Brief says appellate attorneys fear objecting to delays

In a brief filed Wednesday, appellate attorney Jon B. Eisenberg argued he has standing to sue the 3rd District Court of Appeal over delays in issuing criminal decisions because attorneys representing parties in those cases might feel pressured to stay quiet for fear of losing work.

"The challenge to petitioner's standing fails because petitioner has public interest standing, by which a writ of mandate lies -- despite petitioner's lack of a beneficial interest in the proceeding's outcome -- if the question presented is one of public right and the object is to enforce a public duty," Eisenberg wrote.

Reached by phone, Eisenberg declined to elaborate on his brief. The court and its attorney, Reed Smith LLP partner Raymond A. Cardozo, did not respond to emails seeking comment. Eisenberg v. Court of Appeal for the Third Appellate District, S269691 (Cal. Sup. Ct., filed July 6, 2021).

The Healdsburg based Eisenberg has asked the state Supreme Court to compel the 3rd District to prioritize criminal appeals. He has waged a monthslong campaign to force the court to address what he says are unreasonable delays. The Supreme Court rejected his earlier petition to transfer cases out of the 3rd District. He also has a pending complaint with the Commission on Judicial Performance. Attorneys in two of the 66 cases Eisenberg cited in his writ have told the Daily Journal the court only decided the appeals after their clients had served their sentences.

In his response filed Aug. 9, Cardozo wrote "record-specific contentions may be raised only by the appellant in each proceeding, each of whom presumably is represented by other counsel."

Eisenberg is not a participant in any of the dozens of cases he mentioned in his writ. But he argued, "The case for public interest standing is especially compelling," because of the reason he believes the appellate defense attorneys did not challenge the court over the delays.

"The aggrieved parties in this proceeding are, in fact, unable to proceed on their own behalf," he wrote. "The Central California Appellate Program (CPAP), which administers the Third District's appointed counsel program, refused to join this writ petition. Indeed, CCAP has instructed its participating attorneys 'not to engage in any conversations about this writ.' (Second Eisenberg decl., exh. 24.) Without assistance from their own attorneys, the aggrieved defendants in this proceeding are, as a practical matter, unable to seek judicial relief."

According to its website, the "Central California Appellate Program is a nonprofit law office, created pursuant to California Rule of Court 8.300(e), serving the 3rd and 5fth District Courts of Appeal, and dedicated to improving the quality of indigent representation in criminal, juvenile, dependency and mental health appeals."

These rules specify, "The Court of Appeal must evaluate the attorney's qualifications for appointment" based on criteria provided by the appellate program. The court also maintains a list of attorneys eligible for appointment, while the Project oversees the assigned attorneys.

Reached by phone on Wednesday, a representative of the Central California Appellate Program declined to comment.

Despite these pressures, Eisenberg wrote, three attorneys defending clients in some of these cases have spoken out. A client in one case had his 44-month sentence for shoplifting reversed, he wrote, but only after his case had been fully briefed for 52 months. While incarcerated, this man was assaulted by three other inmates, spent long periods in solitary confinement and attempted suicide three times, Eisenberg wrote.

The Central California Appellate Program is the only one in the state that serves two appellate districts. Their combined areas cover a huge swath of inland California, from the Oregon border to Kern County, about 600 miles to the south. Several counties in this region grew two to three times faster than the state as a whole between 2010 and 2020, according to the U.S. Census.