Justice with slow record clears up 40 cases in 3 months

In December 2011, Kevin Flannery appealed his sentence of five years' probation. Two weeks ago, California's 3rd District Court of Appeal rejected his appeal, more than four years after the ruling would have been relevant.

The ruling in People v. Flannery, C069945 (Cal. App. 3rd, filed Dec. 12, 2011) was part of a recent flood of unpublished opinions out of the 3rd District. It was one of about 40 that Justice William J. Murray Jr. has signed since veteran appellate attorney Jon B. Eisenberg filed a complaint Jan. 26 with the Commission on Judicial Performance, citing scores of long-delayed decisions from the court. According to Eisenberg's research, Murray wrote just 37 opinions a year between 2018 and 2020.

"What's emerging is a systemic impairment of access to timely appellate review for certain classes of litigants," said Eisenberg when reached by email on Monday. "That's a constitutional due process and equal protection problem, which is no small thing for an appellate court to be perpetrating."

The commission's 2020 annual report, released April 1, shows that it sent a confidential advisory letter to an unnamed appellate justice last year warning of excessive delays: "An appellate justice delayed decision in an appeal by finalizing an opinion in the case several years after the case was fully briefed and assigned to the justice."

"Commission investigations are confidential and I cannot comment on whether any matter is under investigation," Gregory Dresser, director and chief counsel of the commission, wrote in an email on Monday when asked whether the advisory letter was sent to a 3rd District justice. "I also cannot identify, or comment on, any judicial officers who were the subject of confidential discipline."

Judicial Council spokesman Cathal Conneely said via email the council had "no knowledge of or information" of any contacts between Murray and the Commission on Judicial Performance. No representative of the 3rd District replied to an email seeking comment.

Eisenberg has tracked several metrics which together suggest Murray's cases have suffered some of the longest delays in the state. In recent years, Murray has taken about three times longer than the state median to deliver civil and criminal decisions. He's taken about twice as long as the median time to complete 90% of his cases.

Eisenberg said he has tracked 21 other recent long-delayed decisions by different justices on the 3rd District. In one of those cases, Justice Coleman A. Blease struck "the imposition of an electronics search condition" on a defendant's five-year probation, nearly five years after an appeal. People v. Jaco, C082738 (Cal. App. 3rd, filed Aug. 16, 2016).

Some of the long-delayed opinions are Wende cases. This is a reference to appeals in criminal cases that raise no issues of merit, as laid out in People v. Wende, (1979) 25 Cal. 3d 436. These are usually among the most routine criminal appeals for a court to deal with.

Eisenberg was part of a commission led by since-retired appellate justice Gary E. Strankman that issued a 2000 report urging the California Supreme Court to move cases between courts to address appellate delays. Two months ago, Eisenberg and Strankman requested the court move cases out of the 3rd District, which has the longest current delays of any appellate court in the state. The court declined to do so. In re: Transfer Request, S267546 (Cal., filed Feb. 18, 2021).