Recent appellate opinions, procedural issues, and strategies for California and Federal appellate courts.
California Supreme Court 2026
Does Biden's use of an "autopen" to make judicial appointments comport with Federal statute?
The President, with approval from the Senate, has the authority under Article III of the United States Constitution to appoint Judicial Officers "for life." How this appointment is actually made official by a "seal" upon a "commission" is set forth in Title 5 United States Code section 2902, which reads in part:
(a) Except as provided by subsections (b) and (c) of this section, the Secretary of State shall make out and record, and affix the seal of the United States to, the commission of an officer appointed by the President. The seal of the United States may not be affixed to the commission before the commission has been signed by the President. (Emphasis added.)
Note that the subsequent subsections make no mention of an autopen or, for that matter, any digital signature. For example, section 2902(b) provides the seal may be affixed "before" the commision is signed by the President, once again requiring the President sign the commission. The question therefore becomes whether use of an autopen meets the required act, i.e., that the commission related to the appointment be "signed by the President."
Of course, the initial question is whether Biden's inner circle used an autopen for judicial appointments as those around him did in so many other contexts. However, if even one judicial appointment used an autopen, this becomes a potential appellate issue that may ultimately need to be decided by the United States Supreme Court.
Article III Section 3
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
United States Code section 2381. Treason
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
As you no doubt have heard, the Joe Biden / Kamala Harris administration, led by Attorney General Merrick Garland and special prosecutor Jack Smith, abused their power and ignored the separation of powers found in the United States Constitution by instituting the “Arctic frost“ probe. The gist of this probe is that they posited a criminal, President Trump, and then decided to cast as wide a net as possible to find a crime to match their target. Special prosecutor Smith’s apparent thinking was that there had to be a crime involved in claims of President Trump and other Republicans that there was fraud and other irregularities in the 2016 election (the only election ever conducted in a largely “remote” fashion), and he therefore issued subpoenas of truly shocking scope.
Included in these were subpoenas for records relating to Turning Point USA and other private organizations, and even worse, phone records of many Republican members of Congress including nine Senators, and, indeed, key senators such as Ted Cruz and Lindsey Graham. Even worse, the subpoenas included an order that the subject not be told that the records were being sought, on the pretense that the targets of the subpoenas might destroy records. Obviously, the Senators involved take great umbrage at the suggestion they should not be told about the subpoena because they would, as United States Senators, actively seek to destroy records. This part of Judge Boasberg's order is seen below:
One might ask how any Jurist on the planet would approve such a subpoena
The answer, it turns out, is that the reason the subpoena was approved is that the jurist who did so is United States District Court Judge James Boasberg for the District of Columbia. Recall that this jurist directed the location and route of United States government planes — as part of his supposed “equitable powers” which he believes extend to oversight as to how a co-equal branch of government operates. (See https://appellatespectator.blogspot.com/2025/03/the-judiciarys-takeover-of-executive.html.) He also has been accused of making derogatory comments about President Trump at a judicial conference even though Mr. Trump is a litigant before his Court, making it apparent he cannot view any action involving this litigant in an objective fashion, but Judge Boasberg has not recused himself, something not permitted by the Rules of Ethics. Indeed, historian Victor Davis Hanson has called Judge Boastberg “the most powerful man in America” even though he is a trial judge. (See https://www.foxnews.com/video/6370751312112 .)
And now we have these subpoenas intended as nothing short of a “take down” of persons with opposing political views by conducting a wide-ranging fishing expedition involving several entities and persons and seeking phone private phone records.
And now we have these subpoenas intended as nothing short of a “take down” of persons with opposing political views by conducting a wide-ranging fishing expedition involving several entities and persons seeking iphone private phone records. The offensive and extraordinarily broad attempt by the Executive Branch (prosecutor Smith) and the Judicial Branch (Judge Boasberg) to invade the privacy of both private citizens and the realm of the Legislative Branch is illustrated by the text of one such extra-Constitutional subpoena:
In 2010, Alyssa Backlund (Backlund) sued Christopher Stone (Stone) for defamation, intentional infliction of emotional distress (IIED), and related claims. Her complaint did not specify any amounts of damages. Stone hired counsel and defended the lawsuit for some time before his counsel filed a substitution of attorney form, showing that Stone was now self-represented, and listing a P.O. box as Stone’s address. Stone then failed to appear or to defend the action, leading to his answer being stricken. Backlund mailed a statement of damages to the address Stone provided on the substitution of attorney form and then got a default judgment against him for more than $1 million. Backlund renewed the judgment almost a decade later. Stone moved to vacate the renewal on the grounds that the default judgment was void for lack of due process, in that (1) Backlund’s action was not one for personal injury, and thus the damages had to be specified in the complaint; (2) even if a statement of damages was appropriate, Backlund did not use the form the Judicial Council adopted for that purpose; and (3) Backlund failed to properly serve Stone with the statement of damages. We reject Stone’s contentions and affirm. (Id., p. 2.)
