Benjamin Shatz  0:03 
Judge Schiavelli used to always say, you know, every time a judge makes a decision, it makes one temporary friend and one permanent and welcome to

Announcer  0:10 
the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:23 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:25  
And I'm Tim Kowal both Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, please recommend this podcast to a colleague if you find it useful,

Jeff Lewis  0:40  
and send it to your opposing counsel if you find it unhelpful. Before we jump into this week's discussion, we want to thank casetext for sponsoring our podcast he's Texas is a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. Casetext relied on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments in March 2023. Casetext launch co counsel, the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy listeners of the podcast enjoy a special discount on case Tech's basic research at casetext.com/calp. That's casetext.com/calp. And as a bonus, that CO counsel program does not make up cases when it spits out a report for you, which is a nice benefit.

Tim Kowal  1:28 
Yeah, that is a feature very much in demand these days. All right, Jeff. Well, we're very happy to welcome back to the show ben Schatz. Ben is a certified specialist in appellate law. He has handled hundreds of civil appeals writs and petitions in courts, including the US Supreme Court, the US courts of appeals and California Supreme Court in California appellate courts been served as law clerk to the Honorable Robert J. Johnson, US magistrate judge for the District of Nevada. Ben publishes everywhere that California appellate law and news reviews are sold including California litigation, where he serves as editor in chief and the daily journal where he hosts his regular column exceptionally appealing. And Ben is the proprietor of the Southern California appellate news blog, a key tributary of legal news and views to this podcast not to mention to judges and attorneys throughout the state and beyond. Ben is also a member and Secretary of the California Academy of appellate lawyers a subject that we talked about during Ben's last appearance on the podcast. And as relevant to today's discussion. Ben now serves as a member of the California Supreme Court and Courts of Appeal bias prevention committee, chaired by California Supreme Court appellate Associate Justice Martin Jenkins. Ben, welcome back to the podcast.

Benjamin Shatz  2:41  
Thanks, guys. I'm delighted to be here. And yes, I wanted to speak to you on the topic of judicial bias in light of my recent appointment to the new committee, and the appointment was by the by our new Chief Justice. And if you don't mind, I'll just dive right in.

Tim Kowal  2:58 
Yeah, congratulations on that appointment ban. I do. And please do jump right in. But I I'll just give you this prompt. You know, I understand that the purpose of the bias prevention committee is to eliminate bias from our courtrooms. But you shared with me that there's an article recently about a spike in judicial conduct complaints across the country. But I believe that applies to California as well tell us if you would, in your introductory comments, introducing our listeners to the committee. Tell us about that spike and what the committee aims to do about it.

Benjamin Shatz  3:27 
Exactly. So we'll build up to the committee's mission and who's on it and all of that, but as background, I'll point out that last Monday, so just you know, a week ago, I am on law.com, there was an article titled Judicial Conduct complaints spiked across the country in 2022. And that article talked about how Judicial Conduct bodies all over the country received record numbers of misconduct allegations against judges last year. Now, you know, why is that? I don't maybe there's speculation that maybe this flood of misconduct allegations reflects a, a diminishing trust among the public and the bar in the country's judicial systems generally. But regardless of why the article cites surveys from the National Center for state courts, showing that the percentage of registered voters who said that they were confident in state courts fell down to 60% in 2022,

Tim Kowal  4:24 
to 60%, from what point? Well, when

Benjamin Shatz  4:27 
they did the survey, I guess in 2012, a decade before it was at 67%. Okay, oh, you know, maybe a 7% drop isn't that much. It's something and in particular, statistically detectable we'd say exactly, and bias complaints are up over 4%. Now, the article also cited, the California in particular, and the California Law Commission on Judicial performance issues an annual report, and the 2022 annual report is available online, and it details over 1200 compliance In 2022, again,

Tim Kowal  5:02  
under complaints are we're just talking about California now.

Benjamin Shatz  5:05 
Yes, California state judges, 1200 complaints, and 2022, which I think qualifies as a spike from wherever they were before. But in particular, the The report lists sort of in David Letterman style, the top 10 types of conduct that results in judicial discipline. So now we're focusing on not just complaints, but actual discipline against judges, in 2022. That's on page 18 of that report.

Tim Kowal  5:33 
Okay, are these all different types, these top 10 types of bias? Or is this broader than bias?

Benjamin Shatz  5:37 
This is broader. This is just you know, what got judges actually in trouble and 2022. Number one, of course, is demeanor and decorum, right things that judges do in courtrooms that count as demeanor decorum violations. But number two is bias, or appearance of bias. And specifically, bias or appearance of bias not directed towards a particular class. So I think that that sort of bias is when somebody just says, well, you're biased towards my opponent, you like my opponent more than me, I think that's what that is. Because number three on the list is decisional. Delay. So that's a different topic. And I imagine you've talked about that on this podcast as well. In particular, if you look at pages 25 to 27, of the report, there is a section there about the public admonishment of justice Vance Re. So you know, if you're an appellate person, you probably want to read those pages, just about decisional delay, but then dropping down the list to number 10. We're back to bias and appearance of bias again, and this time, it's towards a particular class, which I think is something like, you know, maybe pro law enforcement or favoritism for certain attorneys or appearance of bias about ethnicity and so forth. So, you know, I mentioned this by background merely to show that nationally and locally here in California, bias statistics to the extent that they are kept are up. And so, you know, I suppose the next question is, well, why would we even care about this bias or perceived bias? Why Why bother talking about it?

