Appellate attorneys group suggests efficiency improvements

The California Academy of Appellate Lawyers has submitted recommendations to the California Judicial Council "to improve the efficiency of the appellate process statewide." These come in response to allegations of long-delayed opinions in one district, and include a request to implement changes recommended in another report 21 years ago.

"Starting in January 2021, serious complaints have been made about delays in the resolution of criminal appeals in the Third District Court of Appeal in Sacramento," stated an academy news release. "The California Supreme Court recently recommended the California Judicial Council study the issue. The academy convened a committee to develop recommendations to address delay in criminal and civil appeals in our state."

Judicial Council spokesman Cathal Conneely said the agency had not received the report and he could not comment. A representative of the 3rd District court did not respond to an email seeking comment.

The academy convened the task force in February. According to comments by chair Elliot L. Bien in the Daily Journal, it was formed in the wake of "highly publicized" reports of delay on the 3rd District court and a complaint by appellate attorney Jon B. Eisenberg filed with the Commission on Judicial Performance. Eisenberg later filed an unsuccessful petition to the California Supreme Court seeking an order to prioritize dozens of long-delayed criminal appeals, as well as a rejected request to transfer some cases out of the 3rd District.

The report makes three principal recommendations, each partly drawn from a pair of decades-old reports. First, it called for the parties to prepare records for civil appeals, though with exceptions made for some litigants. This mirrors a suggestion J. Clark Kelso made in his 1994 Report on the California Appellate System, which identified records as "the most significant source of appellate delay."

"Superior court clerks will remain under considerable pressure for the foreseeable future, and their coordination and forwarding of reporters' transcripts to the reviewing court can cause significant delay," the report argued.

Second, the task force report calls for "more frequent use of memorandum opinions in simpler civil appeals." This would require a process for quickly identifying simpler appeals as they come in and prioritizing them for faster resolution.

It mirrors a recommendation from the 2000 Strankman Commission report. Officially known as the Appellate Process Task Force, the commission was led by Gary E. Strankman, the since-retired presiding justice of the 1st District Court of Appeal, Division 1. Eisenberg was a member; Strankman later joined Eisenberg on one of his petitions to the California Supreme Court.

The third recommendation, making it easier to rebalance the workload among the state's appellate districts, also draws on the Strankman Commission report. The Academy called for the presiding justices of the six appellate districts to meet annually to review their workloads. The report also called for "more frequent public reports" on workloads and more uniform rules on time limits and case type priorities "to preference cases in their proper order."

The report said "the academy took no position on the merits of" Eisenberg's unsuccessful petition to the California Supreme Court case. But it did welcome "the resulting Supreme Court recommendation that the Judicial Council study the calendar preference in criminal cases."

"We suggest, however, that all reviewing courts be taken into account in this study, not just one, because the Court Statistics Reports over the last decade show a considerable disparity of the slowest dispositions for both criminal and civil appeals," the report said. "There are also many possible reasons for slower dispositions, including judicial and staff vacancies, other personnel issues, the management methods of presiding justices, and their openness to inter-court case transfers and temporary assignments."

"I heartily endorse the CAAL's recommendations for annual review of statewide appellate workloads to consider case transfers and other delay-reduction measures, and for promulgation of rules prescribing guidelines and uniform time limits for hearing and resolving cases that have statutory calendar preference," Eisenberg said in an emailed statement. "It's been a long 20 years since the Strankman Commission proposed measures like these. Their time has come."

Eisenberg also stressed he "did not serve on the CAAL committee that produced this report or participate in its preparation."

Bien is an appellate attorney with Bien & Summers in San Rafael. The other members of the task force are attorneys Rex S. Heinke, Thomas P. Murphy, James C. Nielsen, Scott M. Reddie and Brian A. Sutherland.

Bien and Eisenberg are both past presidents of the academy. The group's current president is Raymond A. Cardozo, a partner with Reed Smith LLP in San Francisco. Cardozo represented the 3rd District in Eisenberg v. Court of Appeal for the Third Appellate District, S296991 (Cal., filed July 6, 2021).