For both a statement of damages and a statement to preserve punitive damages: (1) “If a party has not appeared in the action, the statement shall be served in the same manner as a summons,” or, (2) “If the party has appeared in the action, the statement shall be served upon [their] attorney, or upon the party if [they have] appeared without an attorney, either in the same manner as a summons . . . or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14.” [Citation.]
In this case, Stone had appeared in the action, first represented by counsel, and then self-represented. He thereby triggered the second branch, under which service may be made “upon the party if [they] have appeared without an attorney”. . . .
Backlund properly served her statement of damages by mailing it to the P.O. box Stone listed on his substitution of attorney form, which was the only address for Stone on file when Backlund served the statement. Stone argues that his former counsel’s office was his “address of record” when Backlund mailed the statement of damages because no notice of change of address had been filed, “regardless of whatever was written on the Substitution of Attorney form.” He thus argues that, assuming service by mail was permissible, Backlund was required to serve the statement on his former counsel, despite the notice he gave that counsel no longer represented him. This argument defies common sense. Stone’s substitution of counsel form served as a notice of change of address in this case, because it notified the court and the parties that Stone was no longer represented by his former counsel and provided Stone’s current address.(Id., pp. 11-12; emphasis added.)
Query: When, if ever, is it appropriate to call out the tactics of an opponent by naming the perpetrator?
To many the answer, at least while engaging in oral argument before a court is never. But the recent rhetoric of perhaps our best-ever Secretary of the Treasury, Scott Bessent, raises the issue.
As summarized by Google, Secretary Bessent named a particular Chinese Communist Party official, Li Chenggang, as the gentleman who had been attempting to derail a crucial trade deal with inflammatory language and displays of pure aggression:
As of October 2025, U.S. Treasury Secretary Scott Bessent has publicly called out Chinese official Li Chenggang by name
. Bessent's strong criticism of Li's behavior during a visit to Washington in August 2025 led to China dismissing Li from his position as a lead trade negotiator.Key details of the incident:
- The officials: U.S. Treasury Secretary Scott Bessent and Chinese trade negotiator Li Chenggang.
- The event: Bessent accused Li of arriving in Washington uninvited in August 2025 and acting in an "unhinged," "disrespectful," and "very incendiary" manner during trade discussions.
- The reason for the dispute: Bessent claimed Li threatened that "China will cause global chaos" if the U.S. proceeded with its plan to charge port fees on China-linked vessels.
- The outcome: In October 2025, China removed Li from his post shortly after Bessent's public comments. Li had also previously been serving as China's representative to the World Trade Organization.
Assuming Bessent is correct about what Mr. Li said, one many debate whether it was proper to call him out individually, and, assuming doing so was effective rhetoric (it was), what does this tell us about litigation strategy? Most litigators have encountered opposing counsel who act unprofessionally and, even worse, may hide documents, intimidate third-party witnesses, or ignore court orders. Though the temptation is to mention the person by formal name in one's papers and oral argument, the generally-accepted practice is to refer to the conduct as being that of "plaintiff's counsel" or, if one can do this without a trace of irony, "my colleague on the other side."
This, of course, is designed to show the court the dispute is over the tactics of opposing counsel and not a personal dispute. However, there are times it may be wise to let the court know, with grace and subtlety, that there is not a "war" between the firms or ever between the parties, though the latter certainly have issues to resolve. Rather, the court may need to know that a particular counsel is the problem and that you would like to remain civil and have the behavior improve rather than responding in kind with a personal attack.
In this case, one somewhat subtle but still effective line of argument, to the effect the real issue is the conduct of a particular lawyer on that case, is the following:
Your honor, we are disappointed we have to bring to your attention our colleague's improper attempts to contact the witness [or whatever]. Our firm has worked well with opposing counsel's firm on prior issues, and we hope to do so in the future, but in this particular case things seem to be different and there seems to be an issue we need to have addressed.
Today marks the two-year anniversary of the genocidal attack by Hamas against Israel and its people, as well as several Americans.
We continue to pray for peace, the success of the new peace plan proposed by our President, and for the return of all hostages.