Tim Kowal  7:08 
Before we move on to that I could just clarify, I was a little surprised when you mentioned those two different types of bias, but one, that's number two on the list, which is bias, not to a particular class, top 10 bias, or number 10, on the list was bias toward a particular class. That's the number 10 spot is the one we normally think of race, gender, ethnicity, religion type bias, but the actual higher ranked bias, the more proliferative bias is, you just like the other side, you'll like my opponent better than me, that's a much higher rank, more prevalent type of bias than the traditional type of race, gender, class, ethnicity, type of bias.

Benjamin Shatz  7:43  
Yeah, it's an odd distinction. I'm not sure you know exactly how that came about, and why the statistics are kept that way. And what it means, in particular, because I haven't made a great study of judicial discipline, but perhaps somebody at the Cgap can peel that down, you know, what caught my attention was simply that bias gets two notes, you know, and in the top 10 biases in there twice. So, you know, it seems reasonable to talk about bias. And then, of course, there's just the obvious point that, you know, courts are supposed to do their job, and fairness is the touchstone. Now, you might say, Well, shouldn't courts be doing their job without any concern about public perception, you know, who cares about reports or what people think about the courts. But of course, if the courts are actually biased, then they're not actually doing their job of providing fair decision making. And in particular, the courts role is to produce an outcome that even the losing parties will abide by. Absolutely, yeah. And to get to that result, there has to be some basic degree of respect for and trust in the decision maker and the process. Yeah, and this is why the ethical rules that exist, always say that judges should not hear cases where there is merely an appearance of bias, you know, it's not just you know, is there bias, but does it look like there might be bias? And so, you know, that appearance of is a particularly important part of all of this?

Tim Kowal  9:11  
Yeah. Well, going back to that, and again, that the number two spot on the list the bias, not to particular class, which is bias that the judge liked the other party better. It makes me think of one thing that always stood with me when I was studying for the appellate certification exam, and I read the rhetoric guide and civil writs and appeals from cover to cover. The very first I think page of it says that the most important thing to remember whenever you're evaluating an appeal is ask yourself, did the right party win, because that's what the appellate panel is going to ask if the right party won, then the panel is going to be loath to reverse and if the right party didn't win, then this I'm not quoting of course from the rudder guide, but there's more likely to be an incentive to try to find a way to reverse and I wonder if that type of thing and of course this is I'm not impugning this advice, the rudder guide. But what if this thinking is well have, you know, the other side just thought that the the other side deserved to win and twisted the law to get there.

Benjamin Shatz  10:05  
But it's interesting to note that that number two sort of bias represents the second most common basis of actual discipline. So it's not just people complaining, it's that there was some investigation, and there was something to it. Because of course, every loser is going to think all the other, you know, the judge just liked my opponent for for some reason, and they were always out to get me sort of thing. And, as my former friend and mentor, the late George Chevelle, he really used to always say, you know, every time a judge makes a decision, he makes one temporary friend and one permanent. And so there's always that, but you know, we're peeling this back deeper. And to get there to sort of build up to where we are. today. I want to go back and do a little bit of quick history on bias prevention in the courts. Because for a long time, there was never any discussion about it at all, you know, the courts were the courts, and nobody would dare question anything that they would be be doing. And I want to start the story here in 1982 1982, the New Jersey Supreme Court formed a gender bias Task Force, which was a new amazing thing at the time. Now after that, over time, 40 other states and the federal courts all formed similar task forces. But it's interesting to note that the the, the formal discussion of bias begins with gender bias. That's where it starts, because you suddenly have lots of women appearing as lawyers in the courtroom. And they're all complaining that they're not being treated in the same way as their male counterparts. So now, in 1987, here in California, the Judicial Council adopts California standards of judicial administration, section one. So number one is addressing bias in court proceedings. And there's a general statement there on a judge's responsibility to prohibit bias. And that's language we'll come back to so it imposed on judges duty to ensure that courtroom proceedings, and we'll focus on that too, are conducted in a fair and impartial manner, and that the courts are to refrain from any conduct and prohibit others in the courtroom from engaging in conduct that this exhibits any bias and to ensure that all decisions are free of bias. So we have these judicial standards of administration, which are generally you can find them in the back of your rules of court, if you still actually have a printed book of the rules of court, or even in the online version, you know, there's 10 titles of rules. And then there are the standards that probably lawyers never look at, because they're directed towards the courts themselves. But there's some a little bit of gold in there. So look at those judicial standards of administration. There's even a title chapter in there just about the appellate courts. But the only thing in there is a standard 8.2 I think that says something like it's okay to do memorandum decision. But the standard one, as it was back then in 1987, applies to all courts. And that's sort of a basic statement that you would all assume everyone would assume, should be part of what how courts operate. And so in 1987, and then 1988, two successive Chief Justices, Roseburg and Malcolm Lucas, appointed a judicial council advisory committees on gender bias in the courts. So again, going back to this notion of even in the 80s. Let's look at gender bias. Similarly, in 1988, the Conference of Chief Justice's adopted that rep resolution emphasizing a concern that all participants in the judicial system be treated fairly. And they urge that every chief justice in every state established task forces devoted to the study of gender bias again, but also this time they phrased it as Minority Concerns as they relate to the judicial system, probably not the language we would use today. But this was considered cutting edge back then.

