What’s on Judges’ Minds, with Jimmy Azadian: From Threats to Judges to the ‘Turn It Down’ Law

Jimmy Azadian is often in the room when federal judges get together to share their personal concerns about the job. When judges are asked to come speak to a group, Jimmy reports that top of mind are the recent threats to judges and the courts—whether from armed vigilantes, protesters, students, or senators.

Jimmy, Tim, and Jeff then turn to some recent SCOTUS and 9th Circuit trends:

• Standing Doctrine Evolution: Courts are scrutinizing what constitutes concrete injury, particularly since Justices Gorsuch and Barrett joined the Supreme Court, with increased scrutiny of statutory damages and class action requirements.
• Birthright Citizenship Battle: In Washington v. Trump, the 9th Circuit held that the 2025 executive order attempting to end birthright citizenship was unconstitutional. But Judge Bumatay's partial dissent questioned states' standing, based on “fiscal” concerns, as too tenuous.
• Anti-SLAPP Shake-up: The en banc 9th Circuit in Gopher Media unanimously held that denials of California anti-SLAPP motions in federal court are no longer immediately appealable, reversing 22-23 years of precedent and potentially driving forum shopping.
• California Laws Preview: New 2026 laws include immigration enforcement limits at schools, required social media account deletion options, restrictions on facial coverings for immigration agents, direct Cal State University admission standards, and regulation of commercial audio volume.

Tune in for essential perspectives on judicial independence, constitutional interpretation, and strategic considerations that could impact your federal practice in the coming year.

Chapters

• 0:00 Introduction to the Podcast and Guests
• 1:58 The Mood of the Federal Judiciary
• 7:55 Judicial Independence and Safety Concerns
• 12:04 Executive Orders and Litigation Trends
• 17:44 Standing and Its Implications in Court
• 25:41 Recent Developments in Anti-SLAPP Law
• 39:48 Upcoming Laws in California for 2026

Transcript

Jeffrey Lewis
Welcome everyone, I am Jeff Lewis.

Tim Kowal
And I'm Tim Kowal, both Jeff and I are certified appellate specialists and as uncertified podcast 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, if you find this podcast helpful, please recommend it to a colleague.

Jeffrey Lewis
Yeah, if you don't find it helpful, listen to it at double speed next time.

Tim Kowal
That's right. All right, Jeff, the 2025-26 Supreme Court term officially started last month. And today, Jimmy Azadian has graciously agreed to orient us to the new term and also some upcoming laws, what to look forward to in California that are going to be effective in 2026. Lean in if the audio is too quiet to preview one of them, because there will be no longer any opportunity for us to blast.

the volume when we get to the more interesting parts. Jimmy Azadian leads the nationwide appellate and critical motions practice at Dykema working from its Los Angeles and DC offices and he's the chair of its West Coast appellate practice. Jimmy specializes in federal and state court commercial litigation especially involving First Amendment issues. More importantly he is a California appellate law podcast alum.

And he is the best connected appellate attorney that I know. Every time I mention his name to a colleague, they tell me, tell Jimmy that I said hi. So Jimmy, know everybody and everybody knows you. So welcome back to the podcast.

James Azadian
Well, thanks very much, Tim and Jeff. It's always such a pleasure to join you. Not just for podcasts, but for just any conversation. I always enjoy speaking with both of you.

Tim Kowal
Well, likewise, Jimmy, you such a great grasp of what federal appellate judges are thinking about. So I thought before we dive in, I would ask you if you can kind of give us a sense of the mood or the tenor of the federal judiciary. I know you're always hobnobbing with federal judges. I think you're talking about the conference, the appellate judges conference that you're attending next week. And I wonder if you can just kind of give us the perspective of a fly on the wall.

⁓ in a room full of appellate judges. are they talking about? What's the mood? What kind of issues are on their minds all the time?

James Azadian
Well, definitely, I think the subject on almost every judge's mind right now is the independence of the judiciary. That has been a subject that continues to really be the focus of a lot of judicial conferences that I've attended, starting with the Ninth Circuit Judicial Conference back in July in Monterey.

