In the year 2024, appellate news was not a bore. Much happened on and off the bench, with the end of a presidential term, new rules, and the continued rise of AI. Annual disclaimer: By definition, none of the following is "news," but if you missed any of these stories over the past year, more info is just an Internet search away.
SCOTUS. Our nation's highest court continued to be the focus of attention not just for its momentous decisions (e.g., ending Chevron deference, expanding presidential immunity) but also for ongoing scrutiny of judicial ethics. At the end of 2023, the Court issued an ethics code, and the Senate Judiciary Committee has been conducting an investigation into SCOTUS ethics spanning the past 20 months. This culminated in the release of a 93-page report at the end of 2024 (see An Investigation of the Ethics Challenge at the Supreme Court (Dec. 21, 2024)). There has been little indication that the code has had much effect, and polls continue to show that favorable public views of the court remain at historic lows. Justice Kagan's lead in being the first to cite the court's code when recusing herself in a case has been followed by Justices Jackson and Justice Gorsuch. Meanwhile, Justices continued to engage in conduct drawing attention. Justice Alito got into a flag flap, was surreptitiously recorded at an event, and was criticized (along with Justice Thomas, in particular) for accepting trips and gifts. (Indeed, nearly all of the justices reported receiving valuable gifts or book deals.) President Biden claimed that the high court had "never been as out of kilter," and he proposed changes to the court (including term limits), but legislation along these lines went nowhere.
In addition to ethics, another persistent topic about the high court concerns leaks--not physical leaks, which might be expected at One First Street (designed and constructed from 1928-1935), but information leaks. Once again, similar to the 2022 Dobbs opinion leak, an abortion opinion was prematurely obtained and reported on in 2024 before its official release the next day. This appears to have been a posting error by the Court, in which the opinion appeared prematurely on the Court's website just long enough for Bloomberg Law reporters to snag it before it was taken down. So perhaps that was more of an accident than a leak. But the New York Times seems to have a mole at the Court, given the remarkable articles it published in 2024 containing information that is stunning not just for its content but also for the fact that it is reaching the public at all.
Shifting to the topic of cars and the court, the man who set fire to cars in the SCOTUS employees-only parking lot back in 2020 (seriously damaging two police cars as well as accidentally engulfing himself in flames) was sentenced to 10 years for arson. In July, a D.C. teenager attempting to carjack Justice Sotomayor's bodyguards was shot by U.S. Marshals, arrested, and charged. Notable SCOTUS-related deaths include Solicitors General Charles Fried and Ted Olson, and courtroom sketch artist William Hennessy Jr. On the topic of noteworthy advocates, 2024 saw the first openly transgender lawyer argue before the court.
9th U.S. Circuit Court of Appeals. Closer to home, the 9th Circuit held its annual conference in July in Sacramento (videos available on the court's website). There were very few rumblings about splitting the circuit, and no changes to the court: All 29 seats remained filled, with no new appointments, no judges taking senior status, and no notable passings. The so-called "partisan split" remains unchanged with 16 active judges appointed by Democratic presidents and 13 by Republican presidents. Accounting for the circuit's 23 senior judges, however, the total shifts to 30 Democratic appointees to 22 Republican.
In 2024, the Judicial Council of the Ninth Circuit published four orders captioned In re Complaint of Judicial Misconduct. See 98 F.4th 988, 112 F.4th 1256, 118 F.4th 1246, 119 F.4th 730. These are always interesting, but the most noteworthy Judicial Council order last year was the unpublished order publicly reprimanding and admonishing Alaska District Court Judge Kindred. The Judicial Council concluded that he had created a hostile work environment for his law clerks and had an inappropriately sexualized relationship with one of his law clerks. See In re Complaint of Judicial Misconduct, No. 22-90121 (9th Cir. Jud. Council May 23, 2024), aff'd C.C.D. No. 24-02 (U.S. Jud. Conf., Aug. 22, 2024). The Judicial Council also requested that Judge Kindred voluntarily resign, which he did in July.
Circuit Excitement. Looking more broadly at the federal appellate courts, Judge Newman of the Federal Circuit continued to fight her 2023 suspension, receiving amicus support from six retired federal judges. The Federal Circuit also held its first en banc hearing in a patent appeal in six years. In the 1 Circuit, President Biden appointed two new judges in 2024, making all active judges on that circuit appointees of Democratic presidents--an unusual occurrence in any circuit.
In 2024, President Biden appointed nine circuit judges: two each to the 1st, 4th, 6th, and 7th Circuits, and one to the 11th Circuit. Last year also saw the end of the Biden presidency, meaning that now a final count can be made. Biden made 235 Article III appointments (one more than Trump in his first term), of which 187 were to district courts and 45 were to circuit courts (seven in the 9th), and one Supreme Court Justice. (Cf. Trump appointed 174 district court judges, 54 circuit court judges [10 to the 9th] and three Justices.) Biden broke records regarding diversity, appointing more women and people of color than any other president ever (roughly 60% of his appointments). Biden's appointments managed to flip the 2nd Circuit to a majority of Democratic-appointed judges. (Cf. Trump's appointments flipped the 2nd, 3rd, and 11th.) Nationwide, the number of circuit judges appointed by each party is about equal overall. But nine circuits have a majority of Democratic-appointed judges, and four have more Republican-appointed judges (the 5th through 8th Circuits).
