Appellate delay: the Judicial Council moves forward

Now that the Judicial Council’s Appellate Caseflow Workgroup is moving forward with its investigation of decisional delay in the California Courts of Appeal, the Workgroup must address two points.

First, the Workgroup must examine the history of the 3rd District’s delay crisis: when it began; how it began; with whom it began; how it worsened over the years; what a handful of 3rd District justices did internally during 2018–2020 in their unsuccessful efforts to address the problem; how widely the problem was known outside the 3rd District; and who knew (directly or indirectly) about Justice William Murray’s debilitating strokes in 2017 and his plan to forestall disability retirement until he’d maximized his pension benefits. The recent order by the Commission on Judicial Performance publicly admonishing Administrative Presiding Justice Vance Raye is the product of a negotiated settlement agreement, a compromise that does not tell the whole story. To prevent such decisional delay from recurring in the 3rd District or elsewhere, the Workgroup needs to fully understand what actually happened in the 3rd District.

Second, the Workgroup must consider remedial amendments to the California Rules of Court. Two candidates are Rules 8.240 and 10.52.

Rule 8.240 addresses appellate calendar preference. It should be amended to require criminal, juvenile, and other statutorily-preferenced appeals to be placed on the next available oral argument calendar promptly after the completion of briefing – no later than, say, four to six months hence – subject to continuance in extraordinary cases to a specified later date as required by the ends of justice.

Rule 10.52 addresses the duties of the Administrative Presiding Justices Advisory Committee, which is comprised of the APJs for California’s six appellate districts. It should be amended to require the Advisory Committee to submit annual district-specific workload reports to the California Supreme Court for the purpose of assisting the Chief Justice to equalize workloads by transferring cases among the various districts and divisions of the Courts of Appeal – a power conferred on the Supreme Court by Article VI, section 6(e) of the California Constitution and Rule 10.1000(a)(1)(C) of the California Rules of Court regardless of whether an APJ requests such transfer. Due to quirks in how the Legislature has authorized additional appellate justice positions statewide over the decades, as well as shifts in the populations of California’s 58 counties, workloads are currently spread unevenly among California’s appellate courts. The 3rd District and Division 2 of the 4th District are disproportionately burdened and need a break.

This idea of annually equalizing appellate court workloads is not new. It was first proposed in the Report of the Appellate Process Task Force – the Strankman Commission – in 2000. Its time has come – indeed, is past due.

Throughout the course of my 16-month effort to expose and remedy the 3rd District’s delay crisis, I did what I felt had to be done to get something meaningful accomplished. I believed from the outset, and still believe, that anything short of a full public airing would not have gotten the job done. I took my cue from Louis Brandeis’s 1913 aphorism on publicity – that “sunlight is said to be the best of disinfectants.”

It is a common misconception that someone who submits a complaint to the Commission on Judicial Performance must maintain confidentiality of the complaint and any ensuing CJP investigation. Nothing in the CJP’s rules requires such confidentiality. The CJP itself follows a self-imposed policy of confidentiality, but that policy does not bind the complainant. Courts and commentators have explained that a rule of a judicial oversight agency purporting to prohibit public disclosure by a complainant violates the 1st Amendment and is inimical to fostering public confidence in a self-policing judicial system. That’s why I was free to go public.

The baton is now in the hands of the Appellate Caseflow Workgroup. The legal community watches and awaits.