And now I know the Appellate Judges Education Institute is coming up next week in Minneapolis. It definitely seems that there is more and more interest in the subject of judicial independence. You know, the separation of powers is, think, an outgrowth of that discussion. And I think judges are also very interested in the subject of their own safety.

As you are probably aware, throughout the country, judges, federal judges have even been getting pizza deliveries, right? And it's really a sad state of affairs because, you know, the message that is being sent is, well, these judges didn't order these pizzas, but somebody now knows where they live. And ⁓ there have been efforts by the U.S. Marshals Service to, ⁓ you know, hopefully stop

and prevent any kind of danger to our judiciary, to our judges. But I think we're reaching a point where, I mean, you heard about Justice Kavanaugh and the individual that was found outside his home, right?

that was ⁓ there to plan an attack on Justice Kavanaugh and his family. It's getting to the point where now what I'm inviting judges to come speak, what used to be before an emphatic, yes, I'd love to come to speak to say your students at Pepperdine, Caruso School of Law, or to your students at UCLA, or even to a group of the Federal Bar Association. You can tell that there's less

enthusiasm around that, that they're asking questions. Who will be there? What can I expect? You know, they're not outright asking me is it safe, but I know that's what's on their mind. And so I was very happy to recently host Justice Kagan at Pepperdine Caruso School of Law.

Tim Kowal
Yeah.

James Azadian
She came and spoke to our students, with our students, our faculty. She judged our annual moot court competition. But I can tell you these were the same subjects that were discussed, you know, over lunch with her. There's a real sense of urgency around these subjects as far as the judiciary is concerned.

Tim Kowal
Let me ask you this. I wonder if you put these two things in the same bucket as that you're talking about these recent episodes, very alarming episodes about threats to personal threats of personal violence, threats to the safety of members of the judiciary. There was another flash point, recent flash point, when was it about two years ago when ⁓ who was the judge who visited Stanford Law School and was treated with ⁓ great, indecorous demonstrations and was basically shut down and prevented from speaking?

My recollection is that there was not any violence threatened there. It was just very disrespectful to a member of the federal judiciary. Do you put that in the same bucket? Do think that is also looming large in judges' minds, or is it limited to actual personal safety threats?

James Azadian
I think it's both. do. think it's both. I think, you know, Supreme Court justices have a high amount of protection and security. You know, circuit judges, district judges, they really don't. And so for them to step into these, you know, these forums,

and to be so generous with their time and their talents and, you know, be able to speak to the next generation of lawyers and even the current generation and crop of lawyers. What before was really viewed as something special and fun and ⁓ meaningful, I think, you know, the first layer, the first thought is, as you said, Tim, you know, what am I facing, right?

James Azadian
And I remember years ago, you all do too, when Judge Bybee on the Ninth Circuit went to Harvard, right, to meet with a group of federal society students there at the law school. And he was greeted, well, not favorably greeted, but greeted with a bunch of, you know, students wearing hoods, right? And it...

James Azadian
It really was a sad thing. Regardless of how judges, how you might view a judge's decision or ⁓ ideology, really a judge does not have the ability to respond, right? I mean, you and I can write an article in Op-Ed, a judge can't. And so if one takes issue with their decision or their decision making,

I think it's fine to engage in civil discourse. I think it's fine to, you know, even disagree with respect with that judge's decision. But it's never fine, you know, to attack a judge or to, ⁓ you know, level threats against a judge or go on the deep web and share that judge's home address. I mean, it's really, it's really reached, I think, an alarming level. And I'm not so sure that it's a

It's something that has been happening just recently too. mean, I think even in the, you know, even the past few years, you know, it's almost like when politicians come forward and say things about judges, right, and disrespect judges.

It's fine again to disagree with a decision and to say, disagree with that judge's decision, but to attack those judges or to say that they're not doing their job or they're intolerable. I mean, I think it opens a gateway of criticism and frankly, potentially attacks on the judiciary that are just simply unwarranted.

Tim Kowal
So those comments all fall under the rubric of independence of the judiciary. So I think those are well taken comments. What about from your perspective, are federal judges breathing a sigh of relief now that we're mostly done with the first year of Trump's second administration and the rash of executive orders that caused a lot of consternation among many of us? Are we through that first initial flurry? Are through the worst of it? are we on the...

the better end of the tail on that or are we bracing for another set of challenges?

