State appeals justices should be allowed to semi retire, some say

Could California benefit from letting state appellate court justices take senior status as federal judges do?

It's a question more attorneys are asking.

Veteran appellate attorney Jon B. Eisenberg kicked off a debate within the California appellate bar late last month with a Commission on Judicial Performance complaint alleging especially long decision times by three justices on the 3rd District Court of Appeal.

Meanwhile, several federal judges -- mainly appointees of Democratic presidents -- have announced they were taking senior status after Democratic President Joe Biden was sworn in to replace Republican Donald Trump.

Senior status is a form of semi-retirement, enacted in the federal system in 1919 and limited to judges who meet age and experience requirements. Senior judges can continue working, but the president may appoint a new judge as well. Judges on senior status often take on a lighter workload or wind down their existing caseload without taking new cases.

Appellate attorney Michael G. Colantuono, a former State Bar president, noted that California already has a system for allowing appellate justices to take on a role similar to senior status. He pointed to the 3rd District, where Justice M. Kathleen Butz announced in July she was stepping down.

"The chief justice does have the power to appoint retirees to the courts of appeal," said the partner with Colantuono, Highsmith & Whatley PC in Grass Valley. "When Justice Butz retired last summer, she didn't disappear. The chief appointed her provisionally to finish out her cases."

Butz has continued to participate in opinions; each contains a footnote explaining her status.

Colantuono said Chief Justice Tani G. Cantil-Sakauye could also simply appoint a retired judge to work at an appellate court while it clears a backlog of cases. But the current process is more cumbersome than the federal system.

Such temporary appointments could be useful when a court is dealing with some kind of temporary stressor, Colantuono said, such as the flood of cases that hit the 3rd District after Gov. Jerry Brown abolished redevelopment agencies in 2011. Instead, those cases helped fuel a growing problem with delayed decisions in the district.

Eisenberg's complaint mentioned three specific justices who have several cases that have been fully briefed for years without an opinion being delivered. One of these justices, Coleman A. Blease, is 90.

Reached on Wednesday, Eisenberg endorsed both senior status and appointing retirees.

"It's a good idea," he said in an email. "In fact, I suggested something similar to Justices Jonathan Renner (3rd District) and James Humes (1st District) back in early 2018, in connection with a CAAL [California Academy of Appellate Lawyers] program I organized on appellate court delay for which they and Clark Kelso were panelists -- appointing retired Court of Appeal justices to assist the districts that are in the worst shape. Senior status would be in the same vein but more efficient."

Eisenberg is a past president of the academy. In 2000, he was part of the Strankman Commission that recommended several changes to address delays in the appellate courts. That report also noted that some ideas, such as shuffling cases between existing districts, could be confusing and expensive for litigants and counsel.

Colantuono is currently a vice president of the academy, which is assembling a task force to look at appellate delay. He declined to comment directly on Eisenberg's complaint or any particular court, but he said it was time to revive the work of the Strankman Commission.

"It's been a generation now since we've had a hard look at the causes and cures for delay in the appellate courts, and we think it's time to think that through again," Colantuono said.

Data from the Federal Judicial Center shows that about 40% of U.S. circuit judges are on senior status, a number that hit an all-time high in 2019. More than a quarter of federal appellate decisions include at least one senior or visiting judge.

But a recent report from the center also suggests the ability to take senior status may contribute to the increasing age of federal judges. Of the 42 federal judges who left the job in 2020, 35 did so by dying.

"In recent decades, many federal judges have assumed senior status even though eligible for full retirement," the report read. "This trend may help account for the growing proportion of judges whose terms have ended in death rather than resignation or retirement."

Gov. Gavin Newsom could also help fix the situation by filling the six appellate justice positions that are vacant, including Butz's seat. The appellate courts had zero vacancies when Newsom took office two years ago.

Meanwhile, Colantuono said the academy task force will move forward by looking at many factors that could lead to appellate delays. The goal will be to come up with solutions and then engage the Legislature and Judicial Council to enact them. But he added that this effort, like some recent appellate decisions, could take a while.

"We don't have a particular timeline," Colantuono said. "We are a bunch of wonky appellate lawyers, so it will probably be a deliberative process."