Study of 3rd District delays by Judicial Council hasn’t started

In September, the California Supreme Court recommended "the Judicial Council complete an investigation of alleged delays in the 3rd District Court of Appeal's disposition of criminal appeals" within 180 days.

That deadline passed last week with no report. A spokesman for the Judicial Council said the court is awaiting a report from the Commission on Judicial Performance and questioned if the council "even can conduct an investigation."

"To treat the Supreme Court's order that way is remarkable," said Laurie J. Hepler. "It was not a casual suggestion. When the Supreme Court urges the Judicial Council to take action, and six months pass with no decision even to begin, where does that leave California's judicial system?"

Hepler is a partner with Greines, Martin, Stein & Richland LLP in San Francisco, but emphasized she was not speaking for her firm.

The Supreme Court recommended the study in response to a petition by Jon B. Eisenberg. The recently retired appellate attorney has been on a quest for over a year to draw attention to what he says are years of unreasonable delays in the 3rd District. He filed a complaint with the Commission on Judicial Performance in January 2021.

Eisenberg also filed two unsuccessful petitions to the California Supreme Court. The second of these asked the court to order the 3rd District to prioritize dozens of delayed criminal appeals. The court denied Eisenberg's writ on Sept. 15, but included the following text in the denial: "We recommend that within 180 days of this order, the Judicial Council complete an investigation of alleged delays in the Third District Court of Appeal's disposition of criminal appeals and, if appropriate, propose measures that the Judicial Council and the Court of Appeal should employ to address any problems that are identified."

California Chief Justice Tani G. Cantil-Sakauye and Justice Carol A. Corrigan recused themselves because they are members of the Judicial Council, a named defendant in Eisenberg v. Court of Appeal for the Third Appellate District, S269691 (filed July 6, 2021).

Asked about the status of the investigation last week, Judicial Council spokesman Cathal Conneely wrote by email: "Based on what I read in the D.J., the Commission on Judicial Performance is still investigating this matter. The language in the denial of the petition is a recommendation and the Judicial Council has not made any decision about whether it will, or even can conduct an investigation."

Asked Monday whether there was some specific law or convention that prevented the Judicial Council from taking action while a commission investigation is underway, Conneely wrote he had "nothing to add."

Reached on Monday, commission Director-Chief Counsel Gregory Dresser said he did "not know" if the Judicial Council had any rule preventing it from investigating. He declined to comment on Eisenberg's pending complaint.

"I'm considering putting the Judicial Council on my charitable gift list to give them a copy of the California Constitution," said Michael Traynor, a lawyer who has worked on court and law reform issues.

Traynor pointed to "Article 6, Section 6(d) of the California Constitution," which states "To improve the administration of justice the council shall survey judicial business and make recommendations to the courts, make recommendations annually to the Governor and Legislature, adopt rules for court administration, practice and procedure, and perform other functions prescribed by statute."

Article VI lays out rules for the membership and operations of the Judicial Council and the commission. It does not appear to mention any limits on what actions the council can take relating to commission investigations.

Traynor noted that Eisenberg's petition identified dozens of criminal cases. In some cases, years passed from when the case was fully briefed and when the 3rd District delivered a decision. According to attorneys reached by the Daily Journal, in several cases the court threw out sentences or enhancements long after defendants had served them.

"There are serious due process issues here," Traynor said.

"The problem that Eisenberg identified calls for two different responses -- accountability for the past and remediation for the future," said David S. Ettinger, of counsel with Horvitz & Levy. "It would be unfortunate if changes are not forthcoming to prevent the excessive delays from happening again."

"In my 42 years as an appellate attorney, I've never seen anything like this," Eisenberg said by email. "Keep in mind that the chair of the Judicial Council is the Chief Justice -- so it's effectively the Chief Justice who has blown off her own court's recommendation for a study of decisional delay in the Third District."

The Judicial Council's own annual statistical reports show the 3rd District has long been among the slowest and overburdened in the state. Eisenberg also compiled years of statistics from the court. These showed Justice William J. Murray, Jr.'s productivity dropped sharply in late 2017.

Murray retired in January on his 65th birthday. According to an internal email acquired by the Daily Journal, he sent an email to staff that month stating he'd had two strokes in 2017 but "resolved" to stay on the court until he was eligible for full retirement benefits.