James Azadian
Well, you know, I was recently speaking with a number of law school deans about this and, some who are advocates before the United States Supreme Court. And I don't think the temperature has changed. think judges, federal judges in particular, are definitely thinking that there's going to be more litigation surrounding executive orders. mean, we're in a very

interesting time in our nation's history. You know, there have been presidents before, including FDR, who took a unitary executive theory view of the executive branch. It's not simply conservatives. It's also been members of the other party. And, you know, a strong executive does often command more challenges, know, ⁓ core challenges to, you know, the edicts or the, you know, the executive orders that flow from the Oval Office.

James Azadian
But to answer your question, Tim, I think that the Supreme Court, its emergency docket, I don't like to call it a shadow docket, but its emergency docket, has become the executive order docket. And that's not just, you know, the state of affairs according to Jimmy Azadian. I think that's just, you know, that's come out of the mouths of various justices that, you know, they are expecting to continue to see a ratcheting up of litigation.

based on new and current executive orders. Now, that's not a commentary on the unitary executive theory, it's certainly not, I'm not saying that it's a bad theory or a good theory, or that these executive orders are good or bad. All I'm saying is, we're seeing an unprecedented amount of executive orders, and of course that means that they are on contentious hot button issues.

and those issues are going to continue to find their way into court. I should also mention that, you know, that might be a good segue into, you know, a subject that I know you wanted me to talk about, which was the Ninth Circuit cases of 2025. What are some of the more notable cases of 2025? And just in July, we had the Birthright Citizenship Executive Order come back to the Ninth Circuit.

And that was in the case of state of Washington v. Trump. And the reason why I thought that was a good segue is because when we're talking about executive orders and unitary executive theory, here, of course, you know, President Trump has issued an executive order that says that, you know, that really limits citizenship to certain categories. And this was a panel of two

Ninth Circuit judges who were appointed by Democratic presidents and one who was appointed by President Trump in his first term. Judge Gould, who was appointed by President Clinton, wrote for the majority. And the dissent was written by Judge Bumate, who was President Trump's ⁓ first term appointment to the Ninth Circuit.

And what the panel majority did was reaffirm that 2025 executive order attempting to end birthright citizenship. And it said that it was unconstitutional, that that executive order was unconstitutional. And it upheld the lower courts nationwide injunctions, even after the Supreme Court's Casa v. Trump decision, and reinforced that children born in the US remain citizens under the 14th Amendment.

⁓ Well, Judge Boumete issued what he called a partial dissent in that case. And what he does is he reframes the case as a test of judicial restraint and fidelity to Article 3. And he focuses and notes the dangers of judicial overreach in the face of what he calls intense policy controversy.

And he says that the role of the judiciary is not to answer every significant or contentious question.

And he does question the device of nationwide or universal injunctions. Frankly, I don't think any of us were surprised last term when the Supreme Court kind of put an end to ⁓ universal and nationwide injunctions with limited exceptions. But he questions those universal injunctions and that device. He does not find historical support for them in terms of their scope and their breadth. And he also says that the states do not have standing to bring a challenge.

to that executive order because there's what they've claimed as fiscal injuries are much too speculative. So the reason I start with this case for you is because I think what it highlights is more of an approach of two different approaches that you find in the judiciary. One, where they look at these questions more as political and you've got judges that are saying,

You know, we don't think this is our area. This is our lane. This is a political question. It's controversial. This should be decided by the elected officials. Right. And then you've got judges who say, no, this is exactly what our job is. It's to interpret and to apply the law, the Constitution to this set of facts. And is this case going to go up to the Supreme Court? I mean, I think so. I think it will. At least a case like this will. And

You know, the Supreme Court punted on the birthright citizenship question, the core question. We know it's just a matter of time before the Supreme Court weighs in on it.

