Based on stipulations and an agreement that included the justice’s retirement, the California Commission on Judicial Performance publicly admonished an appellate court justice for (1) delays in deciding approximately 200 cases over a 10-year period and (2) failing to properly exercise his authority as administrative presiding justice to prevent chronic delays in cases assigned to other justices on the court.  In the Matter Concerning Raye, Decision and order (California Commission on Judicial Performance June 1, 2022).  The justice retired effective June 1 and agreed not to seek or hold judicial office in the future, except that, “in the interest of justice,” he may conclude matters previously assigned to him that cannot be completed by June 1 and that “would place an undue burden on the other justices if they were reassigned.”  The justice also may respond to any requests from the court for information about cases assigned to him before his retirement.

The justice had been the Administrative Presiding Justice of the Third District Court of Appeal since 2010. 

The Commission noted that from 2011 to 2021, the justice authored opinions in over 1,200 matters, a substantial percentage of which were decided within a year after briefing was completed.  However, it emphasized that, during that same period, “a significant number of cases languished for years,” and more than a year passed between the completion of briefing and the issuance of an opinion or dismissal in approximately 200 matters assigned to him.

• In the justice’s oldest completed case, the parties dismissed the matter when 7 years and 9 months had passed after it was fully briefed.
• 2 of his cases were delayed between 6 and 7 years; 5 between 5 and 6 years; 17 between 4 and 5 years; 29 between 3 and 4 years; and 45 between 2 and 3 years.
• In the justice’s oldest pending case, a criminal matter with youthful offenders, the case has been fully briefed for 8 years and 7 months.

In the Third District, the court does not schedule oral argument or ask the parties if they want to waive oral argument until the justice assigned to the case has written a draft opinion on which at least 2 justices on the panel agree.  The delays at issue in the discipline case were “pre-submission,” that is, between the case being fully briefed and the oral argument being heard or waived or the case being dismissed.

Although acknowledging that the Third District has a high volume of cases, the Commission found that the justice’s delays could not be “attributed solely to an overburdened court” as “virtually all” of the other justices on the court did not have a similar pattern of delay.  Moreover, it noted that, after an inquiry from the Commission, the percentage of cases assigned to the justice that were decided more than a year after being fully briefed declined to approximately 7% from 14-35%, suggesting that the justice could have decided matters in a more timely manner.  The Commission emphasized that the judge “failed to prioritize efforts so that older cases could be resolved before work began on newer ones.”  The Commission found that the evidence did not show that the justice had intentionally disregarded his duties but noted that he had been “aware of his growing backlog of cases.” 

The justice had also known that, throughout the time he served as the administrative presiding justice, “there were chronic delays in cases assigned to some of the other justices on the court.  From January 2011 through March 2021, the decisions in 1,861 matters were delayed for more than one year from the completion of the briefing on the appeal; 768 of those cases were pending for more than two years after the completion of the briefing in the case.”

Although as administrative presiding justice the justice had several times circulated target standards for the timely processing of appeals, “the standards were often excused.”  He “took various steps to reassign cases or pause assignments to chambers that were particularly backlogged,” but, as he knew, “these steps did not resolve the chronic delays,” and at times, “burdened the justices on the court who had fewer older cases.”  The Commission noted that, although the justice repeatedly discussed the issue of delay with the other justices, he did not “propose and advocate changes to court procedure that would ensure the prompt resolution of older cases.”  As a result, it found, he did not fulfill his administrative responsibility and failed “to provide a forum for the expeditious resolution of appellate disputes.”

The Commission further found that the justice’s “conduct caused prejudice to civil litigants and criminal defendants.”  It explained:

Prejudice can occur in civil cases by parties suffering from uncertainty as disputes remain unresolved, or the payments of money judgments are delayed.  In criminal cases, appellants are prejudiced if they have served all or part of a reversed sentence, or when faded memories or lost evidence hamper resentencing hearings or retrials.  Prejudice can also manifest as “increased anxiety, mistrust, hopelessness, fear, and depression” that “results from the very thwarting of the hope that liberty will be restored through a right that the State has guaranteed — the appellate process.”

Citing the Commission’s “confidential investigation and stipulated findings” about case delays in the Third District, the Chief Justice of California has created an appellate caseflow workgroup “to review Courts of Appeal workflow, policies, procedures, and case management processes to promote transparency, accountability, and efficiency in rendering timely judgments.”