Moving from new (judicial) faces to typefaces, the 7th Circuit (which has a typography guide) chastised a lawyer for using an overly decorative font (Bernhard Modern). AsymaDesign v. CBL & Associates, 103 F.4th 1257 (7th Cir. 2024). The 4th Circuit also issued its Preferred Typefaces For Briefs, expressly approving Century Schoolbook, Georgia and Times New Roman (disapproved by the 7th Circuit), and disapproving Garamond (also disapproved by the D.C. Circuit).
Those interested in AI (i.e., all of us) should take a look at Snell v. United Specialty, 102 F.4th 1208 (11th Cir. 2024) to see how AI can be used in appellate opinions. Also on the tech front, the federal court's PACER efiling system was hit with a phishing scam, and the Los Angeles County Superior Court faced a ransomware attack.
California. Here in the Golden State, 2024 did not see nearly as many appellate judicial transitions as in recent years. There were four retirements: Presiding Justice Rubin (2/5), and Justices Chaney (2/1), Lavin (2/3), and Bedsworth (4/3). (Following this column's convention, #/# means "District/Division.") Two new PJs were appointed: Martinez (2/7) and Hoffstadt (2/5), and six new justices: Wilson (1/1), Feinberg (3d), Stone (2/7), Desautels (1/2), Richardson (2/2) and Michelle Kim (2/1). (Justice Michelle Kim's full name is used to distinguish her from 2/5's Justice Dorothy Kim.) One interesting occurrence in 2024 saw retired justices (Wiseman, Siggins, Kline) serving as pro tems outside their former districts.
Notable passings in 2024 include retired California Supreme Court Justice Panelli, Justices Hollenhorst (4/2) and Sparks (3d), and appellate legends Seth Hufstedler and Ephraim Margolin.
New developments include a new website for California's appellate courts, a markedly updated courtroom in the 2d District (now with better lighting!), a new street address for the 5th District
(Ventura Street became Cesar Chavez Boulevard), and a new voluntary Civil Mediation Program in the 4th District, Division 1.
New rules. On the rules front, there were notable changes in the Federal Rules of Appellate Procedure, Ninth Circuit Rules, and California Rules of Court. Here are a few highlights. Old FRAP 35 and 40 were consolidated into a single rule to address both petitions for rehearing and en banc petitions.
In the 9th, Rule 26.1-1 now requires all parties to file a (new) Form 34 Disclosure Statement within 14 days of an appeal's docketing. Rule 3-4 now shortens the time to file a Mediation Questionnaire from seven days after docketing to five days. Rule 28-1 is clarified to expressly require that all briefs have tables of contents and authorities. Rule 30-1.6, regarding excerpts of record, urges (1) the use of Arabic rather than Roman numerals, and (2) the use of full citations for nonsequential record citations (e.g., "2-ER-51, 2-ER-98" instead of "2-ER-51, 98").
In California, 2024 brought three notable rule changes. CRC 8.504(b)(6) now requires that a petition for review from the summary denial of a writ petition include the underlying trial court order. CRC 8.124(a) now expands the time allowing a respondent to force the use of an appendix to within 10 days after appellant's filing of a record designation (but note that an appellant with a fee waiver cannot be forced to prepare an appendix). Finally, CRC 8.144(b)(6) regarding volumes for appellate records now makes clear that separating materials into volumes of no more than 300 pages is not required for electronic records; a single "volume" can be used provided it is not larger than 25 megabytes. In other words, 25 megs (a lot more than 300 pages) is the new "300 pages."
Also, effective this year, CRC 8.100(g) was fixed to set the deadline for Civil Case Information Statements to after an appeal is docketed (rather than the old rule, which set a deadline that was often impossible to meet because no appellate docket number existed). CRC 8.200(c) now sets a deadline for the filing of an amicus brief if no respondent's brief is filed to 34 days after a respondent's brief could have been filed. CRC 8.320(g) empowers the courts of appeal to adopt local rules to require specific items to be included in the record. And CRC 8.883 allows the use of form briefs in limited civil appeals.
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.(A deep-dive can be found in the annual article by the CLA Litigation Section's Committee on Appellate Courts published in California Litigation Review, usually printed in the Spring.) In Meinhardt v. City of Sunnyvale, 16 Cal.5th 643 (2024) the Supreme Court finally resolved the riddle about what to appeal in administrative mandate cases: the answer is the judgment not the order. In Tricoast Builders v. Fonnegra, 15 Cal.5th 766 (2024), the Supreme Court held that when a party raises the denial of relief from a jury waiver on appeal for the first time on appeal, prejudice is not presumed. A few notable appealability cases include Hernandez v. Sohnen Enterprises, 102 Cal.App.5th 222 (2024) (order requiring parties to withdraw from arbitration is appealable), Simple Avo Paradise Ranch v. So. Cal. Edison, 102 Cal.App.5th 281 (2024) (stipulated judgment was appealable), Blauser v. Dubin, 106 Cal.App.5th 918 (2024) (minute order granting nonsuit not appealable), and Jackson v. Board of Civil Service Commissioners, 99 Cal.App.5th 648 (2024) (order vacating civil servant's suspension and remand to the Board is not appealable); see also Norman v. Ross, 101 Cal.App.5th 617 (2024) (order awarding anti-SLAPP fees appealable with final judgment; also noting expectation of civility on appeal). Of further interest is Lazar v. Bishop (B321752, Dec. 19, 2024), holding that an electronically submitted notice of appeal that is rejected by the superior court "because of counsel's failure to use the proper category in the dropdown menu for the electronic filing" should be deemed timely filed on the submission date because the rejection was for a "technical issue with the electronic filing."
Tune in next month for a review of 9th Circuit decisions from 2024 regarding appellate practice.
Reprinted with permission from Daily Journal.
