Via NLJ’s L.A. Legal Pad comes news that, according to this press release from the Ninth Circuit, “disposition of judicial misconduct and disability complaints against federal judges sitting in the Ninth Circuit will be publicly available via the Internet” starting this month. Three orders are already up.
The main page includes links to the governing rules, a page listing the orders, and a downloadable complaint form.
The California Constitution (Article VI, sec. 19) prohibits a judge from drawing pay “while any cause before the judge remains pending and undetermined for 90 days after it has been submitted for decision.” A one-page “barrister’s tips” column by Ben Shatz at page 11 of this month’s Los Angeles Lawyer (in PDF format here) gives some nifty background on how this rule is enforced and how it can affect proceedings, including decisions to vacate submission and the scheduling of oral argument.
If you’re curious about how Justice Anthony Kennedy feels about reading briefs, check out this post at Legal Writing Prof Blog.
. . . apparently made its way into the press release announcing this Friday’s ceremonial “passing of the gavel,” when Judge Kozinski assumes chief judge duties. Details at How Appealing.
Via Carolyn Elefant at Law.com (whose blog post title, by the way, is quite clever) comes news that Justice Antonin Scalia has teamed up with legal writing guru Bryan Garner to author a book on legal writing. Ms. Elefant links to an article at Legal Times giving more details, and then asks some excellent (and amusing) questions:
Given that Scalia’s opinions (or in particular, his dissents), are often known for their nastiness or sarcasm, I’m particularly curious about the advice that he’ll provide to lawyers. Will Scalia counsel restraint and professionalism in legal writing, and if so, how will he reconcile that with his own opinions? Will Scalia offer “real life examples” of legal briefs or arguments that don’t simply don’t work, and if so, will readers be able to recognize the lawyers whose work is critiqued in the book?
Like I’ve said before, judges get away with things lawyers would never (or should never) dream of writing. One of the perks, I guess.
The Ninth Circuit has some unkind words for the district judge in Calderon v. IBEW Local 47, case no. 05-56937 (November 13, 2007). The district court dismissed the case for lack of prosecution because plaintiff’s counsel did not show up at a hearing on an order to show cause re dismissal for failure to serve one of the defendants.
Problem: the district court only gave notice of the OSC re dismissal via e-mail. Since plaintiff’s counsel did not consent to electronic notice (Fed. R. Civ. P. 5(b)(2)(D)) and did not regularly check his e-mail (and, given his lack of consent to electronic notice, had no obligation to do so), he missed the hearing. Putting aside the issue of whether a dismissal sanction is an abuse of discretion when it is imposed for missing a single hearing — an issue raised very briefly by the court — the notice was ineffective. Notwithstanding the attorney’s reasonable excuse for missing the hearing, the trial court denied plaintiff’s motion to vacate the dismissal, and did so without a hearing.
This easily meets the standard for “abuse of discretion,” says the Ninth. Indeed, the court takes the unusual step of apologizing to the parties. In the same sentence, it admonishes the district judge to “exercise more care and patience in the future.”
The district judge in question is Manuel Real of the Central District of California. Two prominent bloggers used the Calderon opinion to opine on Judge Real; both California Appellate Report and Decision of the Day do so in language that suggests they don’t plan to appear before Judge Real any time soon. More of Judge Real’s colorful history is memorialized in this Law.com judicial profile.
Anyway, on to the point reflected in the title of this post.
I wonder if Judge Real wasn’t made impatient because of the electronic notice. With electronic this and electronic that, we (as a society) expect everything to happen now.
By the time I was admitted to the bar in 1992, faxes were common. Car phones were widespread (though handheld cell phones were not), though somewhat pricey. My first firm (more than 1200 lawyers strong at the time) was still using Wang word processing in its LA office and e-mail had not yet been implemented firm-wide, if I recall correctly. Portable computers were heavy and hugely expensive. So things have accelerated greatly in the 15 short years since I became a lawyer.