Tim Kowal
That's interesting that this I wasn't aware of Judge Bumate's dissent or you call it a partial dissent or the standing question. The way you describe it sounds it sounds right to me that the state's fiscal impacts probably are too speculative to give a state standing to sue over an executive order. Certainly individuals would have standing. There was another I noticed there was another standing case on the docket.

this involving who has standing to challenge election issues and do the federal candidates have standing to challenge ballot counting issues? And I haven't looked into the case, but just reading that issue, the question came to mind, if not the candidate, then who? Who's going to have the wherewithal to get up and challenge that ⁓ before it's too late? Usually even candidates fail to get on the ball before it's too late.

because there's a very small window between the time the grievance is known and felt and the time it's too late to do anything about it. And then I can't talk too much about it but I've got a cert petition pending and the Supreme Court has asked the other side for briefing on it involving the question of whether a city has standing to bring federal constitutional challenges against a state because in the Ninth Circuit alone, among all the other circuits, has a categorical bar that prevents any municipality

from suing the state, bringing any kind of federal constitutional claim. So we're bringing that. there's another ⁓ related case out of New Jersey, a transit authority suing the state. And a similar issue has come up. So I wonder if there might be a milieu of standing issues in different arenas that are coming up in the court. And I'm knocking on wood that my hope is that they are going to take it, because that would bode well for my own case.

James Azadian
Well, know, Tim, first of all, congratulations. It's ⁓ no small feat to get one justice or more justices to wish for a response to a cert petition. So it means your case has legs. You know this better than anyone. It means that you're in the ballpark. So congratulations. And I hope for you that you get a wonderful merits positioning there and maybe even an oral argument.

I wanted to also mention though in terms of your focus on standing or what you see as the Supreme Court's focus on standing, some have called this a renewed focus.

on standing. we all, well, many of us were not around yet, but we all know at least historically through law school with the Lujan case, right, and Justice Scalia joining the Supreme Court, there was a real focus that started on standing. Article III standing, what is an injury? What is an Article III injury? What is a case ⁓ or controversy, right? What does

Tim Kowal
Jimmy, who was it who said that the rocks and the trees should have standing?

James Azadian
That's right. That's right.

And, you know, I heard these doctrines, you know, described by Judge Santel on the DC Circuit one time at a brown bag lunch that we had with him. And I loved what he said. He said, you know, mootness means, you know, you're too late. ⁓ Riveness means you're too early.

And standing means none of your business. And I always loved, I love those short hand devices. And I always think of those things. I just wish in law school when we learned about these doctrines, we could have probably gone home in just a few minutes if someone would describe them that way. right. Yeah. None of your beeswax. None of your beeswax.

Tim Kowal
We should just rename them. Yeah. Just, just give it salt of the earth names instead of, you know, ripeness, mootness, standing. No one understands those.

James Azadian
I do think that we're seeing a renewed focus on standing, to answer your question. And where I saw that start to come in really was with ⁓ the first administration of President Trump, with the... ⁓

the elevation of Justice Gorsuch to the Supreme Court, then ⁓ especially with Justice Barrett. I think with Justice Barrett, who clerked for Justice Scalia, I think ⁓ she certainly has a focus on standing. And she's really, I think, bringing her colleagues' attention to those standing defects and those issues. And frankly, I think it's always been an attractive way to duck

substantive questions and potentially controversial ones.

Jeffrey Lewis
But Jimmy, let me push back on that for a second, because it's easy to say, let me just say I don't agree with a lot of Trump's policies, and it's easy to say there's an increased focus on standing as a filter or a way to duck answering the hard questions. But the Supreme Court is the court that gets to pick its own docket, and they don't have to answer the hard questions just by denying cert. So I don't know. don't know if if I agree that.

at least at the Supreme Court level, that standing is a way to avoid hardy answering hard questions.

James Azadian
Well, I think it has a lot to do, Jeff, with how cases are chosen for cert, right? Because unlike other courts in the Supreme Court of the United States, you don't need a majority to take a case up on cert. You need four votes. And so that's not to say that the votes are necessarily there.

you know, on the substantive question, ⁓ you know, or how maybe some members of the court want the substantive question answered. I think a really good example of this is my late boss, Ken Starr, right? When he argued the Pledge of Allegiance case, we all remember that one, came out of the Ninth Circuit, New Gal, and ⁓ the court took it up on its merits, you know, does the Pledge of Allegiance violate the First Amendment? And...