Tim Kowal  13:51  
Right? Yeah. So by 1988, we're broadening it from eliminating gender bias to addressing other forms.

Benjamin Shatz  13:57 
At least that's the push from the National Council. So again, coming back to California 1990. The gender bias finally issues its report, it publishes a achieving equal justice for women and men in the California courts a draft report of the judicial Advisory Committee on gender bias that came out in March 1990. And the Judicial Council then adopts a comprehensive set of recommendations to ensure gender fairness in the courts. Similarly, in 1992, so we're inching forward in time, California Judges Association conducts a comprehensive review of the code of judicial ethics and issues canons, three, B, five and six, setting forth affirmative duties on judges to perform all their judicial duties without bias or prejudice, and to require everybody under the judges direction to refrain from conduct so it's spreading to you know, it's not just for judges, but it's for clerks, or bailiffs or you know, anybody else that the judge can control.

Tim Kowal  14:55 
And just to flag for our listeners here after we do this city bus tour through the hill. street bias prevention. We're going to talk about a few case studies and examples of the types of bias that are being addressed by these measures. But you can see some actual, you know, what are we talking about? What are the actual types of bias that's occurring in the courtrooms? We'll see that in just a little bit later in the conversation.

Benjamin Shatz  15:15 
So now we're up to 1993. And again, back to the conference of Chief Justice's, they urged further efforts for equal justice by encouraging task forces to remedy any discrimination, and to implement the recommendations of any of the task force studies that have come before. Also in 1993. Here in California, there was a commission called the Commission on the Future of California courts. And that commission within its report, which was titled justice in the balance 2020, so they were looking far into the future 2020 issued this report, and they they designated gender fairness as a high priority, again, back in 1993. Now, also, in 93, something interesting happened, the Judicial Council amends standard one that I mentioned, to add a recommendation that all courts are supposed to create local bias committees, and to adopt informal complaint resolution procedures. So having recognized a problem, they say, Okay, well, the courts need to do something about every court should be doing something about this, and they should have a process in place to allow people to report on it. In 1994,

Tim Kowal  16:25  
I'm sorry, this is directed to the California Superior Courts or district court,

Benjamin Shatz  16:29  
all courts, these are judicial standards for the judicial system. So you know, go to your favorite court. Now, because they're supposed to be local committees, you know, presumably, it's more local based, you know, the Supreme Court covers the whole state. But the idea is that the courts are supposed to be doing these general standards,

Tim Kowal  16:47 
was there funding available for these committees? And for these procedures?

Benjamin Shatz  16:50  
I would doubt it. Right. I don't think there was anything particular. I mean, again, these are recommendations, right that were made, you know, so the top down says, Hey, here's an idea people should do this. I'll also mentioned in 1994, a report came out called the effects of gender in the federal courts, the final report of the Ninth Circuit, gender bias Task Force. And you can see that in the Southern California Law Review, volume 6790 94, where they talk about what's happening in federal courts. And there's a reference there too, but there were reports by judges speaking to their own secretaries in appropriate ways, you know, calling courtroom deputies, my girl, things like that. So you know, the gender bias is still at the forefront than and I remember practicing back then. And I remember reading about how there were judges in California that would have sort of unfair sartorial standards, right. You know, like women lawyers were not supposed to wear pant suits or something. I mean, they were things definitely happening everywhere. Let's move up to 1995. That Futures Commission that I mentioned, finally issues, its recommendations about gender, fairness, and they have their the final report comes out in April 1995. In 1997, the Judicial Council amend the standard one again, and this time they broaden it, they say that bias should is prohibited on the basis of disability, gender, race, religion, ethnicity, sexual orientation. So we're entering the realm of not just looking at gender bias, but trying to encapsulate all of these these categories.

Tim Kowal  18:27 
And this is the first expression of that since you mentioned, and this whole thing got kicked off in 1982, with the New Jersey Supreme Court, gender bias Task Force, and then five years later, it includes the term minority bias. And now here we are in 1997, to finally see the more modern expression of disability, gender, race, religion, ethnicity and sexual orientation.

Benjamin Shatz  18:46 
Well, at least a start, right. I mean, I think that what we've got now is will would go far beyond all of that as well. But yes, it's broadening. You know, arguably, you could say, Well, that should have been baked in to begin with. But it's always better to spell these things out. Right, especially with the focus on all the gender attention, maybe these other things weren't weren't getting the attention that they deserved, as well. So in 2007, the standard number one that we've been talking about gets re numbered, and it now becomes standard 10 point 20, which is where it is today. Now, it's not substantively amended, but it's moved. So that, you know, if you're somebody who believes like, well, standard one should be the most important one. You might wonder, you know, well, why did we get bumped to Section 10. But that's how it was done. So if you're looking for this following along, you now need to jump to Section 10 point 20 to see where we are. We'll jump ahead again far. So if that was 2007, let's go to June of 2020. Okay, in June of 2020, all kinds of things were going on in this country. But if you're an appellate lawyer, one thing other than the pandemic you might have been paying attention to was the Commission on Judicial performance. Order justice Jeffrey Johnson removed for misconduct, based on his disrespect. for misconduct towards women, there were 17 days of testimony in August through October of 2019, with over 100 witnesses. So it was a big deal on something like that had not happened, I think the history of California appellate practice,