I recall a partner at one of my BigLaw firms reminiscing in the mid-90’s about the “good old days” before fax machines. She thought the practice of law was much more civil before faxes. Fax machines, in her mind, were a leading cause of threatening letters sent by opposing counsel on Friday afternoons demanding detailed responses by Monday morning . . . or sooner. The same partner usually made a point of being totally incommunicado when on vacation.
My favorite anecdote regarding the impatience that technology breeds came from an an associate at Baker & McKenzie (where I spent my 2L summer in 1991), who once saw two attorneys in Los Angeles pacing back and forth impatiently outside the firm’s mailroom, cursing under their breath. When he asked why, they responded that they were faxing a contract and “it’s taking three minutes per page for this contract to get to Tokyo!”
While properly leveraging technology can make your life easier, I have some sympathy for (and sometimes count myself among) those who believe that, in many respects, technology just makes us work harder!
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.
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.
Ok, he’s a Seventh Circuit judge, but he’s famous and you all know him. But you may not know about his connection to Orangutans. What connection? Check out Decision of the Day.
Lawjobs.com profiles Judge Alex Kozinski as he prepares to take over as chief judge of the United States Court of Appeals for the Ninth Circuit. The reporter is from the National Law Journal, so this may be the article I linked in Monday’s post that was behind the NLJ’s subscription wall.
Thanks to Appealing in Nevada for the link.
In Suntharalinkam v. Keisler, case no. 04-70258 (9th Cir. Oct. 18, 2007), the Ninth dismisses a petition for rehearing en banc in an immigration case on the motion of the petitioner, whose counsel requested dismissal after being questioned at oral argument regarding the petitioner’s relocation to Canada and seeking of asylum there. Judge Kozinski will have none of it. In a dissent joined by three other judges, he argues against the ability of the petitioner to waste all the hard work of the court:
My colleagues dismiss the petition for review based on a nine-line motion, filed almost a month after this case was argued and submitted, which says nothing more than that petitioner has suddenly lost interest in the case. Granting the motion in such circumstances casts aside the time and effort of the 15-judge en banc panel, as well as the time and effort of the full court in considering whether to take the case en banc in the first place. It also threatens the integrity of our processes by inviting manipulation by parties unhappy with the questions at oral argument and fearful of the result they believe the court is going to reach. Worse still, by allowing counsel to dismiss the petition without requiring confirmation from the client that he wishes to abandon the petition for review, we put petitioner’s rights in jeopardy and leave the door open to future litigation as to whether counsel’s representations can bind the client.
I’ve always detected a sense among lawyers — sometimes explicitly stated, at least in private — that judges are always grateful for anything that clears up their dockets a little bit. Thus, we tend to assume a judicial bias in favor of any resolution short of final disposition on the merits — whether by voluntary dismissal of a case or appeal, settlement of a case, or even a stipulated reversal of a judgment on appeal. Not to be sycophantic here (besides, I have no reason to believe any judge has seen this blog), but I think this is somewhat cynical and does not give credit to the hard work of the judiciary.
UPDATE (10/19/07): Decision of the Day comments on the case with more detail and a focus on concerns that attorneys were gaming the system, as does California Appellate Report. Appellate Law & Practice has somewhat less respect for Judge Kozinski’s concerns.
Back in August, I covered the case of Fantasyland Video v. County of San Diego, case no. 05-56026 (9th Cir. Aug. 7, 2007), in which the Ninth asked the California Supreme Court to answer a certified question asking for the standard of review to apply to the constitutionality (under the California Constitution) of hours-of-operation restrictions on “adult entertainment establishments.”
The Ninth appeared to be telling the California Supreme Court that its jurisprudence on the issue is, shall we say, less than crystal clear. I wrote:
Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point. It says the most relevant case on the issue is impossible to figure out:
We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).
In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).” But they asked it nicely.
Then the Supremes took their shot in an order denying the Ninth’s request for an answer to the certified question, doing so in language suggesting that the Supremes are shocked — shocked — that the Ninth can’t figure it out from the existing cases:
[The request from the Ninth Circuit] is denied. California law is clear that content-neutral time, place, and manner regulations affecting protected speech are subject to an intermediate standard of scrutiny. Currently, California law does not suggest that restrictions upon the hours that adult businesses may operate require review under any test other than the intermediate scrutiny standard applicable to other content-neutral regulations.
