California Supreme Court won’t transfer cases from 3rd District, despite delays

The California Supreme Court has denied a request from a prominent appellate attorney to transfer cases out of the 3rd District Court of Appeal. The order came in response to a letter sent last month by Jon B. Eisenberg warning of numerous long-delayed decisions from the court.

"The request, filed on February 18, 2021, to transfer matters pending before the Court of Appeal, Third Appellate District to other districts of the Courts of Appeal is denied in its entirety," read the en banc ruling signed by Chief Justice Tani G. Cantil-Sakauye. In re: Transfer Request, S267546 (Cal. Sup. Ct., filed Feb. 18, 2021).

Eisenberg responded by email, "The chief Justice should take a close look at Article VI, Section 6(e) of the California Constitution" in reference to the provision allowing her to shift cases.

The executive officer of the 3rd District Court of Appeal meanwhile responded in an email received Wednesday to Eisenberg's complaints about delays in issuing opinions.

Andrea K. Wallin-Rohmann said the court delivered opinions at the highest rate of any appellate court in recent years, and took issue with some of attorney Eisenberg's statements.

"Every year the 3rd District Court of Appeal considers over 2,000 appeals and files approximately 1,000 written opinions," Wallin-Rohmann's email said. "We are currently working on 765 opinions. The court endeavors to complete work on each case in a timely manner and succeeds in the vast majority of cases presented to it for decision."

She added, "The 2018-19 Court Statistics Report provided by the Judicial Council indicates, 'The 3rd District reported the highest rate, 94 opinions per judge equivalent -- 11.9 percent higher than the statewide average.' In 2016-17, the report indicated the 3rd District had the highest levels of filings per justice but also had the highest levels of dispositions per justice, ... '18% higher than the statewide average.'"

A past president of the California Academy of Appellate Lawyers, Eisenberg filed a complaint with the Commission on Judicial Performance in January. He urged the watchdog agency to address what he said is a very large number of appeals that have languished for two years or longer at the 3rd District.

He and retired appellate Justice Gary E. Strankman followed up with a series of letters to Cantil-Sakauye, urging her to transfer cases to other courts. Strankman led a commission in 2000 that urged then-Chief Justice Ronald M. George to take steps to speed up the appellate courts. Eisenberg was a member of what became known as the Strankman Commission.

In their latest letter to Cantil-Sakauye on Monday, Strankman and Eisenberg wrote that the pace of decisions coming out of the district appears to have increased. Of the group of 57 of the oldest cases they flagged in a Feb. 16 letter to the chief justice, 16 have now been calendared, submitted for decision or otherwise moved forward, they said.

"The other 41 cases remain uncalendared, unsubmitted and unadjudicated," they added.

Wallin-Rohmann responded to that in the email, saying, "The 41 cases alluded to in the letter have not remained 'untouched.' All have been worked on extensively and indeed tentative opinions have already been prepared in each of them. By no logic would the transfer of these cases to another district be advisable -- if the object is to assure a speedy disposition going forward."

On Wednesday, Eisenberg wrote in an email that the court's response didn't address his concerns.

"Wallin-Rohmann cites statistics for the 3rd District's decisional output four years and two years ago," he wrote. "The problem, however, is delay, not output."

He added, "Recent delay statistics are more revealing -- e.g., for civil cases in January-March 2020, the court's 90th percentile internal processing time was nearly triple the length statewide and more than seven times the length in the two quickest divisions. After briefing, 10% of 3rd District civil appeals languished more than 35 months and half more than 11 months.

"Wallin-Rohmann's assertion about 41 still-pending cases -- that they 'have been worked on extensively' and 'tentative opinions have already been prepared' -- indicates only that staff attorneys have worked up those cases. This doesn't necessarily mean adjudication is imminent. Most have been fully briefed for three to six years.

"Instead of tasking a court clerk to defend the indefensible, the 3rd District should reach out to the chief justice for help," Eisenberg wrote. "And I don't mean by transferring cases now nearing disposition; I mean cases not yet in the pipeline -- whether among those 41, or other long-delayed cases yet to surface."