Tim Kowal  20:14  
and it's staggering that there are over 100 witnesses, this happened over a very long amount of time. Yeah,

Benjamin Shatz  20:21  
that there's very deep documentation on that whole event. But I just mentioned it as one thing that's relevant to this history, as we're telling and you know, it's interesting, this goes back decades to hey, let's do pay attention to gender. And yet nothing really happens at least there's no discipline at an appellate level for something like this up until till 2020. The other thing, of course, that happened in June of 2020, is that the California Supreme Court, as did many other Supreme Courts in the country, issued statements about the the George Floyd murder. And the California Supreme Court issues, this statement on equality and inclusion and court fairness, and it's signed by all the justices. And it says, you know, we condemn racism and all its form, conscious, unconscious, institutional, structural, historic, and continuing. And it asserts that the fundamental mission of the courts is to ensure equal justice under law for every single person. So you know, here we have a statement just issued by the Supreme Court in light of current events, and so people are paying a lot of attention to this. And what happens? Well, the legal press starts looking into it like, well, so Yeah, where are we, after all of these reports and recommendations, decade after decade, the California Employment Lawyers Association, comes out with a report that says Guess what, nearly all courts are not complying with section 1020. And the daily journal starts issuing these stories in the paper, saying that well, here's you know, there are 22 courts that don't have those local committees that were recommended by section 1020. So there's an article called 22 counties not complying with bias committee recommendation. And then in July of 2020, there was another article bias committees are enigmas attorneys say, basically reporting like, oh, wait, are these things supposed to exist? I don't know anything about them. And then there was another that was an article in August, then there was another article in the court leaders developing judicial guidelines. Right. So anyway, there was a lot being published around this time, because there was attention on this topic. But what was coming out was, wait a minute, there really isn't anything out there. You know, how are we supposed to address bias? And where are these committees that were recommended years ago? Nobody seems to be able to find them. So in November of 2012,

Tim Kowal  22:36  
Ben, if I could just break in a moment there. And speaking of that, that these bias committees are enigmas when the Supreme Court made its statement about George Floyd in June of 2020. Was that made in conjunction with the bias committee, or courts acting separate from the bias committees or any coordination about the public relation message for lack of a better term from the judiciary,

Benjamin Shatz  22:57 
that message came from the Supreme Court itself? And I don't think that there was any committee involvement. In fact, that was probably one of the problems is that there weren't any committees. It was just something that the court itself recognized it should do. And I think a number of the Courts of Appeal also issued similar statements, you know, in endorsing or following what the Supreme Court had had done. So that takes us to November of 2020. And to your point, the Chief Justice at that point, at that point, appoints what was called the workgroup to enhance administrative standards addressing bias and court proceedings. So there's maybe a committee right a workgroup was created that was supposed to identify improvements and amendments to Section 1020. And that was chaired by the fifths PJ Brad Hill, and then judge Stacy bowl where you're a workgroup members on that included justice Karen Fujisaki, presiding judge, Joyce Hendricks, from Humboldt County lafc, Judge Kevin Brasil, San Bernardino, court executive officer, Nancy Eberhardt, and some private attorneys, Rachel Hill and Gretchen Nelson. So this workgroup is created. And about a year later in 2021, the workgroup issues recommendations. And the recommendations are pretty interesting. So first of all, there are a few I want to focus on. One is that they come out and say, you know, the goal for the courts should be to prevent bias, not just prohibit bias, because that was the original language. So they're trying to get it to be more active. Right. And then also, that the scope of this should be expanded to all court interactions, because again, the earlier language was things that happen in the courtroom. And there can be expressions of bias outside of the courtroom, if the court clerk isn't taking your documents or is being rude to the messengers or lawyers or litigants who are trying to file things or if other people who work for the court related to the court are acting in a biased way. That's a problem too. So it's expanded to all court interactions. However broadly, you want to define that And then of course, they updated the list of protected classifications. Because as we just went over, you know, it's expanded. But if you were to do that today, which has been done, it's going to be a lot longer, there are more more forms of protected class. And then they turn to the the idea of these local or regional bias committees, which for the most part didn't even exist. And the question is, What should their optimal role be, you know, what is it that they should be doing, assuming they can even get off the ground, and more particular than the task force says, We have to ensure that court users, which are lawyers, the public litigants can access information about how they can even complain about court employees and judicial officers? Because it's not easy, right? If you may think, Oh, well, you know, where do I click here to complain about a judge? I'm not aware of a link for that. I mean, and there's somebody a member of the public and I realize, oh, well, there's something called the Commission on Judicial performance. And maybe if I find them on the website, I might be able to find a way to do something. So the recommendation was that there's got to be some way to make this easier and make it known and available. So those were the recommendations of the work group, which now brings us to 2023. This year, Chief Justice Guerrero then appoints the Supreme Court and Courts of Appeal bias prevention committee. Yeah, not just a workgroup, but an actual committee. And the membership on this committee is composed of justices from the Supreme Court and each court of appeal district and accord administrator and attorneys from each district that are practicing in the appellate court. So basically, their their seven justices, one Supreme Court Justice and appellate clerk, and their seven lawyers, and then I'm going to, I'll name them in a moment plus PJ Hill and PJ McConnell, are advisors to this committee. But so who's on the committee, this committee is chaired by Supreme Court Justice Martin Jenkins, and on the committee, you have justice Helen Bendix, Justice Stacey bull where Yuri, who at this point is now now a justice, justice doe justice Karen Fujisaki, Justice Lee justice recinto Pena, and then the second District Court of Appeal executive officer clerk, Eva McClintock. And then on the on the practitioner side, Deputy Attorney General's Ahmed Kurla. Car Deputy Attorney General Charles Ragland, the central cap Executive Director, Laurel Thorpe. And then some private attorneys Charles severe Russia gurgi Shields, Rupa Singh and me. So there's your cross section of the appellate bar. And the appellate justice is trying to cover the whole state and covering different practice areas to get together to be on this committee. And the appointment letters were issued in in March. And there's been one in person meeting of this group. One of the things that came out of that meeting was a mission statement. So I want to read the the mission statement, that is pursuant to standards of judicial administration standard 1020 10 dot 20. The Supreme Court and the courts of appeal bias prevention 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. So there you have a mission statement. And the committee, of course, is going to try to focus and will focus on how bias manifests itself in all court interactions with the goal of identifying some practical objectives and Mesa programs aimed at preventing bias in the appellate courts.

