Justice of 3rd District with lagging caseload may be nearing exit

Is there a retirement coming on the 3rd District Court of Appeals?

Justice William J. Murray Jr. has written no opinions, published or unpublished, since Dec. 8. He turns 65 on Jan. 27, making him eligible for full retirement.

Over this same six-week period, his colleagues on the court have filed 14 published opinions. Murray’s name appeared as a concurring vote on one. The 3rd District has also filed 140 unpublished opinions between Dec. 9 and Jan. 17. Murray cast a vote on 12 of them.

“It certainly makes one wonder what’s happening behind the scenes,” recently retired appellate attorney Jon B. Eisenberg said by email.

For more than a year, the Healdsburg-based Eisenberg has been on a quest to draw attention to what he says are unreasonable delays on the court. On Monday, he sent a letter asking for administrative records with the Judicial Council of California. Eisenberg is attempting to find out how much the agency paid law firms to defend against two petitions he filed with the California Supreme Court over alleged delays in the 3rd District.

The court has operated with 10 justices in recent years. The Commission on Judicial Appointments confirmed Sacramento Superior Court Judge Laurie M. Earl to the 3rd District on Jan. 6 as the court’s 11th justice, but the court’s website does not yet list her on its roster. This means that out of 154 opinions, each signed by three justices, one would expect the average justice to put their name on about 46 of them. But Murray has signed 13, and written none.

The 3rd District did not respond to an email seeking comment on Murray’s declining output.

Eisenberg has singled out Murray as the least productive justice on the court. In a Jan. 26, 2021, complaint with the Commission on Judicial Performance, he wrote that Murray wrote 37 opinions a year from 2018 to 2020, far less than his peers. The commission has announced no action related to that complaint.

Murray became more active after that complaint, Eisenberg added, writing about 40 opinions over the next three months. Many of these decided criminal appeals. But over the last seven months of 2021, Eisenberg said, Murray wrote 30 opinions total. The last of these was People v. Taylor, C088854 (Cal. App. 3rd, filed Feb. 5, 2019). This was a unanimous affirmation of a drug sentence.

Eisenberg’s latest request seeks copies of contracts, invoices and “cumulative fee totals” paid to two law firms, Jones Day and Reed Smith LLP, in relation to Judicial Council in Eisenberg v. Court of Appeal for the Third Appellate District, S269691 (filed July 6, 2021). Eisenberg represented himself in an unsuccessful petition asking the court to order the 3rd District to expedite dozens of criminal appeals.

Reed Smith partner Raymond A. Cardozo represented the Judicial Council and 3rd District Presiding Justice Vance W. Raye. The 3rd District also retained Robert A. Naeve and Nathaniel P. Garrett with Jones Day.

The Judicial Council recently denied a request from several judges seeking to find out how much it had paid Garrett and Naeve to defend it in a case brought by several retired judges who have challenged a cap on the number of days they can participate in a program that allows retired judges to sit temporarily on superior courts. According to an email obtained by the Daily Journal, the agency cited protections in state law relating to ongoing litigation — protections that no longer apply to Eisenberg’s litigation. Mahler v. Judicial Council of California, 2021 DJDAR 7765.

Last year, appellate attorney Michael G. Colantuono floated the idea of allowing California appellate justices to semi-retire. This would allow them to take on a status resembling that of senior judges in the federal system. It would enable them to still hear some cases — and accumulate credit toward retirement — while allowing the governor to appoint a full-time replacement. The partner with Colantuono, Highsmith & Whatley, PC in Grass Valley also suggested Chief Justice Tani G. Cantil-Sakauye could appoint a retired judge to help clear the backlog on the 3rd District.

The Judicial Council’s own annual reports show the 3rd District has been among the slowest in the state to deliver opinions in recent years. Attorneys and litigants have also spoken to the Daily Journal about slow decision times on the court.