High court moves cases from 6th District Court of Appeal, not for the 3rd

Last month, the California Supreme Court rejected a request from a pair of prominent appellate specialists to transfer cases out of the overburdened 3rd District Court of Appeal. Instead, on Monday, the state high court transferred two dozen cases out of the 6th District, a court that has not suffered from the same delays as the 3rd.

Jon B. Eisenberg, the Healdsburg-based appellate attorney who has been working with retired appellate Justice Gary E. Strankman to bring attention to the backlogs on the 3rd District, thinks he knows why. The answer, he said, can be found in the docket entries announcing the transfers.

"One can reasonably infer that the chief justice denied the transfer request by Justice Strankman and me because the 3rd's administrative presiding justice, Vance Raye, must have actively opposed it, in contrast with the transfers from San Jose, in which the presiding justices on both sides of those transfers had requested them," Eisenberg said on Tuesday.

Chief Justice Tani G. Cantil-Sakauye approved the transfer of 24 cases from the 6th District Court of Appeal to the 4th District, Division 3 on Monday. She transferred six cases between the same two courts in March. In February, she transferred five cases from the 6th to the 4th District, Division 1. The 35 total cases transferred out of the 6th District this year include a mix of civil and criminal matters.

Eisenberg pointed to docket entries showing the presiding justices at each court approved the transfers.

"Dear Mr. Navarrete, Pursuant to California Rules of Court, rule 10.1000(a) (1)(C) and at the direction of the Administrative Presiding Justice and Presiding Justice of the Sixth and Fourth Appellate Districts, I am requesting the transfer of the following matters to the Fourth Appellate District, Division 3," reads an April 5 docket entry for one of the transferred cases.

The letter was addressed Supreme Court Clerk/Executive Officer Jorge E. Navarrete. The high court followed with a formal order on Monday. The earlier transfers included similar notations. However, according to the California Rules of Court, the Supreme Court does not need the permission of presiding justices to transfer appellate cases.

Eisenberg filed a complaint with the Commission on Judicial Performance in January, asking it to look into delays in the 3rd District. He and Strankman later sent two letters to Cantil-Sakauye asking her to transfer cases out of the district.

They cited dozens of cases they said were delayed two years or more, with some stretching out over six years. The court docketed and later rejected their request in In re: Transfer Request, S267546 (Cal. Sup. Ct., filed Feb. 18, 2021).

"Transfer Request, In Re, S267546 resolved the matter; the court has no further response," said California Supreme Court spokesman Cathal Conneely in an email when reached on Tuesday. Representatives with the 3rd, 4th and 6th Districts did not reply to emails seeking comment.

The one appellate justice who is currently sitting on the Commission on Judicial Performance serves in the 4th District, Justice William S. Dato.

But appellate attorney Benjamin G. Shatz said people in his field know generally that delays have been an issue on some courts.

"The appellate bar has noticed the transfers recently and has noticed that it comes at a time when appellate delay has been in the forefront of the attention of the legal practice in the appellate bar," said the partner with Manatt, Phelps & Phillips, LLP in Los Angeles. "It would be hard to not connect those dots and think that maybe the transfers are an attempt to diminish delay. By definition they must be. Otherwise, why else would they be done?"

According to the Judicial Council's 2020 Court Statistics Report, the 3rd District has the highest number of pending appeals per justice and the longest time needed to process 90% of appeals. The 6th District also lags in several categories but outperformed the 3rd District.

The 3rd also has one vacancy among its 11 authorized judges. The 6th District has two vacancies among seven authorized justices. The other four districts also have one opening, though this appears to have been less of an issue in the 1st, 2nd, and 4th Districts, which each have at least 20 allocated justices.

Eisenberg praised Mary J. Greenwood, who was confirmed as the 6th District's first female administrative presiding justice in 2018.

"The 6th District has previously been among the slower appellate courts statewide, but that's changing under Administrative Presiding Justice [Mary J.] Greenwood, who's being very proactive in getting the court more current," Eisenberg said.

Eisenberg was a member of an Appellate Process Task Force that Strankman led in 2000, looking at ways to reduce appellate delays. The body became known as the Strankman Commission. Strankman retired as the presiding justice of the 1st District Court of Appeal, Division 1, in 2001. The task force report recommended transferring cases out of the 4th District -- the same district now taking on part of the 6th District's excess caseload -- because at the time it had "by far, the largest backlog of cases in the state."