Jeff Lewis  28:33 
Hey, Ben, can I ask? So is the goal at the end of the process? I have some recommendations that will like go up to the Supreme Court. What is the end product of this committee?

Benjamin Shatz  28:43  
Well, that's a great question. And I mean, it's not a workforce or a task force, like like the original one. It's not like, get together and come up with some ideas, although that's always true of every committee. But I think, you know, this committee is supposed to, to do that, and more to the extent as possible. So, you know, in some sense, yes, I suppose, you know, we're going to try to come up with ideas, and more importantly, to try to implement those ideas. Now, the reason I mentioned everybody who was on this committee, is because there's an ask here, and the reason that I wanted to do this podcast was to get this message out with a particular ask. And the ask is, if you have ideas for this committee, you know, contact me or anybody else that I just named, because you know, this, should it be a public process to try to gather information and ideas, and in particular, report any bias that you're aware of him? Because if things aren't now, I don't think there's an easy way to do that, you know, already there's a reluctance, especially by the bar to do anything like that. And by court staff, you know, it took a lot of courage, I think, for people to come forward against justice Johnson and make their allegations and it was a long process there. But it would seem to me that you know, every Court of Appeal website, because each of the districts has one, maybe there should be a link there that says, you know, if you have something to report anonymously, you know, click here, but even that there's reluctance for anybody to do that. And so it would be nice to to gather some information.

Tim Kowal  30:17  
Maybe there's one question and possibly a suggestion based on when you mentioned, there's an open question and how to members of the bar? Or how do members of the public submit complaints? Because it's, you mentioned that it's not at all clear exactly how to go about doing that one way that most people at some point or another, if they're litigants figure out how to do is to file a one 70.1 challenge for cause, which almost just just go away. They're they're not filed for good grounds. But I wondered, I was reminded can't

Benjamin Shatz  30:44  
do that on appeal. And remember, the focus of this committee is about appellate bias, right? Yeah. So you know, you don't even have that to work with, you know, I suppose in theory, people can file motions to recuse a panel member or something. But I mean, how often do you see that? How would you track that down? And that's probably not really what we're getting at, because you don't typically see motion that says, you know, I don't want justice, so and so on of my panel, because just as so and so doesn't like people of this certain type. I mean, you just I don't think you ever say something like that?

Tim Kowal  31:16 
Yeah, yeah, that's right. I wouldn't know how to advise a client to do that you write a letter to the court, or you could file a petition for rehearing after the fact, I guess if you find something afterward, but you have a very few options. And I

Benjamin Shatz  31:27 
do have an anecdote to share about that. But I want to complete my thought on the ASQ. In addition to, you know, having the courage to report bias, if you see it and ideas for the committee, to the extent that your local court or region has a bias Committee, which was recommended long ago, you should volunteer for it. And if it doesn't, maybe you should step up and start working with whatever Bar Association's you're involved with to say, hey, you know, there's supposed to be this thing, and I don't know where it is, let's make it or let's do something about it. So I would encourage that. Now, I'd also say, you know, for appellate lawyers, it's maybe an unusual thing, because I've been, I've been in the appellate world now for at least three, three decades here in California. And as much as people like to complain about, you know, everything, I don't really think I've heard a lot of bias complaints in the appellate chatter that's out there. But maybe people just don't want to talk about it, or they're not talking about it with me. So I'd be curious, you know, from your perspective, and from the perspective of the broader bar, how do people feel about our appellate courts? My view was always, they are essentially pretty fair and bias free. And I don't just mean, the justices, I mean, all the way down through the court staff. So far, they're not perfect, and there are definitely problems, but the problems they've never seem to be hinged on, on bias. But what do I know? Yeah, maybe there's more out there. And so we would love to find out.

Tim Kowal  32:55  
Yeah, I think that's an important question to ask to our community to see if we get any comments coming in about what types of bias they may be seeing, because I agree with you, I, I think there's a filtering mechanism. By the time a judge is elevated to a court of appeal justice, there has been a kind of sorting and filtering mechanism, we don't tend to get those bad apples failing upward, so to speak, to the appellate bench. I think we, from what I we all 50% of the parties and litigants are unhappy at the end of an appeal. But still, I think, like you said, then the system is designed in a way so that even the unhappy party feels that they got a fair shake.