I’m sure nobody was really “taking shots” here. That’s reading between the lines on my part, and cynical to boot.
Anyway, when the Ninth takes up the case again, it applies the “intermediate scrutiny” standard and upholds the hours-of-operation restrictions. The adult bookstore failed to “cast direct doubt” on the negative secondary effects of the adult business that the county used to justify the restrictions, including . . . increased noise and traffic? That’s the same objection people raised around here when they wanted to build a Lowe’s home improvement store!
National Law Journal’s L.A. Legal Pad links to the NLJ profile (behind subscription wall) of Judge Alex Kozinski, who takes over as Chief Judge of the United States Court of Appeals for the Ninth Circuit on December 1, the “first conservative in a decade to lead what is widely viewed as the nation’s most liberal federal appellate court.”
Professor Steven Calabresi responds to a New York Times editorial with a letter to the editor: The Roberts Court: The Rule of Law, Not Ideology.
Professor Lee Epstein at Northwestern University School of Law has posted a “Digital Archive of the Papers of Harry A. Blackmun.” Bloggers are most abuzz about the “cert pool memos” available as part of the archive. These memos provide insight into the reasons certiorari was granted or denied. For a good explanation of the cert pool memos, go to this page of the archive.
I got the link from Prawfsblawg. Who got it from GWU Law Professor Orin Kerr at The Volokh Conspiracy (who gives some especially good reasons to peruse them). Who got it from How Appealing. Who got it from . . . aw, who knows?
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.
Normally, as a lot of you have figured out by now, I’m a jurisdiction “junkie.” Jurisdiction fuels the disagreement in Ramadan v. Keisler, case no. 03-74351 (9th Cir. Sept. 28, 2007), and the jurisdictional question is interesting (it concerns the effects of the REAL ID act), but I haven’t had time to evaluate it yet. I hope to get to it.
But what caught my eye immediately was the dissent from this denial of a rehearing en banc. Eight judges join Judge O’Scannlain’s dissent, which starts:
In a feat of interpretive creativity, the Court in this case has transformed a discretionary determination of an Immigration Judge (“IJ”) into a question of law, thereby claiming jurisdiction over a swath of immigration cases hitherto beyond our purview.
And later:
The panel . . . proceeded to engage in interpretive gymnastics based upon a manufactured constitutional conflict.
Finally:
[the panel decision] creates a split between our circuit and all seven other circuits to consider the issue . . . But even more troubling than this split, the panel’s decision defies the statutory text, unnecessarily creates a constitutional conundrum, and places within our jurisdiction an array of immigration appeals that Congress does not permit us to review.
Professor Martin at California Appellate Report equitably distributes political motives in the case.
This Washington Post editorial argues that they should.
It first notes the justification for not disclosing reasons for recusals:
Justices have traditionally declined to elaborate on why they’ve stepped aside. One reason: a legitimate concern that revealing the cause for a recusal could empower future litigants to manufacture conflicts — such as hiring the spouse or child of a justice as a lawyer on the case — to force the removal of a justice who appears philosophically hostile to their arguments.
It then argues that the most recent recusals of Justice Roberts and Justice Breyer from a pending securities suit were likely due to their ownership of stock in the parent corporation of a party. Justice Roberts is since back on the case, likely because he sold his stock.
The editorial argues that since such financial stakes are eventually revealed in the justices’ annual financial disclosure statements, there is no harm in revealing stock ownership as a reason for recusal. But it never explains how that translates into an argument for disclosing the reasons for all recusals.
Its more convincing point is that the lawyers in the case can generally figure out the reason for the recusal anyway, so why keep the public in the dark?
Thanks to ABA Journal for the link.
This press release (PDF dowload) from the Judicial Council of California announces the release of its 2007 Annual Report (PDF Download).
[The report is] a summary of the judicial branch’s significant progress and challenges in improving court administration and equal access for all Californians.
***
The report highlights the branch’s efforts, in cooperation with the legislative and executive branches of state government, to improve service to the public and describes key trends in court caseloads and workloads.
