Jon B. Eisenberg

More than 40 years ago, Eisenberg embarked on a legal career that would take him deeply into California’s appellate system. For 14 years, he worked as staff attorney on the 1st District Court of Appeal. He wrote the Rutter Group’s practice guide on civil appeals and writs, which he has updated annually since 1989. He argued a dozen state Supreme Court cases and more than 100 matters in state and federal appellate courts.

Now, nearing retirement, in what he terms “my swan song as a practitioner,” Eisenberg is accusing the 3rd District Court of Appeal of massive, unconstitutional delays in issuing criminal case opinions that have left some defendants with their cases fully briefed but undecided to serve all or part of a prison term before eventual reversal. In one case of many he located, a man served four years of a 40-years-to-life sentence on a murder conviction while his appeal languished before being reversed for insufficient evidence. People v. Ebert-Stallworth, C076574 (3d DCA, op. filed Jan. 22, 2018).

Since 2018, Eisenberg calculated, the 3rd District has delayed calendaring at least 278 fully briefed criminal appeals for at least 12 months and as long as 99 months.

To press his argument, Eisenberg has filed a rare original writ petition in the state Supreme Court and a complaint with the Commission on Judicial Performance. “I’m asking the CJP to discipline the justices and the Supreme Court to fix the problem,” he said. Eisenberg v. Court of Appeal for the Third Appellate District, S269691 (Ca. S. Ct., filed July 6, 2021).

Eisenberg said he’s worked full time on the effort for months, combing through dockets, assembling data and drafting pleadings. “I was wallowing in all these numbers during the Covid lockdown while my friends were doing jigsaw puzzles,” he joked.

Still, the process was serious. “It’s been an overwhelming task to grasp the issue and put it in writing. Once I fully understood what had been happening, I felt it was my duty as a 42-year member of the bar to call out this stain on the appellate process in California. I am trying to right a terrible wrong.”

He believes he’s uniquely qualified for the task. “On the verge of retirement, I’m retaliation-proof,” he said. “Nobody else was going to do this.” In an August brief he argued that he has public interest standing to pursue the matter because other attorneys representing parties in the cases at issue feel pressured to stay quiet for fear of losing work or harming their clients.

Eisenberg analyzed the origins of the delays and concluded that Administrative Presiding Justice Vance W. Raye is not fully committed to appeal as a matter of right in criminal cases and has chosen to slow track some types of appeals. Eisenberg found that in 1981 Raye—then a senior assistant attorney general—unsuccessfully urged the Legislature to limit appellate rights.

“It does seem to suggest a purpose here,” Eisenberg said. “I’m not making any friends at the Third District, but so be it.”

- John Roemer