February 2022 Bulletin: RJA Writs and Appeals Tracker; Upcoming Trainings; Panel Raises; Favorable New Rule of Court; Job Opportunities

February 1, 2022

Read on for some important information about the Racial Justice Act writs and appeals tracker, details about upcoming training opportunities, an update on a proposed panel attorney hourly rate increase, a favorable new rule related to notices of appeal, and employment opportunities.  

Please be sure to follow FDAP on social media where you can find additional information and updates. 

Racial Justice Act Writs and Appeals Tracker: Help Coordinate Litigation on Emerging Issues

The Office of the State Public Defender, with FDAP assistance, has set up a system to track writs and appeals related to motions brought in the trial court under the Racial Justice Act (RJA.) The tracker asks for information related to the RJA claim, including what sections of the RJA statutory scheme are being litigated; the results of the motion, if any; and other important details about the case. The tracker allows attorneys to upload documents.

OSPD and FDAP will use the tracking tool to collect data on RJA-related issues percolating in the trial and appellate courts and to identify any patterns and trends. The information will help inform how and where OSPD can provide resources and litigation support to attorneys. 

FDAP will be monitoring RJA claims as they come through the office. However, there may be cases where we are unaware of an RJA claim until a brief is filed, especially in independent assignments. Consider reaching out to the consulting attorney early in your case if you have an RJA claim you intend to raise on appeal. Attorneys can coordinate who fills out the OSPD tracker (FDAP or the panel attorney.)  

The RJA tracker is available here. It can also be accessed on the OSPD website by clicking on “RJA Writ and Appeal Tracking Form” under the resources tab on the OSPD webpage.

Soliciting Questions for the Justices for FDAP’s Annual Seminar; Information on Other Upcoming Training Opportunities

FDAP’s 2022 Annual Seminar: As recently announced, registration is now open for FDAP’s 2022 annual seminar. Sessions include a moderated conversation with Justices Therese M. Stewart and Marla J. Miller of California’s First Appellate District (Division Two) on February 23, 2022 from 12 to 1 p.m. To ensure a more robust and interactive discussion, we encourage attorneys to send in questions for the justices before the training. Questions should be emailed no later than February 8, 2022 to: mcle@fdap.org

Other Upcoming Training Opportunities: The following trainings and webinars may be of interest to panel attorneys. 

Learn about the California Judicial Mentor Program: Feb. 10, 2022, 12 to 1:15 p.m. Join the Bar Association of San Francisco for a conversation with Justices Teri L. Jackson and Jon B. Streeter as they discuss their respective paths to the appellate bench and provide information on the California Judicial Mentor Program (Appellate), which pairs attorneys and trial court judges interested in an appellate court appointment with mentor justices, to demystify the judicial appointment process and to encourage applicants from diverse backgrounds to consider applying to the appellate court bench. Registration is available here. The event is free.

California Appellate Defense Counsel’s 28th Annual Conference and Seminar (Virtual): Friday, March 25 and Saturday, March 26, 2022. The two-day conference will be filled with informative and inspiring presentations, including the Project Directors Roundtable, a report from CADC’s lobbyist and criminal and dependency break-out sessions, providing a total of up to 8.0 hours of MCLE credit. Information and registration details available here

CACJ and CPDA’s Capital Defense Seminar: February 18-21, 2022. Information and registration details available here

Update on Proposed Panel Attorney Hourly Rate Increase, With Words of Support from CSC Chief Justice Cantil-Sakauye

Some tentative good news. The Governor’s proposed budget for the fiscal year 2022-23 includes an increase of $15/hour for the panel, increasing rates to: $110/hour for all assisted cases; $120 for most independent cases, and $130/hour for upper tier independent cases. If included in the final budget, the new rates would likely be effective for appointments made on or after July 1, 2022. Significantly, this is greater than the $12/hour increase the judiciary originally proposed. The increased funding is far from final. The Legislature has to agree. In addition, if the economy falters, the Governor himself could change his mind. There is more work to be done. 

The value of our work does not go unnoticed. California Supreme Court Chief Justice Tani Cantil-Sakauye recently recognized the importance of our roles, and the need for fair and just compensation, during the November, 2021 meeting for the Committee on Revision of the Penal Code. The Chief Justice’s inspirational words calling for better funding, and commending the “experienced and dedicated” professionals who choose this line of work, can be heard here around the eight-minute mark. 

Effective January 1, 2022, Rule of Court, Rule 8.304(b) has been amended in a very important and favorable way for our clients. The rule now provides: “If the defendant does not file the written statement required by Penal Code section 1237.5 or the superior court denies a certificate of probable cause, the appeal will be limited to issues that do not require a certificate of probable cause.”  The state appellate projects jointly took part in the public comments process in support of this rule change.

In the past when our clients filed a notice of appeal (NOA) after a guilty plea or admitted probation violation and only checked a box or boxes on the NOA for which a certificate of probable cause (CPC) was required, if the trial court denied the CPC or failed to act on it (which is a de facto denial), the NOA was deemed inoperative. Over the years, many appeals have been dismissed for this reason. On many occasions, FDAP has managed to save such appeals by filing motions asking that the NOAs be construed as operative as to noncertificate issues. Now, such NOAs are automatically operative as to noncertificate issues. It is of no consequence that the sentencing box, for example, is not checked.  So, we do not have to worry about these appeals being dismissed or about getting declarations in support of a motion to avoid dismissal. 

FDAP is working to ensure that the necessary outreach is occurring to educate the trial court appeals clerks about this change so that they will process these NOAs as operative. 

Employment Opportunities: ADI Executive Director, East Bay Children’s Law Offices

Executive Director, ADI: The Board of Directors of Appellate Defenders, Inc. (ADI) is currently accepting applications for the position of Executive Director. ADI is a non-profit law firm administering the appointed counsel system for the California Court of Appeal, Fourth Appellate District. More information about the position and the hiring process is available here

Staff Attorney, East Bay Children’s Law Offices: East Bay Children’s Law Offices, Inc. (EBCLO) is hiring a dependency staff attorney. EBCLO provides court-appointed legal representation to children and youth who are the subject of abuse and neglect proceedings in Alameda County Juvenile Dependency Court and guardianship proceedings in Alameda County Probate Court. Formerly a division of the Alameda County Public Defender’s Office, EBCLO became a stand-alone non-profit in 2009 establishing a holistic practice advocating for children both in and out of court. More information about the job opening is available here.