Complaint against 3rd District justices divides attorneys

A complaint filed to the Commission on Judicial Performance this week alleged problematic delays in decisions from three justices on the 3rd District Court of Appeals. But attorneys active before the court don't all agree.

"I have had many cases before the 3rd DCA and have not had the same experience," James A. Murphy, founding shareholder with Murphy Pearson Bradley & Feeney PC in San Francisco, said in an email Thursday.

"I did not have a 3rd District argument last year, but had a couple the year before and neither involved any unusual delay," Paul J. Killion, a partner with Duane Morris LLP in San Francisco, said by email.

But other attorneys said they have noticed delays -- and sometimes warned clients.

"When potential clients contact me with 3rd District appeals, I feel obligated to tell them that in comparison to other parts of the state, there is a significant chance that the appeal would take an extremely long time," Wendy C. Lascher, a partner with Ferguson Case Orr Paterson LLP in Ventura, said in an email.

Healdsburg-based appellate attorney Jon B. Eisenberg filed the complaint. Appellate attorneys also said his letter to the Commission about the three justices on the Sacramento-based court had been circulating for days.

"Allowing conditions such as Jon reports puts the entire appellate system in a bad light," Lascher added. "The sense that 'nobody cares, nobody is even paying attention' rubs off on public attitudes toward the judicial system and toward government in general."

The Judicial Council's annual statistical report has noted delays in the 3rd District going back at least 15 years. But these reports don't delve into particular cases or justices.

Eisenberg did. His complaint singled out three of the court's 10 current justices: Presiding Justice Vance W. Raye, Justices Cole Blease and William J. Murray Jr. All three have produced decisions at below the average rate for the court, which itself has lagged behind other courts.

The complaint also focused on the time between when a case was fully briefed and submitted for decision. Raye and Blease each produced decisions at relatively close to the same rate as other justices, but each had individual cases with decision times stretching out to five years or longer.

"The 3rd has been one of the slowest courts for quite awhile," said Benjamin G. Shatz, a partner with Manatt, Phelps & Phillips LLP in Los Angeles. "But that's not anything I would call a permanent badge of dishonor. I've been practicing long enough to remember when it used to be Orange County was the slowest. Then I think Riverside had a go at it."

Shatz added that appellate justices are hardworking people who hold highly sought-after jobs. When a court is slow, there is generally a reason. He and other attorneys said the 3rd District should probably have more justices. The court has also often had vacancies in recent years, he said. It is currently down one justice following the retirement of M. Kathleen Butz last year.

The 3rd District also often faces a heavy workload. It is tasked with taking most appeals relating to the state government. Shatz pointed to the flood of challenges that made their way to the court in the years after Gov. Jerry Brown eliminated redevelopment agencies in 2011, with a few of these cases still active.

Lawyers talk all the time in private about particular judges or courts, Shatz said, but it's rare for these discussions to emerge so publicly.

"It's always surprising when a member of the bar takes a stand against a court or particular justices, because lawyers naturally want to be very careful and not offend," Shatz said. "Jon obviously thought this was important enough to bring to the commission's attention."

"As I can tell, no investigation has been ordered so the complaint would otherwise be confidential and the three justices would not know about it," Murphy said. "But this complainant went public and now everyone knows about it. Makes you think there may be some ulterior purpose."

"Because the problem is so serious and urgent," Eisenberg replied in an email.

His complaint noted several cases in which litigants appear to have served longer sentences or suffered other consequences because of delays.

Some attorneys said Eisenberg has long been outspoken, and might have become even more so with more than 40 years of experience.

Myron Moskovitz, legal director with the Moskovitz Appellate Team in Piedmont, said he hasn't noticed problems with the 3rd District, but added his work in recent years has mainly been before different appellate courts. He said many appellate jurisdictions appear to have used the COVID-related slowdowns at superior courts as an opportunity to "clear out their dockets."

"This past year they've been really quick," Moskovitz said. "I think it's because they're not getting many new cases because the trial courts are closed. I usually get five to 10 opinions a year. Last year I got 20."