J.K. Rowling: "Adults can't expect to cosy up to an activist movement that regularly calls for a friend's assassination, then assert their right to the former friend's love, as though the friend was in fact their mother."
As an appellate advocate, I like to highlight good rhetoric, whether in writing or spoken in public. So today we highlight the recent comments from our hero and a true treasure in terms of Western Civilization, the brave and fearless J. K. Rowling. She points out the silly and immature ignorance of those who criticize her for standing up for women's only spaces:
I'm seeing quite a bit of comment about this, so I want to make a couple of points. I'm not owed eternal agreement from any actor who once played a character I created. The idea is as ludicrous as me checking with the boss I had when I was twenty-one for what opinions I should hold these days.
Emma Watson and her co-stars have every right to embrace gender identity ideology. Such beliefs are legally protected, and I wouldn't want to see any of them threatened with loss of work, or violence, or death, because of them.
However, Emma and Dan in particular have both made it clear over the last few years that they think our former professional association gives them a particular right - nay, obligation - to critique me and my views in public. Years after they finished acting in Potter, they continue to assume the role of de facto spokespeople for the world I created. When you've known people since they were ten years old it's hard to shake a certain protectiveness. Until quite recently, I hadn't managed to throw off the memory of children who needed to be gently coaxed through their dialogue in a big scary film studio. For the past few years, I've repeatedly declined invitations from journalists to comment on Emma specifically, most notably on the Witch Trials of JK Rowling. Ironically, I told the producers that I didn't want her to be hounded as the result of anything I said.
The television presenter in the attached clip highlights Emma's 'all witches' speech, and in truth, that was a turning point for me, but it had a postscript that hurt far more than the speech itself. Emma asked someone to pass on a handwritten note from her to me, which contained the single sentence 'I'm so sorry for what you're going through' (she has my phone number). This was back when the death, rape and torture threats against me were at their peak, at a time when my personal security measures had had to be tightened considerably and I was constantly worried for my family's safety. Emma had just publicly poured more petrol on the flames, yet thought a one line expression of concern from her would reassure me of her fundamental sympathy and kindness.
Like other people who've never experienced adult life uncushioned by wealth and fame, Emma has so little experience of real life she's ignorant of how ignorant she is. She'll never need a homeless shelter. She's never going to be placed on a mixed sex public hospital ward. I'd be astounded if she's been in a high street changing room since childhood. Her 'public bathroom' is single occupancy and comes with a security man standing guard outside the door. Has she had to strip off in a newly mixed-sex changing room at a council-run swimming pool? Is she ever likely to need a state-run rape crisis centre that refuses to guarantee an all-female service? To find herself sharing a prison cell with a male rapist who's identified into the women's prison?
I wasn't a multimillionaire at fourteen. I lived in poverty while writing the book that made Emma famous. I therefore understand from my own life experience what the trashing of women's rights in which Emma has so enthusiastically participated means to women and girls without her privileges. The greatest irony here is that, had Emma not decided in her most recent interview to declare that she loves and treasures me - a change of tack I suspect she's adopted because she's noticed full-throated condemnation of me is no longer quite as fashionable as it was - I might never have been this honest.
Adults can't expect to cosy up to an activist movement that regularly calls for a friend's assassination, then assert their right to the former friend's love, as though the friend was in fact their mother. Emma is rightly free to disagree with me and indeed to discuss her feelings about me in public - but I have the same right, and I've finally decided to exercise it.
Brilliant words which you may find at:
https://x.com/jk_rowling/status/1972600904185483427
Today is the second full day of Rosh Hashanah, the Jewish New Year, or as the Bible says, the "Festival of the Trumphets." This Holy Day is denoted twice in the Torah:
On the first day of the seventh month hold a sacred assembly and do no regular work. It is a day for you to sound the trumpets. As an aroma pleasing to the Lord, offer a burnt offering of one young bull, one ram and seven male lambs a year old, all without defect. With the bull offer a grain offering of three-tenths of an ephah of the finest flour mixed with olive oil; with the ram, two-tenths; and with each of the seven lambs, one-tenth. Include one male goat as a sin offering to make atonement for you. These are in addition to the monthly and daily burnt offerings with their grain offerings and drink offerings as specified. They are food offerings presented to the Lord, a pleasing aroma.
Leviticus 23:24-25
Say to the Israelites: ‘On the first day of the seventh month you are to have a day of sabbath rest, a sacred assembly commemorated with trumpet blasts. Do no regular work, but present a food offering to the Lord.