Benjamin Shatz  33:30  
So you know, we had promised some anecdotes, or maybe citations about such things. And so you know, we can start marching down that list and this is by no means exhaustive, but I pulled a few examples going back to 1973. There's a California Supreme Court case Giler versus Commission on Judicial Qualifications 10, California 270, where a judge was removed for subjecting female attorneys and chambers to salacious discourse on aspects involving a rape trial. And you know, again, we're back to the old gender bias stuff that was going on. Similarly, actually, in 1983, there was a pretty well known incident in New York where a state judge in New York was publicly disciplined twice for calling a female attorney, a little girl. You hear about that sort of thing? I think there's a lot less of that going on these days.

Jeff Lewis  34:21 
I used to have a female partner, my law firms, a two partner law firm, who in the arts in the early aughts, had a retired discovery referee in Orange County, referred to my partner's little lady, and what can we do to make this little lady happy in terms of a discovery order? I was flabbergasted. Yeah, it still happens.

Benjamin Shatz  34:38 
Yeah, it does. So let's see. 1988 45, California 580. And there's Ryan vs. Commission on Judicial performance where a judge's removed for misconduct including telling sexual jokes and chambers to female attorneys. Yeah, just not. Not a good idea.

Tim Kowal  34:55  
Right. Yeah. Well, and regardless of the gender it's inappropriate, yeah,

Benjamin Shatz  34:59 
yeah. Exactly. And on the federal side and the Eastern District of California and the inrae. Plaza Hotel Corp case was the bankruptcy citation. The court review a debtors lawyer who referred to the trustees female lawyer as office help. So again, you know, sort of the denigrating of the female lawyer. And on the criminal side, the United States versus mass Central District of California case in 1989. The court there justified a significant departure from the sentencing guidelines for a female who was convicted of bank robbery. And this was based on the theory that will she was dominated by her male partner in crime and saying that, quote, it's a fact of life that men can exercise a Svengali influence over women. So you know, there's a bias that actually is ridiculous, but it helped the a woman in that case and her sentence, but it's just not right,

Tim Kowal  35:50  
right. Yeah, that's strange. It reminded me of an experience I had reviewing a case for a potential appeal. And I was taken aback by a comment made by the trial, the judge when of denying a motion for a DVR row, on the basis of the judges had put had attended a training about how to rate the credibility of victims of sexual assault. And the judge said, Well, based on my training, I have undergone extensive training on this. And I understand that when a woman doesn't have a, an emotional, sufficient emotional response to being asked to relate her trauma that undermines her credibility, and I thought that just seemed like a I don't know if it's sexist, but it's just a bad application of whatever training that Judge got.

Benjamin Shatz  36:28  
Yeah, it definitely comes up in a family law type matters. So in 1992, there's a published case called inrae, marriage of Iverson, that overturned a divorce judgment, in part because the trial judge was making biased remarks to the wife, you know, calling her a lovely girl, you know, again, back to these patronizing comments from judges to female litigants. And then, of course, there's there's plenty more citations to you know, judges making sexually suggestive remarks to females in court or staff members and re Gordon in 1996 is a published case more recently, and focusing in on appellate courts. Now, there was the famous Martinez versus O'Hara face 2019 32 Cal app 5853, where the plaintiff's attorney commits misconduct on appeal, including gender bias by calling a judge a succubus, and being reported to the to the State Bar and the Brigante vs. Chow. De is also 2019, where litigant called female judge who is now an associate justice on the court attractive and it's like let's, you know, talk about irrelevant and sexist. The Court of Appeal comes down

Tim Kowal  37:39  
on that. And just completely inappropriate.

Benjamin Shatz  37:44  
Yeah. So you know, there you have examples of appellate courts who are very attuned to this, looking out for other judges, you know, it's the lawyers that are misbehaving. And it's perfectly appropriate for the courts to do that, because the courts are supposed to not only police themselves and their own staffs, but also the officers of the court, which are the lawyers. So you know, it goes both ways.

Tim Kowal  38:05  
I wanted to ask you, Ben about another case that was on this list here, Catchpole versus Brandon, which involved where the judge had interrogated a plaintiff in a sexual harassment action. And the Court of Appeal noted that the judge had taken a quote, fatherly tone that when interrogating the woman on the stand, and the tone was, quote, either courtly and patronizing or harsh, and reprimanding, and quote, and it created a strong impression of gender bias. And I wondered, you know, interpreting tone can be very difficult, and especially on appeal, as we know, and we're just looking at the cold dry record. And, you know, how do we intuit the tone from the record? And isn't tone just inherently difficult to try to police after the fact?

Benjamin Shatz  38:49  
Definitely, you know, that's a published case, and people can take a look at that one, as well. But you know, in that case, the judge also sort of improperly assumed that a woman's failure to aggressively resist sexual assault was a form of consent. I mean, so talk about the caveman mentality of gender relations. You know, when you've got that, then it's easy to look back at the record and say, well, the judge was saying these things. And you know, maybe you can intuit tone from the actual rulings.

Tim Kowal  39:17 
Yeah. Well, but then speaking as appellate attorneys who know that ordinarily, we would be up against if we were the appellant there, and we'd have this substantial evidence standard, that very high hill to climb, but if not, if we have another weapon to hand and say, Oh, well, in addition to not being supported by the evidence, who was also sexist, was evidence of judicial bias. Is that an additional weapon that can be used to challenge the Fact Finder?

