3rd District trades filings with opposition in case over delays

The attorney for the 3rd District Court of Appeals has made a fresh attack on the standing argument for an appellate attorney suing the court, stating that an ACLU amicus curiae letter misstates a state Supreme Court's opinion.

Meanwhile, writ petitioner Jon B. Eisenberg, an appellate attorney in Healdsburg, said the appellate court's delays in criminal cases are hurting crime victims as well as defendants.

In a letter to the Supreme Court last week, the 3rd District court's attorney, Raymond A. Cardozo, challenged the rationale behind an amicus brief the ACLU of California filed to support Eisenberg. Eisenberg v. Court of Appeal for the Third Appellate District, S269691 (Cal. Sup. Ct., filed July 6, 2021).

"The ACLU asserts that petitioner's public interest standing is 'evident' but omits to mention this court's controlling authority that holds the exact opposite," Cardozo, a partner with Reed Smith LLP in San Francisco, wrote in a letter dated Sept. 2.

In a letter of amicus curiae sent Aug. 23, Emilou H. MacLean argued the defendants have failed to address the substance of Eisenberg's arguments. The senior staff attorney with the ACLU also argued Eisenberg has public interest standing to pursue his case. But Cardozo argued that neither "a crime victim nor any other member of the public has general standing to intervene in an ongoing criminal proceeding against another person," citing Dix v. Superior Court, 53 Cal. 3d 442 (1991).

"Since Dix, California's voters have added a narrow exception to Dix's general rule, recognizing that crime victims may be 'heard' in 'any proceeding in which a right of the victim is at issue,'" Cardozo added. "The fact that this exception to Dix's limits on public interest standing applies to only one category of members of the general public further leaves the controlling law clear and settled."

"The original writ proceeding is an independent citizen action raising criminal justice issues, not an effort to intervene in an ongoing criminal proceeding against another person," Eisenberg wrote in a reply letter on Friday. "Dix, by its own express disclaimer, is inapplicable here."

Eisenberg has been waging a monthslong campaign on multiple fronts to force the 3rd District to address what he says are unreasonable delays in criminal cases. His writ petition before the high court seeks to force the court to prioritize 66 long delayed cases.

On Tuesday, Eisenberg submitted a signed declaration from a crime victim involved in one case he highlighted. Linda Fuetz wrote she was among those whom defendant James Stanley Koenig defrauded. The court's long delay in deciding Koenig's appeal has harmed her efforts to receive restitution for the tens of thousands of dollars she lost, she stated. People v. Koenig, C074411 (Cal. App. 3rd, filed July 31, 2013).

"On August 4, 2015, I filed a claim for restitution with the California Victims of Corporate Fraud Compensation Fund," she wrote. "The length of time it has taken me to pursue this restitution, which has been made longer by the Court of Appeal's delay in deciding Koenig's appeal, has been far too long."