I guess this is what you get when Supreme Court justices have to be re-elected to stay on the bench. A state Supreme Court justice with her own web page. Not her official biography on the court’s website or one of those dry “judicial profile” pages, mind you, but an independent web page promoting her seemingly “rock star” status.
I’m not saying its bad, just . . . different.
Has anyone seen anything like this from a California judge?
Thanks to ElectricLawyer, who was on top of this months ago.
Back in July, I linked to this Law.com post on this topic. Now SCOTUSblog has a very detailed post called Life Tenure, Term Limits, and Supreme Court Justices, in which they critique both the proposals for ending life tenure and a study relied on in support of doing so. The post includes citations to more detailed articles, as well as a few links to other discussions of the topic, including a recent New York Times article.
Don’t get too excited! The title of this post does not reflect changes to the Code of Civil Procedure.
Instead, the title summarizes two of Nine Ideas for Improving the Administration of Justice offered by Los Angeles attorney Edwin B. Stegman in his guest column in the September 2007 California Bar Journal. Specifically, Stegman suggests the following:
3. We desperately need a CCP §170.6-type peremptory challenge of incompetent and unreasonable appellate justices and divisions.
***
7. Before oral argument, attorneys should be permitted to review research attorneys’ notes and appellate draft opinions. There is no advantage to secrecy. In some courts, research attorneys make the decisions. Sometimes they make mistakes. Litigators should have an opportunity to discover the mistakes and point them out to the judge. Furthermore, oral arguments would be more focused, saving time.
Let’s take these one at a time in the extended entry. . . .
Professor Orin Kerr has a fun post at The Volokh Conspiracy about the use of the phrase “in my humble opinion” in judicial opinions. As with most posts at the Conspiracy, it generates quite a few comments — some serious, some not.
That was the difficult question facing the court in Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826. An excerpt from the opening paragraph of the opinion gives you an idea of the substantive issues facing the court (emphasis added):
We hold that Code of Civil Procedure section 2019.210 (formerly Code of Civil Procedure section 2019, subdivision (d)), which provides that discovery relating to a trade secret may not commence until the trade secret is identified with “reasonable particularity,” is not limited in its application to a cause of action under the Uniform Trade Secrets Act (UTSA) (Civ. Code, §§ 3426-3426.11), for misappropriation of the trade secret, but extends to any cause of action which relates to the trade secret. We also hold that where the plaintiff makes a showing that is reasonable, i.e. fair, proper, just, rational, the trade secret has been described with “reasonable particularity,” and is sufficient to permit discovery to commence.
The italicized holding is about as specific as the court can get, because the trade secret designation was under seal. In footnote 2 of the opinion, the court states:
To avoid disclosure of the parties’ confidential information we are, in this publicly available opinion, purposefully vague in our descriptions of the claimed trade secrets, the trade secret designations, the expert witness declarations and other related documents.
The court comes up with a pretty good articulation of the standard for “reasonable particularity,” considering it is foreclosed from demonstrating specifically how the standard applies to the trade secrets before it.
Prawfsblawg has a post about a just-published paper, from J. Mark Ramseyer of Harvard Law School, with an interesting thesis: better to have judges that are not brilliant and creative. Prawfsblawg notes of Ramsmeyer’s paper:
Taking [Jordan v.] Duff & Phelps, a contracts/corporate case from the 7th Circuit featuring a heated disagreement between Judges Posner and Easterbrook, as his text, Ramseyer writes that it “shows the risk inherent in appointing judges too creative and independent for the job.”
Prawfsblawg quotes from the paper:
[J]udging is not a job for unconstrained, innovative minds. Judges are government bureaucrats. Their job is to be honest, to unravel a set of facts, to decide what law applies, and not to think too hard about it all. . . .
This is quite the proposition!
See the Prawfsblawg post for a much more detailed discussion and links to the paper.
Legal Pad (a very good blog regarding legal issues in California) brings our attention to CourthouseForum.com, a 2-year old website with a directory of more than 27,000 judges and a discussion forum for commenting on them. Before you visit the site, check out Legal Pad’s post for a preview of some of the comments. Says Legal Pad about the commenters: “And boy are they candid.”
