Why I Did it the Way I Did it

• Jurisdiction: California,United States
• Author: Written by Jon B. Eisenberg
• Citation: Vol. 36 No. 2
• Publication year: 2023

WHY I DID IT THE WAY I DID IT

GOING PUBLIC ON THE THIRD DISTRICT COURT OF APPEAL

Written by Jon B. Eisenberg^*

In 2021, I complained to the California Commission on Judicial Performance about egregious decisional delays by four justices of the Court of Appeal for the Third Appellate District in Sacramento — Administrative Presiding Justice Vance W. Raye and Associate Justices William J. Murray, Cole Blease, and Harry E. Hull. Cumulatively, during 2018-2021, those four justices allowed hundreds of appeals to languish undecided for periods between two and eight years after the completion of briefing, with many instances where criminal sentences were reversed or reduced after they had been fully served.

In 2022, the CJP took disciplinary action against Justice Raye, forcing him to retire and publicly admonishing him. The CJP never dealt with Justice Blease, instead simply closing his case after he passed away. As of this writing, the CJP has advised me that it has not yet reached a decision about Justice Murray, who voluntarily retired, or Justice Hull, who continues to sit on the Third District bench.

I went public with my CJP complaint as soon as I submitted it, sharing the complaint and a limited amount of information about the CJP's ensuing investigation with several newspapers, which gave the matter extensive coverage. One member of the appellate bar wondered in print why I didn't first attempt to resolve the problem differently, in a less confrontational way, and why I chose to go public despite the CJP's confidentiality policy. I now explain why I did it the way I did it.

BACKCHANNELS

To begin with, I did attempt to resolve the problem differently — in 2018, and again shortly before I submitted the complaint. My efforts went nowhere.

As the author of a treatise on California appellate practice, I am a longtime observer of our state's appellate process. During 2013-2017, I perceived a gradual trend of increasing decisional delays in the Third District, the Fifth District in Fresno, and two divisions of the First District in San Francisco. In 2018, I organized a panel discussion of appellate decisional delay for a meeting of the California Academy of Appellate Lawyers. The panelists I chose included First District Justice Jim Humes and Third District Justice Jonathan Renner. I circulated written materials to the panelists, including a chart I had prepared analyzing statewide appellate decisional delays during 2013-2016 as compared with 2001-2013. The chart showed that from 2001-2013 to 2013-2016, decisional delays had increased by 73% in the First District, 27% in the Third District, and 86% in the Fifth District. My message wasn't subtle. I hoped it would cause something to be done about the problem.

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In late December 2020, a crescendo of exasperation with the Third District unfolded in my email inbox. This prompted me to update my research. I found that since 2018, although there had been substantial delay reduction in the First and Fifth Districts, decisional delays in the Third District had gotten considerably worse. Searching Westlaw and the Third District's online docket, I spotted dozens of recently decided Third District appeals where there had been delays between 12 and 74 months from the completion of briefing to submission for decision.

I rounded up a few colleagues in the...