The Jewish New Year and the Day of Atonement involve the crucial aspect of forgiveness
The Jewish New Year, based on the Lunar calendar, is of course a run-up to the Day of Atonement, or Yom Kippur, 10 days later. The latter is these days is where where a Priest would assist in atonement for our collective sin. Just as importantly, this forgiveness for us was coupled with forgiveness by us, in that all debts were to be forgiven every seventh year.
Something to think about considering (and I say so as a Christian) that modern Christianity seems to completely gloss over the financial aspect of "forgiveness" and many "Christians" work for financial institutions that are loathe to forgive debt even when it is the right thing to do.
Tulsi Gabbard: "Living aloha, living that love and respect, it doesn’t mean being a pacifist or rolling over when our ideas are challenged or when our freedoms are under attack, actually it’s the exact opposite"
As an appellate advocate I like to highlight good rhetoric, and I was very much impressed by the speech given by our Director of National Intelligence, Tulsi Gabbard, a veteran and former member of the Democrat Party, at the Prayer Vigil for Free Speech martyr Charlie Kirk.
Most moving was her explanation of the true meaning of "Aloha:"
Aloha. In the book of Corinthians, Paul said, “Therefore we are always of good courage and know that while we are at home in the body, we are absent from the Lord.” We are of good courage, I say, and prefer to rather be absent from the body and be home with the Lord.
Ultimately, for every one of us, the time that we have in this world is temporary. Our time will come, sooner or later, and so the critical question that we have for ourselves is whatever time we have, what are we doing with it? How are we making the most of every day that we have? And Charlie Kirk, every single day, carried out his mission. Motivated by his faith in Jesus Christ, and his unwavering dedication to defending our God-given freedoms enshrined in our Constitution and Bill of Rights. Because of his commitments and dedication, his impact, here and around the world is profound. And it is a beautiful thing to see it playing out now.
Probably like many of you, I had the privilege of joining Charlie at some of his different campus visits and, it was truly something to behold. Because he did things that no one else would do. As I sat with him in the very first time, huge crowd, thousands and thousands of, yes students, but faculty members and people of all different ages, and the first two or three people who had stood in line, waiting to say something to Charlie were very kind and they thanked him for his work. They praised him. They talked about how he positively impacted their lives. It was powerful to witness and to see, but Charlie wasn’t there for praise. He would call to the crowd and say, “Hey, who here disagrees with me? Come to the front of the line.” He listened, carefully, to everyone. Even when others in the crowd booed, whoever was speaking he told them to be quiet and to let this person speak, to show them respect. And he engaged in that lively debate, he encouraged it, he welcomed it, and he inspired it in others. Not belittling them, not arguing just to argue, but to have a real, sincere dialogue.
You know, I’ve said many times and, every soldier lives this fact, this truth: I may disagree with what you say but I will defend to the death for your right to say it. Charlie lived by this principle.
Charlie lived by the principle that no matter how horrible another person’s speech may be, their ideas must be defeated by better ideas. Not by resorting to violence.
You know, Charlie, was killed on September 10. On September 11, we observed the twenty-fourth anniversary of the Islamist terrorist attack on our country twenty-four years ago. Now these events have something in common. They were both carried out by those who hold onto ideologies that cannot stand up to scrutiny and challenge, so they feel that their only recourse is to commit an act of violence to silence those who oppose them, and to intimidate and terrorize others into silence. This is the definition of terrorism. We cannot allow ourselves to be terrorized into silence. We need to live Charlie Kirk’s example. The example that he set. That are captured by the words of Reverend Martin Luther King: “Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.” This was more than a quote from an icon in our past. To Charlie, he lived this every day, and he inspired countless people around the world to do the same.
And in the wake of this tragedy, this has been, to me, has been beautiful to see how today and, you know, Sunday football games all across the country, these teams were leading moments of silence, putting pictures of Charlie up on the big screen, having a flyover with the flags flying at half-staff to honor the impact of Charlie’s life, how he positively inspired countless people, and how it’s up to us to continue Charlie’s legacy. It’s time for us, every day in we engage with others, to choose to live aloha. Love, respect.
You know, from my home state of Hawaii the reason why we greet each other with the word ‘aloha’ is because of its deeply spiritual meaning. It doesn’t actually mean hello or goodbye. We greet each other with aloha because what we are really saying when we say aloha is I see you as a child of God and I respect you as such. It is to recognize that God is all-powerful, and God’s love is all-powerful. Love is not weak. Respect for others is not weak. There is nothing more powerful than love. Living aloha, living that love and respect, it doesn’t mean being a pacifist or rolling over when our ideas are challenged or when our freedoms are under attack, actually it’s the exact opposite. It means standing up, fueled by love to defeat hate, to defeat that evil and that darkness, and to speak the truth and defend our fundamental freedoms that are granted to us by God. Charlie lived this.