You may recall my post about an ethics complaint brought against a Florida lawyer who posted highly negative comments about a judge on a local internet forum.
This article at Law.com starts:
While a bill to split the nation’s largest federal appeals court lies dormant in Congress, that didn’t prevent grumbling at the opening of the 9th Circuit’s annual judicial conference over repeated efforts to divide the circuit.
There are several quotes from judges on their views — and fears — about a potential circuit split, including Chief Judge Schroeder’s reaction to the L.A. Times opinion piece arguing that the Ninth Circuit has a high reversal rate because its size makes it more likely that two “extremist” judges will be assigned to any given panel. My coverage of the L.A. Times piece, with links to coverage by other blogs, is here.
Technorati Tags: Ninth Circuit
If so, you might want to dust off your notes, in case Marshall University Political Science Professor Jean Edward Smith shows any prescience in his New York Times Op-Ed piece, “Stacking the Court,” which I ran across via the Wall Street Journal Law Blog.
Professor Smith gives a recitation of past changes in the authorized number of justices, with very brief detail on why some of them were made, and concludes:
If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.
But as a commenter on the WSJ post notes about the piece (lots of comments there, by the way),
It’s a nice history lesson, but every change to the number of justices happened over 150 years ago, and both in times of true national upheaval–the new nation and then the civil war. Even the depression wasn’t sufficient for FDR to change the number.
I wonder if Professor Smith’s piece is a serious enough argument for SCOTUSBlog to chime in with something substantive. Right now, they only link to it in a “Round-Up” post, but you might want to check it out for its links to several other articles regarding distress over the Court’s direction.
Lots of discussion over at The Volokh Conspiracy, too, including this one:
Among a great many other questions, I was hoping [Smith] would explain why a series of controversial 6-5 decisions would be clearer or more persuasive than a series of controversial 5-4 decisions. But nope. Oh well.
Court packing could even become popular. Once the initial resistance is overcome, there will be more packing with each change of power as citizens not only get used to it but demand it as a perk of winning the last election. A hundred years from now, maybe we’ll see an article in the New York Times begin with “A bitterly divided U.S. Supreme Court, in a 76-75 decision . . .”
OK, that’s a little cynical.
I suspect there’s going to be a lot more posted about this.
UPDATE (7/27/07): And there is.
University of Wisconsin Law Professor Ann Althouse has lots to say and tons of comments from readers.
Prawfsblog has a few comments.
The Blog of Legal Times notes a sense of “buyer’s remorse” in the senate over the confirmation of Justice Alito and Chief Justice Roberts. Senator Specter is said to be examining their testimony before the Senate to see if their conduct on the bench squares with what they testified to as their views on stare decisis. According to BLT:
The review is designed to improve the confirmation hearing process, in particular what may be done to goose nominees into giving more substantive answers to questions. In recent years the hearings have largely become a process of avoidance, with nominees seeking to say as little as possible without scuttling their prospects for confirmation. Specter and fellow Judiciary Committee member Dick Durbin (D-Ill.) are searching for ways to make the hearings more probative.
This post at Law.com previews a book and corresponding law review article arguing for 18-year fixed terms for U.S. Supreme Court justices. The premise seems to be that the founders could never have contemplated the long durations of most recent justices’ tenures, which arise from increases in life expectancy and retirement age. The post has lots of links and some tidbits of info about the service of Supreme Court justices.
Adjunct Law Prof Blog posted Monday about a CNN story (with link) regarding how justices on the U.S. Supreme Court take “potshots” at each other in their written opinions. Coincidentally, on the same day came Cuccia v. Superior Court, case no. B197278 (July 16, 2007), in which the Court of Appeal opens with this mild zinger directed at the trial judge:
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.
Judges are people, too. They make honest mistakes all the time. Indeed, my livelihood depends on it.
I guess that every once in a while the Court of Appeal decides that the trial judge needs something just a little bit more attention-getting than the typical, neutral-sounding opinion.