commission concerning Judge Schwartz. The trial court ordered the records produced for in camera review.

The court of appeal grants the writ petition, issuing a writ compelling the trial court to vacate its order and to enter a new order denying Davidson’s Pitchess motion and granting the Commission’s motion to quash the subpoena. The Commission clearly qualifies for the official records privilege (Evid. Code § 1040); the court is unaware of any previous decision under Pitchess allowing such discovery; allowing discovery would “encourage mischief without a concomitant benefit to a criminal defendant”; the discovery would allow Davidson to indirectly question Judge Schwartz regarding the denial of his suppression motion, something he cannot do directly, and; other states with similar commissions have denied similar discovery.

All well and good, but the court also held that the trial court’s order for in camera review is invalid because the non-discoverability of the records would make such review a “wasted effort” and, “more to the point,” the judge has “no more right to see the Commission’s records than does any other member of the public.” It’s hard to square either rationale with Evidence Code section 915, subdivision (b):

When a court is ruling on a claim of privilege under Article 9 (commencing with Section 1040) of Chapter 4 (official information and identity of informer) . . . and is unable to do so without requiring disclosure of the information claimed to be privileged, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and any other persons as the person authorized to claim the privilege is willing to have present. If the judge determines that the information is privileged, neither the judge nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.

The only way to read the decision in light of Evidence Code section 915 is that it forecloses any discovery of Commission records ever.

Chief Justice George’s State of the Judiciary Address

Chief Justice George’s 12th annual address on the state of the judiciary, given at last week’s state bar conference, is available through the California Courts website. The transcript of his address is here. If you’d like to read a synopsis before (or instead of) reading the transcript, a PDF download of the post-address press release is available here.