Fixing appellate delay

Three months ago, I filed a complaint with the Commission on Judicial Performance about egregious decisional delay by three justices of the 3rd District Court of Appeal in Sacramento, listing 150 appeals adjudicated in 2018-2020 which had languished for at least two years and as much as seven years from the completion of briefing to submission for decision. Three weeks later, retired Court of Appeal Justice Gary Strankman and I asked the California Supreme Court to transfer an additional 57 still-unadjudicated, long-delayed appeals out of the 3rd District for speedy decision elsewhere -- which the Supreme Court denied. Since then, 94 more such 3rd District appeals have surfaced, for a total of 151 as of Feb. 16, 2021, on top of the previous 150 listed in my CJP complaint.

Opinions have now been filed in about half of those additional 151 moldering appeals -- a long-overdue outpouring. But as the 3rd District occupies itself with plowing through the other half -- which will take many more months -- more neglected cases will pile up.

Most of these cases have been criminal and pro per appeals. If equal access to appellate justice is to mean anything in the 3rd District, something more must be done. The chief justice, the California Supreme Court, the Judicial Council, the Legislature, and the governor should consider these suggestions:

The California Supreme Court and the Chief Justice

The California Supreme Court may "transfer a cause ... [b]etween Courts of Appeal." Cal. Rules of Court, rule 10.1000(a)(1)(C). The Supreme Court should promptly transfer a substantial number of pending appeals from the 3rd District to other districts to help ease the 3rd District's backlog. This will impose little if any burden or additional expense on appellate counsel in the transferred cases because oral argument can be done remotely, as has become routine during the COVID-19 pandemic.

The chief justice may "expedite judicial business" and "equalize the work of judges" by "provid[ing] for the assignment of any judge to another court," including retired judges. Cal. Const. art. 6, Section 6. The chief justice should assign the 3rd District a retired appellate justice or a sitting appellate justice from another district to serve the 3rd District temporarily until its pending appeals are brought reasonably current, and/or a local superior court judge to serve pro tempore in the 3rd District's current vacancy until the governor fills it.

When future judicial vacancies occur at the 3rd District, the chief justice should promptly assign local superior court judges to serve pro tempore in those vacancies until they are filled -- which is the norm in other districts.

The Judicial Council

The Judicial Council should commence steps to amend the California Rules of Court as the Strankman Commission recommended in 2000 to require the administrative presiding justices of the six district Courts of Appeal to (1) advise the chief justice and the Supreme Court regarding periodic equalization of the workloads of justices, districts, and divisions within districts, and (2) submit annual reports to the chief justice and the Supreme Court regarding any need to equalize appellate workloads to account for regional population disparities. This will give the Supreme Court the tools it needs to make occasional workload adjustments as required by shifting demographics.

Another measure the Judicial Council could take would be to promulgate a Rule of Court providing for expedited processing of criminal appeals that involve relatively short prison sentences -- say, fewer than four years -- which, with good conduct credits, are frequently completed in as little as half the time imposed. Reversals and modifications in such cases can't do much good unless they happen quickly.

The Judicial Council should also consider adopting standards for expeditious adjudication of pending appeals -- for example, the Model Time Standards for State Appellate Courts (2014), which call for 95% of civil appeals to be adjudicated within 450 days and 95% of criminal appeals to be adjudicated within 600 days. (By comparison, so far this year the poorest performing 3rd District justice has adjudicated 90% of his cases within 2,155 days.)

The Governor

During the past decade, vacancies on the Courts of Appeal have gone unfilled for many months. The governor should promptly fill the current vacancy at the 3rd District -- as well as two other vacancies at the 6th District in San Jose. In the future, the governor should move expeditiously to fill all such vacancies.

The Legislature

Over the past several decades, California's inland county populations have increased significantly while coastal county populations have decreased or remained static. As a result, appellate caseloads have become disproportionately high at the 3rd District in Sacramento and at Division 2 of the 4th District in Riverside. During the most recent three-month period for which Judicial Council statistics are available (October-December 2020), the number of appeal filings per justice in the 3rd District exceeded the statewide average by 18%, while the number in Division 2 of the 4th District exceeded the statewide average by 62%.

The time has come for the Legislature to adjust the allocation of appellate justices statewide in accordance with shifting demographics. At a minimum, the Legislature should add one justice to the 3rd District and one justice to Division 2 of the 4th District. This can be done without increasing the judiciary's budget, through a commensurate reduction in justices elsewhere. The 1st District in San Francisco -- currently at 37% below the statewide average number of appeal filings per justice -- is a good candidate for at least one of those reductions, if not both.

The current number of 1st District justices, at 20, is a quirk of legislative malpractice dating back to 1981, when the Legislature added three justices to the 1st District and simultaneously created the 6th District in San Jose consisting of four counties carved out of the 1st District. The legislation had originally been intended to address a backlog at the 1st District by giving it three more justices, but at the last minute a powerful San Jose state senator fattened the bill to carve out the 6th District as well -- with the result that the 1st District's number of justices was increased from 16 to 19 even as 35% of its caseload was transferred to the new 6th District. The result was to give the 1st District a disproportionately light caseload -- a gap that has since widened. Today, even with two fewer justices, the 1st District's caseload would still be well below the statewide average.

The Legislature should also consider allowing long-sitting Court of Appeal justices to take senior status similar to judges of the federal circuit Courts of Appeals, so that they may continue serving their courts with a reduced caseload.

The California Constitution

Finally, a bold proposal: Decisional delays like those in the 3rd District could be discouraged by putting the justices' salaries in play -- much like the 90-day rule makes payment of judicial salaries contingent on opinions being filed within 90 days of a case's submission for decision. Perhaps it's time to amend the California Constitution to set a deadline -- say, a year -- for the submission of appeals after they have become fully briefed, so that each case must be calendered for oral argument within that time or judicial salaries will be withheld. This would be strong medicine, but the 3rd District has made a good case for it. 