Benjamin Shatz  39:43 
Well, I mean, you use the record as best you can, as you point out, it's hard to overcome these things. Yeah. And the presumptions are going to be against that. But especially in certain courts that have that are known for looking out for this that are very attuned to this if you've got something good I suppose you should use it. And even beyond, you know, using it in your own advocacy, if there are, in fact, things going on that should not be going on that should be reported at any court level, then they should be reported, but particularly at the appellate level where there hasn't really been much focus on this before.

Tim Kowal  40:19  
If you were the appellate attorney in this case, and you're looking at the record, and you decided this may be a good issue to raise on appeal. But I would be concerned that the panel would say, Well, if you believe that the judge, you're not just challenging the judges fact finding his prerogative as a fact finder, but you're challenging that it was the product of judicial bias. Mr. Schatz, did you file a complaint with the bias prevention committee? And if you have failed to do so, does that waive or forfeit that challenge?

Benjamin Shatz  40:44 
Yeah, and nine times out of 10, you're gonna say, well, there was no committee, I didn't know what to do. I didn't know how to do it. And I didn't want to alienate the judge even further, because I already felt that things were not going well. So you know, who knows how that shakes out. But there is a distinction here between your advocacy for your client, and thinking about bias and your obligation as lawyer and as a citizen, to make sure that the courts are functioning properly, regardless of how your case turns out, you know, these are things that should be reported. And you shouldn't just be using it as a tool to for your own clients interests. And I did want to share one more anecdote because there is something a little bit theoretical about all this. And you may say, well, this doesn't, this doesn't come up in my cases, that's never going to be an issue for me. And so here's my story about this. In 2013, I was involved in a case called Ellis versus Toshiba. And it's a published case to 18 Cal app fourth 853. And it involved a proper plaintiff and appellant who was a woman, and a lawyer, and she gets sanctioned. And she then appeals that sanction. And she's referred to the she loses, gets referred to the State Bar. And the opinion in that case, was written by Jeff Johnson, flash forward all the way in June of 2021. So you know, this public has published decision from 2013. So you know, eight years later, roughly, she pops up again, and she files a petition with the California Supreme Court, based on gender bias. She argues, hey, wait a minute, you know, I was a female lawyer, and look at Justice Johnson, you know, he was removed. And so therefore, you know, my case was decided by a biased prejudice, justice. And I want to undo it, you know, I want a second shot. Yeah. But believe me, I was surprised to receive that petition. And my client, you know, my former client from years ago was like, Wait, what's going on here? Why are we even talking? You know, we won that case, ages ago, is there any chance that it could be unraveled, and of course, the petition was denied. I mean, in some sense, it's quite quite ridiculous what she was trying to do. And yet there, you have a real world example of bias coming up and creating, you know, something that actually affects practice. Now, as I said, you know, it didn't go anywhere in that case, but conceivably, in the right case, you know, maybe there actually is something to an argument like that. And so these are things to think about. And again, the call is out there for ideas, and, and even anecdotes or stories about, you know, bias in the appellate courts, because it's hard to address it if we don't even know what exactly the real problems and targets are. One thing that that's come up is the use of names and appellate opinions, and in particular, Spanish names, and the Asian names. They're not, it's not always used consistently, right? Like, you know, you have John Smith versus Mary row. And so you've got Smith versus row. And that's easy. But have you ever noticed how a lot of times the Asian names, the full name is always used? So it's like is there's a different treatment there? Now? Maybe that's because in many Asian cultures, the last of the surname is actually the first and Binyomin Haven't you ever wondered about that? Like, we all know, Yakko versus Hopkins, right? Why isn't it just Whoa, versus Hopkins? Right. Yeah. I mean, and, you know, maybe that's a good thing, but it's certainly a different thing. And it's something that I've noticed, and similarly, with Spanish names, there's a lot of issues there. First of all, there are special characters and accents and things that sometimes don't get used. You know, I think that having just a square on the Supreme Court helped with that a little bit, getting some of those accent mark used properly. But there are different ways that Spanish names are created, you know, and if you're a student of literature, you know, like Ortega Iike set and things like that, and some of them get quite long and complicated and the way that the that's done, the names don't always seem to match. You know, the, the Anglo perspective of everybody has the same last name and the family, but it doesn't work that way. And also on court forms. A lot of times there isn't a way to put in sort of the full official Spanish name because there are multiple names that go into creating the last name and which one really is the last name do you Use the first part of the last name or the second part of the last name. So this is something that's come up and is an issue in, in California. And so, you know, maybe there should be some guidance in the in the California style manual more than there is about, you know, the appropriate use of litigants names and court opinions. But, you know, that goes into some cultural sensitivity.

Jeff Lewis  45:21 
Right? Hey, Ben, I have a question. One of your calls to action was for people to get involved their local committees in terms of bias, a big chunk of our leader of our listenership is in LA in Orange County, to the LA County Bar in Orange County Bar have active committees dealing with the issue of bias?

