Appellate lawyers task force to study decision delays

The California Academy of Appellate Lawyers is forming a task force to look at the issue of long delays in state appellate court rulings, the group said Monday.

It weighed in on a recent complaint to the state Commission on Judicial Performance regarding three 3rd District Court of Appeal justices, and said the evidence supporting the complaint suggests "that appellate justice has been egregiously delayed to the people the 3rd District serves."

"The allegations are detailed, supported with apparently reliable data from the court's public records, and very troubling," read a public statement the Academy released. "We do not prejudge the allegations, but believe they warrant diligent investigation by the commission."

"The academy will have no further comment on this complaint at this time, but is forming a task force to determine its next steps with respect to the problem of appellate delay," academy Secretary-Treasurer Laurie J. Hepler said in an email.

Appellate attorney Jon B. Eisenberg filed the commission complaint on Jan. 26. More than 20 years ago, he served on a different task force that became known as the Strankman Commission, named after its chair, since-retired appellate Justice Gary E. Strankman. Eisenberg is a past president of the academy and remains a member.

Eisenberg's letter to the Commission on Judicial Performance raised concerns about the speed with which three justices in particular on the 3rd District court were processing appeals. His complaint cited: Presiding Justice Vance W. Raye and Justices Coleman Blease and William J. Murray Jr. Eisenberg said his extensive research found all three had decisions that took five years or more to deliver. Murray also produced opinions at a fraction of the statewide average in recent years. Eisenberg said.

The state court administration and the Judicial Council have a policy of not commenting on pending commission investigations, and have declined to address Eisenberg's allegations publicly.

The academy has a long history of weighing in on particular appellate cases with letters or amicus briefs. But these often tackle technical issues. For instance, last year the academy urged the justices of the 1st District Court of Appeal, Division 3 to drop an appeal brought by activists for disabled people's rights on procedural grounds while taking "no position on the underlying issues."

Getting involved in a commission complaint against three long-standing justices appears to be rather unusual for the academy.

Eisenberg on Monday reiterated his position that other appellate attorneys have also long noticed problems in the 3rd District, even if most have been unwilling to speak about them publicly.

The academy statement "reflects the widespread concern among California appellate practitioners of which I spoke in my CJP complaint," Eisenberg said in an email.

Eisenberg's own concerns with the speed of appellate rulings go back over 20 years. In 2000, he was a member of an Appellate Process Task Force convened by California Chief Justice Ronald M. George.

The commission made several recommendations, but the judicial branch never acted on most of them. They recommended the Chief Justice should periodically transfer cases between courts to equalize workload. Their report also urged the California Rules of Court to be amended to require an annual report on appellate workloads.

"There are many reasons disparities may arise and persist over time," the report stated. "Population growth in a district or division may increase the number of cases being filed in lower courts and appealed to the Court of Appeals."

But the report also noted the need for longer term solutions. For instance, it cited "substantial practitioner concern with transferring cases between districts, with particular emphasis on the inconvenience and expense."

Other factors the report identified include case types and vacancies. All three factors appear to have affected the 3rd District, based on Eisenberg's report. Led by the fast-growing Sacramento metropolitan area, the 23-county district has seen more population increase in recent years than many other areas of the state. The court gets the lion's share of appeals relating to the state government, including a flood of cases following Governor Brown's 2011 decision to abolish redevelopment agencies.

The court has also been short one justice since M. Kathleen Butz announced her retirement in July.

The Strankman report focused on setting up routine processes that could help address these sorts of disparities. It noted there was already an existing process for a particular district to seek caseload rebalancing, but it was rarely used.

"This practice is strategically cumbersome, puts the onus on an impacted district for seeking assistance and finding a district willing to provide assistance, and, to some extent, relieves the chief justice and the Supreme Court the responsibility for making an independent determination of the need to corrective action," the report stated.

The Judicial Council has been compiling annual statistical reports on courts around the state since the 1990s. These have revealed the 3rd District faces a higher workload than other appellate courts.

The most recent report, issued at the end of January, showed the 3rd District issued the most opinions per "judicial equivalent" than any other appellate court from 2018 to 2019, 12% more than the average. Yet this productivity still left the 3rd District with a far higher number of pending appeals than other courts.