If you remember, the court ended up deciding the case on standing. And it was Dean Starr, Judge Starr's argument that was made during oral argument. That this, ⁓ and in his briefs, but he had represented the mother and the child. ⁓ Newdow said he had standing because he was the father of the child who was forced to say the Pledge of Allegiance in school. Well,

Judge Starr came in and said, wait a second, he hasn't paid child support. He doesn't have standing to assert the rights of this child and the mom's okay with it. And guess what? Done, no standing. The case was dismissed for lack of standing. And some have described, well, gosh, that's maybe because the justices were actually, if they were forced to answer that question on the Pledge of Allegiance, were going to...

you know, go in a direction where we would no longer have under God in the Pledge of Allegiance. The Pledge of Allegiance would change. ⁓ All speculation aside, you know, I think on the one hand, that is a perfect illustration of where standing is not used as a ruse. Don't get me wrong, okay? But it is an off-ramp, right? If it's there, it's available and it's true. It's an off-ramp. It can be used. ⁓ Secondly, you know, you've got ⁓

know, cases that are taken up based primarily on the standing doctrine. I mean, we've seen those cases in the FCRA context, right? In the consumer reporting context, in the credit reporting context, where judges have said, look, you cannot bring a class action and amass all of these, just as I said, and amass all these damages. If you don't have statutory damages,

You don't have a claim under that statute. You don't have an Article III injury that is concrete. And so those are the types of cases where the justices are taking ⁓ core standing questions and doctrine and speaking to those directly. So I think you have both. And my point is that there is a renewed focus on the latter.

right, the core standing doctrines, the core standing questions. We're seeing a renewed focus on that. If you want to say kind of like a revival of standing in the Supreme Court.

Tim Kowal
And I think I would propose a slightly different salt of the earth term for standing than none of your business. I would call it, what's it to you? You know, because that's really the essence of the case or controversy requirement, which is where all these doctrines derive from is that there has to be a case or controversy, meaning the litigant there has to be some real world impact to these litigants. So what's it to you? And if it doesn't really affect your life, then you're just someone else with an opinion. And we all got opinions, but we don't all get to

James Azadian
That's right, good. I like that.

Jeffrey Lewis
Yeah.

Tim Kowal
Bring our opinions in federal court.

Jeffrey Lewis
Yeah, I would call it the ⁓ halls of justice doors are closed to you doctrine, but that's just me. I have different opinions.

James Azadian
Another way, I mean, there's been so much focus on concrete injury recently, right? Because of the Supreme Court cases, really focusing on that element of standing. But I will say that, you know, I mean, if any client walks into your office, you're probably going to ask them, you know, if they are the ones, if they are the claimant or claimants, you're going to say, if you win, if we win,

What are you going to get or what do you want? Right? That's a question and a conversation that probably occurs on the daily in many law offices around the country. So we are asking these questions as lawyers. ⁓ Why do we not expect our judges are asking the same questions? I know Judge Silberman on the DC Circuit, ⁓ you know, when he was ⁓ hearing cases, he would buy his law clerk a steak dinner.

if they found a standing defect, okay? And it was a good steak dinner. It was a very good steak dinner. It wasn't like, you know, at Sizzler. ⁓ It was, you know, at the Capitol Grill or, ⁓ you know, ⁓ Smith and Walensky or wherever. mean, you know, that's... Yeah, yeah. And... ⁓

Tim Kowal
Hmm.

So he had those law clerks sniffing out standing defects. He incentivized

them.

James Azadian
And I think it really goes to the heart of Judge Bumate's dissent, right? Because he says courts should be courts based on judicial restraint. They shouldn't be overreaching. They shouldn't be trying to answer questions that are not actually tenable, that are not justiciable. And so, again, I'm not taking a position on this case. All I'm saying is that here is a perfect illustration of two schools of thought on that subject.

Tim Kowal
Yeah, well, I think that's very interesting. think that so we'll be on the lookout for that for more evidence of the court's possible renewed interest in standing or I don't know if it's if it's exactly renewed or if it's enhanced and they're continuing to tighten it up. it going to Lujan is the is the operative test for standing ⁓ injury and redressability and causation. ⁓

Are we talking there's not talk of changing that test? Is it just more more strictly applying that test?