Charlie embodied this, and Charlie changed hearts and minds of countless people around the world because he made a conscious choice every day to choose love. I had a friend of mine who sent me a text the day after Charlie was killed, really distraught, and she said, “What do we do now? I know the answer should be love, the answer should be peace, but Charlie tried that. And it didn’t work.” And my response to her was, “No, it did work. Powerfully.”
And that’s why they killed him. We look at the movement that Charlie inspired around the world. Love, truth, freedom, turning to God in good times and hard times, not asking what God what he will do for us, but as Charlie said, “I am far more interested in what God wants from me than what I want from God.” He said, “My prayer is very simple. God, use me for your will.”
If only ten of us committed ourselves to continuing Charlie’s mission, that alone would be incredible, to be that fertilizer and that water that will help spread this light that is inspired by God’s love. But there are far more than ten of us. There are countless people.Countless people around the world, speaking different languages, have different backgrounds, different views and opinions, who are eager to carry on Charlie’s mission. To spread this light inspired by God’s love, which will also expose those who are trying to shut down free speech, trying to silence us through violence, intimidation, and terrorism. It will expose them for who they are and the hollowness and emptiness and weakness of the ideas that they present.
So while we will miss Charlie dearly, our hearts should not be broken. Because we are confident that Charlie is at home with the Lord. Embraced in the loving arms of Jesus Christ to whom he dedicated his life. Those who are full of anger and hopelessness and hate right now, some of them protesting outside this hall today, unfortunately, they do not have the spiritual happiness that Charlie experienced. They’re empty, and this is where their anger is coming from: it is their rejection of God, their desire to be God and therefore they have made God their enemy.
I have hope today that every one of us will do our best to shine the light of God’s love in our lives and in our work, that we will treat each other with aloha, respect, and stand strong and unshakeable in the defense of our God-given rights and freedoms. May God bless you all and may God bless this great nation. Aloha.
Even CNN has had to admit there are real free speech issues involved:
https://www.cnn.com/2025/09/03/uk/uk-farage-free-speech-linehan-latam-intl
This arrest is part of a larger battle between the comedian and trans activists, who have used the legal process to harass the writer and comedian over the past few years.
In Atlas v. Davidyan (August 29, 2025) case no. BC335661, the Second District Court of Appeal, Division Eight, upheld a default judgment of over $1,100,000.00. The court upheld this judgment, and related orders of the Hon. Holly J. Fujie of the Los Angeles County Superior Court, from a challenge by the defendant, who was self-represented in the Superior Court. Though an answer was filed and the case ostensibly litigated by the defense, a terminating sanction was granted in favor of plaintiff, thus striking the answer to the complaint, after the defendant failed to fully respond to discovery following many orders that he do so.
The defense argued what was called a "doomsday" sanction was an "abuse of discretion." This is because even though the responses were admittedly deficient, that there was in fact some sort of response to the discovery provided. Writing for the Court, Justice Rubin dispatched this argument by noting the trial court took an "incremental and non-punitive" approach to discovery sanctions:
The trial court imposed terminating sanctions only after hearing eight previous motions for discovery non-compliance, and only after taking a patient and cautious approach to the discovery dispute. After plaintiff’s first motion to compel, the court gave defendant more time to respond. When defendant still did not provide complete or adequate written discovery responses, the court imposed moderate monetary sanctions and set new response deadlines in four more discovery hearings between December 2021 and January 2023. When these orders to compel and monetary sanctions proved insufficient to induce compliance, the court imposed issue sanctions. When even this severe penalty did not result in discovery compliance, the court imposed terminating sanctions. The court took exactly the incremental and non-punitive approach contemplated by the discovery statutes. (Id., p. 13.)
Of note is the argument by the defense there was no proper "notice" of the damages to be awarded because no Statement of Damages was filed and served per the procedure in Code of Civil Procedure section 425.11. However, the appellate court found the complaint itself gave sufficient notice: of the amount of damages the defendant might have to pay:
But his argument fails for the simple
reason that plaintiff’s complaint states that she is seeking general damages [for] mental injuries and economic loss”; she sought “general and special damages in an amount to be proven at trial, but no less than $1,000,000,” as well as attorney fees pursuant to Welfare and Institutions Code section 15657.5, subdivision (a). Thus, there was no need for a section 425.11 statement and defendant was properly “apprised of [his] exposure” before the default was taken. (Id., p. 14.)