Benjamin Shatz  45:36 
That's a great question. I don't know the answer to that. I know there are there probably committees that are sort of in the ballpark, there. Ya know, there's because there's been so much done about diversity these days, you know, every law firm now has a Diversity Officer of some sort, and all the bar groups have diversity committees. But I'm not sure that there's been a focus on the local bias committee, and how that can be used. You know, there's not there has been a lot of education lately, and MCL Lee requirements on elimination of bias, and implicit bias, you know, both in the judiciary and at the bar. And that is definitely part of what you know, this appellate committee is supposed to be designed to do. And so in that sense, some of the work has been done, and is out there. But, you know, more needs to be done. And I think more needs to be done to make it clear and obvious where all of this can and should be, and the current standard 1020 talks about how there should be information regarding how to submit complaints about court employees directly to the court or how to submit complaints about judicial officers to the CJP, or elsewhere. I mean, that should be out there. And I'm not sure that it is, I don't think that there, there are easy and ready easy ways to do that. And so that's something that probably needs to be upgraded. And in terms of the appellate courts, in particular, the standard 1020 mentions appellate courts, when it talks about local or regional committees, because of course, appellate courts cover more than one local bar group or region most of the time, you know, I suppose Orange County is as an exception, right. But, you know, appellate courts can form separate or joint appellate committees or join trial court committees, and regionally. And so you know, basically, all ideas are on the table. And as I said, this new committee that's been formed that I'm on is, is focused on everything statewide. And so you know, whether we keep it broad or we go more narrow, doesn't matter. The point is, we need to get the message out there. So I appreciate you allowing me to talk about this and put out a public call and see what we get back. And I very much look forward to hearing what feedback you gentlemen get from this podcast.

Tim Kowal  47:53 
Ben, do you have any sense of the volume or scope of complaints that might be out there? And again, we're talking about a committee that's directed at bias in the Supreme Court and courts of appeal in California, not trial court. So it's, I don't know that that's been studied before. And as you mentioned, you know, we have 170 Point ones when somebody points six is you know, that we have that procedure for trial courts, but nothing for the courts of appeal for the appellate court. So I wonder if you have any sense, how many complaints might be out there? Once you put that portal up? Are you going to get flooded? Or is it hard to imagine that there's going to be a lot of complaints?

Benjamin Shatz  48:23  
I think we don't know. And so that's why we need to do it. But you know, even if nothing comes in, remember, the broadened scope of this is that the courts should be preventing bias stops, yes, prohibiting it, and not just being reactive to oh, well, here's a complaint. So we should do something about it. But affirmatively making clear to the bar and to the public, really, that the courts are fair, that there is not bias, you know, how do you persuade people that that is true? And what can you do to get out ahead of any problems and what sort of programs can be done? Or public messages? You know, in the wake of the George Floyd murder, a number of superior courts, Santa Clara, as an example, issued video statements on their websites, where they had a bunch of judges from the court saying, we're here for you, and we're going to be fair, we decide our cases impartially, and without bias, and you can trust us. And maybe that more of that needs to be done. Again, as lawyers, I think we sort of assume like, Well, yeah, the basis of the system is it's going to be fair, we may believe that, but it's not necessarily clear that the public does, and all of the studies that have been done are showing that the faith in the judicial systems generally is declining.

Tim Kowal  49:38 
Right. Yeah. And as you mentioned, the objective is not just fairness, but the appearance of fairness. And we can't quite say that, well, we haven't gotten any complaints when we don't have a way to submit complaints. And I wonder if some of the complaints that would be submitted would be more along the lines of sociological or economic type studies. comparative studies will in this when you slice and dice Standard evidence appeals, it affects minorities, women, other ethnic minorities, are the losing party more often? What if we might start getting those kinds of economic type analysis? But like you said, you have to open it up and see what kind of issues come up. So I think it'll be a good teaching event for everybody. Well, and

Benjamin Shatz  50:15  
that that is the point. All right, well,

Tim Kowal  50:17 
we will we're definitely going to put that call out to our listeners to report any kind of bias and what types of nubbin is there? I think you mentioned that there's it's still in the works, what type of Portal? What type of complaint procedure is going to be set up? Correct?

Benjamin Shatz  50:32 
Yeah. I mean, look, the committee has met once and come up with a mission statement, nothing actually has been done yet to point to and say, you know, click here for your ideas, which meant and again, that's why I mentioned every committee member by name on this in this podcast, so that you there are choices in terms of who to reach out to. It's not a secret committee, right. And every lawyer has email addresses. So you can send emails and be off if somebody wants to send something to me anonymously. I will keep it anonymous. Yeah, yeah.

Jeff Lewis  51:02 
Yeah. Okay. Well, Ben, this has been invaluable. We're going to wrap up here we will. Again, we want to thank you for your generous time and putting this presentation together really learned a lot, and very thought provoking. We want to also thank case tags for sponsoring the podcast each week, we include links to the cases we discussed from casetext daily updated database of case law statutes, regulations, codes, and more listeners, the podcasts enjoy special discount on casetext basic research at casetext.com/calp. That's casetext.com/calp,

Tim Kowal  51:30  
and if you have suggestions for future episodes, or guests, and certainly if you have suggestions for the bias prevention committee on how it can solicit complaints and what types of issues to be on the watch for please feel free to contact us. We will get that information along to Ben or you can contact Ben and we will put the other members of the committee in the shownotes. So you have ready access to send those suggestions to the committee members. And with that, we will see you next time. And thanks again to Ben Schatz, our guest today. Thank you.

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