James Azadian
I think it's actually ⁓ that test hasn't really been ⁓ tinkered with too much. we're now doing is I think courts, justices, judges are.

⁓ getting more into the weeds on what is a concrete injury, right? What is an actual controversy, another element. ⁓ And I think when you're dealing with what is an actual injury, there's now been more of a focus on statutory injuries, statutory damages. And you could be part of a class action, but not actually have a statutory damage or statutory injury. And that's

Tim Kowal
Hmm. that's

interesting.

James Azadian (24:46)
Those are the that's what I mean when I say getting into the weeds, right? You just can't simply be part of a class action necessarily without having an actual injury. ⁓ A concrete.

Tim Kowal
Yeah, well that's interesting.

Does that tee up an issue of separation of powers if a legislature decides that, we want litigants to have standing to bring these claims in federal court, so if someone feels bad for a rock or a tree, we're going to give them nominal damages, ⁓ and that gives them concrete injury to sue in federal court.

James Azadian
Well, I think those are the specific cases that the Supreme Court has heard today, like the FCR case. And ⁓ in that particular case, they said, you can't just wave a magic wand and say you're damaged. We still have an Article III responsibility as federal judges to make sure that there is actually the Article III sets the floor, right? Not the ceiling.

Congress can set the ceiling, but the minimum requirement of standing requires some concrete palatable injury that is redressable. Not just simply an injury, but that is redressable.

Tim Kowal
Well, let's talk briefly about another interesting Ninth Circuit case. Jeff and I have talked about this, but I want to get your take on Gopher Media ⁓ because you, like Jeff, focus on a lot of First Amendment and anti-SLAPP work. And now in the Ninth Circuit, ⁓ the shape of these anti-slaps are going to change. I mean, I guess part of the upshot of the panel's decision or the en banc ⁓ decision in that case is that the SLAPP statute and the shape of SLAPP practice is already

different in federal court than it is in state court because of how federal procedural rules have to apply even though there is some arguable substantive aspect of slaps. tell us, remind us what happened in Gopher Media and then we'll talk about what the fallout is going to be or how anti-SLAPP practice is going to change shape in the night circuit.

James Azadian
Yeah, I think the fallout's the most interesting part of this discussion. ⁓ as a reminder to your audience, SLAPP, of course, is an acronym. And it stands for Strategic Lawsuit Against Public Participation. In this particular case, what was up for the en banc court's determination was the California anti-SLAPP statute. That's Code of Civil Procedure, Section 425.16.

And it was a unanimous decision. It was authored by Chief Judge Merguia, our chief judge on the Ninth Circuit. And it was issued just last month, you know, in October. And it was an en banc panel of the Ninth Circuit. And it held that denials of California's anti-SLAPP motions, so strategic lawsuits against public participation, those motions that are brought in federal court that are denied are no longer immediately appealable.

in federal court.

Tim Kowal
Yeah, because when it's denied

it means the case is still ongoing. You don't have a final judgment in the case. The case is not over. But in California, in a California state court, you would have an immediate right to appeal because you have a right as a defendant to get that SLAPP action against you out of court. And if the trial judge won't do it, then the Court of Appeal needs to do it.

James Azadian
Correct.

And the reason

for that, Tim, is because this anti-SLAPP statute provides a real substantive ⁓ remedy, and that is total immunity from suit. Okay? Let's set aside the other remedy, which is getting your attorney's fees paid for, right? If you win on an anti-SLAPP. The fact is that you get total immunity from suit. Not all anti-slaps, not all roses.

You know, by the same name are rose, right? They might smell like what they don't. They don't necessarily have the same thorns. California's rose in the form of an anti SLAPP statute has a lot of thorns, meaning it provides you with it with a complete immunity to suit as you know, as a defendant and it also gives you.

an entitlement to attorney's fees, you know, because you were dragged into court over something that was protected activity and that should not have been in court in the first place. Well, interestingly, the Ninth Circuit did not address, you know, the Erie Doctrine didn't address whether federal, and whether anti-SLAPP belongs in federal court. It assumed, it expressly assumed for purposes of this case that it does belong.

in federal court in order to reach the jurisdictional question of whether the anti-SLAPP ⁓ denial can be immediately appealed under the collateral order doctrine. And again, the Ninth Circuit said, no, it cannot. what is what I find this case to be the most surprising decision so far in 2025. I know we still have a couple of months left, so we could still be surprised, you know, even more. But this is to me the most surprising.

