Highs and lows: the 2023 appellate year in review

The appellate world is usually a reserved, introspective space. The undisputed height of appellate jocularity might still be 2020's toilet flush heard during a remote SCOTUS oral argument or 2021's "I am not a cat" argument, but 2023 served up a solid appellate knee-slapper when, in February, SCOTUS police had to escort several children out of the courtroom after they fell conspicuously asleep. For better or worse, however, appellate news has gotten a lot more serious and a lot less whimsical lately.

Annual disclaimer: Strictly speaking, none of what's to follow is news (to be news, the stories should be at least somewhat new), but if you missed any of these stories over the past year, more info is just an Internet search away.

Ethics

The pandemic is no longer the top story. Instead, the word on everyone's lips - and not just in appellate nerd circles - is "ethics," as in judicial ethics. That so much focus is on the integrity of the judicial system itself, rather than on the important cases being decided and law being made by appellate courts, is ... disappointing.

The year started off with reported ethics scandals about buying access to the Court's inner circle, and progressed to heated coverage of stories involving gifts, travel, publishing deals, and even the justices' spouses. The Chair of the Senate Judiciary Committee invited the Chief Justice to testify before a panel on SCOTUS ethics. That invitation was declined. Also at the start of the year, the Court issued a Report and Statement Concerning the 2022 Leak Investigation - calling the leak "one of the worst breaches of trust" in the Court's history. But the outcome of the report was ... disappointingly inconclusive about who done it.

Meanwhile the call for a SCOTUS ethics code reached a fever pitch. Unexpectedly, the Court responded by actually issuing a Code of Conduct for Justices in November. That Code was ... disappointing, at least to many Court-watchers who had hoped for something with more teeth. Also in November, a new free online public database debuted, teasing us with the promise of transparency into federal judges' financial disclosures. But recent reports are ... disappointing, in that over 40% of reports haven't been posted yet. See Judges' Financial Disclosures Missing in Big Business Courts, Law360 (Nov. 29, 2023).

SCOTUS endings and beginnings

In December, groundbreaking retired Justice Sandra Day O'Connor died. On the positive side, Justice Jackson's active questioning style has contributed to oral arguments getting longer and the U.S. Reports finally figured out how to release preliminary citations to opinions (putting an end to the crazy six-year wait to get official citations for SCOTUS opinions).

Circuit excitement

At the circuit level, the big story of 2023 was the fight between the Federal Circuit and Judge Pauline Newman over whether the 96-year-old judge was still fit to hear cases. That this dispute arose at all, let alone that it has become so contentious is ... disappointing.

Closer to home, here in the 9th Circuit, Judges William Fletcher, Margaret McKeown, Andrew Hurwitz and Sidney Thomas took senior status, and Judge Paul Watford left the court to return to private practice. New Judges Anthony Johnstone and Ana de Alba were sworn in, so all 29 seats on the court are filled. Biden has appointed 8 judges to the court; Trump appointed 10. The court held its Judicial Conference in Portland, which featured Justice Kagan. Notable passings included retired Judges Alfred Goodwin and Edward Leavy.

California appellate news

On the state side, the California Supreme Court started off the year with a new Chief Justice, Patricia Guerrero, and Associate Justice, Kelli Evans. The Supreme Court came back to Los Angeles to hear cases for the first time in four years. In the Courts of Appeal, Tracie Brown (1st Dist. Div. 4), Laurie Earl (3d Dist.), and Brian Currey (2d/4) were promoted to Presiding Justices. Retiring from the bench were Presiding Justices Nora Manella (2d/4) and Dennis Perluss (2d/7), and Justices Thomas Willhite (2d/4), Stuart Pollak (1st/4), Marsha Slough (4th/2) and Sandra Margulies (1/1). Thirteen new Justices were appointed over the past year (deep breath): Dan Bromberg (6th), Tari Cody (2d/6), Audra Mori (2d/4), Julia Kelety (4th/1), Danny Chou (1st/5), Rashida Adams (2d/3), Jose Castillo (4th/1), Gonzalo Martinez (2d/7), David Rubin (4th/1), Helen Zukin (2d/4), Martha Gooding (4th/3), Monique Wilson (1/1), and Aimee Feinberg (3). Phew! The upshot is that (finally!) there are very few vacancies on the Court of Appeal. The Second and Fourth Districts also got new clerks, Eva McClintock and Brandon Henson.

