Calling the Third District Court of Appeal’s delays in deciding criminal appeals unconstitutional and “a stain on the integrity of California’s appellate process,” appellate attorney Jon Eisenberg today filed in the Supreme Court a writ petition naming as respondents the appellate court itself, that court’s presiding justice, and California’s Judicial Council.
The petition in Eisenberg v. Court of Appeal claims the Third District has for years systematically failed to comply with a statutory mandate giving calendar preference to criminal appeals. It alleges that the appellate court since 2018 “has delayed calendaring at least 278 fully briefed criminal appeals for at least 12 months and as long as 99 months” and that most of those appeals “were calendared subsequent to civil appeals that were fully briefed more recently.”
The petition asks the Supreme Court to order the Third District generally to give calendar preference to all criminal appeals and to promptly calendar 66 specific pending criminal appeals. It also wants the Judicial Council to be ordered “to ensure” the Third District’s compliance with the statutory preference.
Eisenberg himself is the petitioner, saying he has “public interest standing” (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 166). Earlier this year, he — along with former First District Court of Appeal Presiding Justice Gary Strankman — unsuccessfully asked the Supreme Court to transfer several dozen long-pending appeals, both criminal and civil, out of the Third District to other appellate courts. (See here, here, and here.)
Because the Judicial Council is a party to the writ proceeding, Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan — respectively, the chair and a member of the Council — might be recused. (See here.) At this initial stage, when the court is deciding only whether to hear the writ petition on the merits, the recusals wouldn’t require the appointment of pro tem justices unless four of the remaining five justices “cannot agree on a disposition” (section IV.J. of the court’s Internal Operating Practices and Procedures; see pp. 31-32 here). If the court does take the case, then two Court of Appeal justices will take the Chief’s and Justice Corrigan’s places.
Unlike for petitions for review, there is no time limit to rule on the Eisenberg writ petition. (See rules 8.487, 8.512(b).)
[July 7 update:
Malcolm Maclachlan in the Daily Journal: “Presiding judge defends 3rd District against delay complaints”
Cheryl Miller in The Recorder: “Lawyer Sues Appellate Court, Judicial Council Over Criminal Case Delays“]
The Recorder article links to Third District Presiding Justice Vance Raye’s detailed response to the allegations.]
[July 16 update: The Chief Justice and Justice Corrigan recused themselves from the writ proceeding today.]