And it's because it reverses years and years of Ninth Circuit precedent, not just several years. We're talking 22, 23 years of Ninth Circuit precedent, right? Where the Ninth Circuit decided in the Batsl case, I think back in 2000, I want to say 2003, Batsl v. Smith, that these denials of NSOT motions,

California SLAPP motions are immediately appealable. And why am I so surprised? It's not just because it walked back decades of precedent in the Ninth Circuit ⁓ or that it has ⁓ further deepened the circuit split on this issue, on this question, but it's also because it's a significant shift by eliminating the right of an immediate appeal in federal court from a district court's denial of an anti-SLAPP motion. ⁓

beyond creating a circuit ⁓ split, there's also a great deal of uncertainty that is created for litigants and for parties from this decision. And that is something that I have to believe that the judges on the Anbakh panel were aware would happen, okay? ⁓ That uncertainty that this decision creates for future cases. The ruling has created some confusion and a debate even among ninth circuit judges about whether

To your point, Tim and Jeff, whether California's anti-SLAPP statute can even be applied in federal court at all. This has significant implications for future litigation strategy because plaintiffs or claimants in California or counterclaimants in California may now prefer federal court to avoid the potential delays caused by many appeals from denials of SLAPP motions in state court. So what we're talking about is foreign shopping, right?

Jeffrey Lewis
Yeah.

Huge

form shopping, huge form shopping. know, Johnny Depp was fully aware that Virginia's anti-SLAPP law was much weaker than California's. And so that's why he chose to file his lawsuit against Amber Heard out there in Virginia. And the same is gonna happen here. We need, the answer here is we need Congress take a second look at representative Raskin's federal anti-SLAPP bill, make it federal and be done with this debate.

James Azadian
Yeah!

Jeff, I have to agree with you. I've been a proponent of a federal anti-SLAPP statute for, since I can remember. But I can say beyond the forum shopping concerns, Jeff, what we're talking about here is on the subject of whether anti-SLAPP applies in federal court. I want your viewers and your listeners to know that we can actually gain a glimpse into a division amongst the conservative wing of the Ninth Circuit in the Gopher Media case. You have to look at the separate opinions.

Okay, the concurrences. ⁓ And you see my circuit judge, Judge Callahan, joining with Judge Bennett. And they write separately and they state that California's anti-SLAPP statute does apply in federal court. Well, that's a position that Judge Callahan has very consistently taken from the time she's been on the court, right? Now,

22, 23 years she's been on the court. She has always taken that position. Judge Wardlaw has taken that position. They've even joined together in ⁓ decisions where they say, you know, the federal ⁓ courts must hear California anti-SLAPP motions, right? Because it's a substantive ⁓ statute. It's not a procedural statute under ERIE. ⁓ But what's interesting here is, ⁓ you know,

judges Bress, Collins, Lee and Bumate, all on the en banc panel, and all appointed by President Trump, right, in his first term, judges Bress, Collins, Lee and Bumate, suggesting that it does not apply in federal court and ⁓ that the California is procedural, that it's not substantive.

Tim Kowal
That's the dividing line,

James Azadian
Yes.

Tim Kowal
Whether it's procedural or substantive. And if it's procedural, under eerie, it has no place in federal court.

James Azadian
Right, and what's interesting is I looked at the panel composition of Gopher Media, and in that case, you see Judge VanDyke as part of the en banc panel. But interestingly, I don't see that judge VanDyke has joined any of the separate opinions, right? So we don't yet know what Judge VanDyke 's position is. And while I think there's a lot of commentators saying, look.

you know, this, the handwriting's on the wall, you know, the anti-SLAPP is dead in federal court in the Ninth Circuit at least. Well, I think it remains unclear. ⁓ Not only because we don't know what Judge Vandike's position is, that's not the reason, but there are 18 active service Ninth Circuit judges who are not on this en banc panel, right? And a multitude of other.

senior judges in the Ninth Circuit are not on this panel. And so we don't know what their positions are on it. And so it's very much a numbers game. have to, you know, when you draw an banc panel, you don't know who you're going to draw. You don't know which judges are going to be on that. It's a petite en banc. It's not all 29 active service judges, right? It is 11 ⁓ judges selected at random, except for the chief judges on every en banc.