The past year saw some notable losses as well: retired Justices Norm Epstein (PJ 2/4), Robert Devich (2/1), and Harry Brauer (a founding Justice of the 6th District) all died. And the appellate bar lost the legendary Gideon Kanner, a founder and inaugural president of the California Academy of Appellate Lawyers. Another important "death" was that of Verizon's BlueJeans platform, which the appellate courts were using for remote oral arguments. The courts have switched to Zoom, a development that is ... surprisingly not disappointing.

New rules.

This year, some noteworthy rules took effect, including the new Juneteenth state and federal holiday. At SCOTUS, Rule 37 was changed to no longer require consent for the filing of amicus briefs, meaning that motions to file amicus briefs are now history. Ninth Circuit Rule 32-1(f) provides guidance regarding how to count words in visual images used in briefs. The Ninth Circuit also announced that it expects counsel to appear in-person for arguments starting in 2024 and that it intends to move cases along faster (i.e., be less generous with briefing extensions).

The California Supreme Court began publicly posting its Matters Scheduled for Conference, meaning that the general public (in reality, "the lawyers involved") can finally get a little advance notice about what the Court will be considering at its usual Wednesday conferences. In the past, such a preview was afforded only to members of the legal press. But why should the press know what's happening in a case before the litigants or counsel?

There are always constant tweaks to the appellate rules, but the most notable from 2023 are: California Rule of Court 8.124 was amended to allow appendices to be filed before the opening brief, and to change the triggering time for a respondent to force an appendix to 10 days after the appellant's record designation (instead of 10 days after the notice of appeal). Rule 8.504(b) was amended to require that petitions for review from summary denials of writ petitions include the trial court order that was the subject of the writ petition. Several districts also updated their oral argument protocols to address the post-covid transition.

Also of note is the so-called "Eisenberg Rule," Rule of Court 10.1014, which empowers anyone to submit a "contention" (e.g., by emailing AppellateRule10.1014@jud.ca.gov) that an Administrative Presiding Justice or Presiding Justice is failing to properly manage an important administrative matter.

Appellate bias?

In March, the Chief Justice appointed members to a new Supreme Court and Appellate Court Bias Prevention Committee, chaired by Justice Martin Jenkins. Pursuant to Judicial Standard of Administration 10.20, this committee aims to support the integrity and impartiality of the judicial system and promote an appellate court environment free of bias and the appearance of bias.

And now, some law.

Each year naturally brings a new batch of opinions developing points of appellate practice. The following is just a snapshot of a few cases of particular appellate interest, but a good deep-dive can be found in the annual article by the CLA Litigation Section's Committee on Appellate Courts published in California Litigation Review.

SCOTUS gifted us with two cases. First, we received Coinbase v. Bielski, 599 U.S. 736 (2023) [see, isn't it great that we have an official citation already!], effecting an automatic stay in federal court when orders denying arbitration are appealed. (But note California S.B. 365, effective Jan. 1, 2024, for a new change to California state law in this area.) Second, following Dupree v. Younger, 598 U.S. 729 (2023), we now know that purely legal issues resolved at summary judgment are preserved for appeal without the need for reasserting them post-trial.

The Ninth Circuit gave us Habelt v. iRhythm Techs., 83 F.4th 1162 (9th Cir. 2023) (functionally uninvolved named plaintiff lacked standing); Moe v. Geico, 73 F.4th 757 (9th Cir. 2023) (appellate court can sua sponte raise issue of CAFA jurisdiction); Boshears v. PeopleConnect, 76 F.4th 858 (9th Cir. 2023) (combining denials of multiple motions in single order does not change rules for reviewability); and a pair of collateral order doctrine opinions: U.S. v. PetroSaudi Oil Servs., 70 F.4th 1199 (9th Cir. 2023) and Martinez v. ZoomInfo Techs., 82 F.4th 785 (9th Cir. 2023); and see Dominguez v. Better Mortgage Corp., _ F.4th _ (9th Cir. 2023) (appellate tolling motion).

In California, practitioners eagerly anticipated a ruling from the Supreme Court in the Pacific Fertility Cases, S275134, which would resolve the longstanding split of authority on whether a petition for writ of mandate is the exclusive means of challenging an order approving or denying a good faith settlement. But the case settled and was dismissed! This was, for appellate nerds, ... disappointing.

Some other 2023 California cases of appellate-practice note include Westmoreland v. Kindercare Educ., 90 Cal.App.5th 967; Longobardo v. Avco Corp., 93 Cal.App.5th 429; Adanna Car Wash v. Gomez, 87 Cal.App.5th 642; Feliz v. Orange County, 91 Cal.App.5th 927; and the year's must-read opinion, Snoeck v. ExaktTime Innovations, 96 Cal.App.5th 908 - about what? Ethics, of course.