So you have 10 judges selected randomly, they could be any of those active service judges. Sometimes they could even be senior Ninth Circuit judges.

Tim Kowal
Okay, so Jimmy, you fall in the camp that there is a substantive component to the anti-SLAPP law. ⁓ Would you have joined ⁓ the majority here but not the concurrences?

James Azadian
⁓ I think that I am of the view that

it should be immediately appealable. That the Ninth Circuit got it right the first time, that it shouldn't have a broken rank with its precedent. Now on the question which this court didn't answer, which the online panel didn't answer, which is whether it belongs in federal court, I tend to be in favor of Judge Callahan and Judge Bennett's ⁓ position on this and Judge Wardlaw's historical position on this, which is that

it does belong in federal court, it is a substantive statute. It provides substantive immunity from suit. I can't think of more substantive, valuable, ⁓ you know, remedy provided by anything or anyone in the world than substantive immunity from suit.

Jeffrey Lewis
It.

Yep, to avoid discovery, to avoid a trial, to have the right of immediate appeal. ⁓ That's a unique creature under the law. That's expression by the California Legislature of substantive rights that belong to people who are sued for engaging in First Amendment activity.

Tim Kowal
Well, those things are undoubtedly valuable, but are they substantive? mean, there are lot of procedure, you know, the right to attorneys fees, isn't that, and costs, those are procedural rights, I believe. They're not substantive, you know, causes of action. But I mean, compare it to qualified immunity, where the officer is not liable, even if he did it, he's not liable unless there was a published decision on that point, or even better, because this comes up all the time in SLAPP cases,

litigation privilege. If you did it, if the defendant actually did make the defamatory statement, but it was in the context of a judicial proceeding, it doesn't matter if he did it because there is a substantive right under that litigation privilege. But it's not so for other things that are not qualified by litigation privilege. If you can show that there is a minimal merit to the claim, you are not protected by the anti-SLAPP statute. I think that makes it different than

⁓ qualified immunity or litigation privilege. I take your point that it's certainly valuable, ⁓ I think it can be distinguished. ⁓ I'm in the camp that it's procedural rights, ⁓ but I agree that it does create lots of problems. Forum shopping ⁓ and ⁓ vastly different ⁓ asymmetry, ⁓ but it all bleeds into the litigation shopping.

James Azadian
But I

love the comparison you make to qualified immunity and denials of qualified immunity motions in federal court, which are immediately appealable. I mean, we are talking about really, in large part, an apples to apples comparison here. And so I do think that it's

These are important questions. These are difficult questions. I don't want to make it sound like these are easy questions. These are difficult questions. However, I think we as practitioners, as officers of the court, have the obligation to...

bring these kinds of branches on other parts of the tree to the attention of the Ninth Circuit, where maybe qualified immunity isn't entering into the conversation and into the discussion. But what we can do is draw those comparisons and say, look, you don't want to create a schism in the law. You don't want to create this kind of inequity.

right that occurs where on the one hand you have qualified immunity appeals coming up and then the substantive immunity offered through anti-SLAPP protection well that's not apparently worthy enough for ⁓ an immediate appeal. Of course all of this goes away this whole conversation goes away if the Ninth Circuit determines that ⁓ you know under eerie it's a procedural device and it doesn't belong in federal court in the first place so we wouldn't even get to the question of jurisdiction on appeal.

Tim Kowal
Yeah. Okay, we're down to our last few minutes of time. And we wanted to get to some of the interesting laws in 2026. And Jimmy, you wrote an article about this that I'll share in the show notes. Remind me, was this in OC Lawyer magazine? Yeah.

James Azadian
Yeah, OC Lawyer. It's

an annual article.

Tim Kowal
Yeah, so tell us, give us the updates. What do we have to expect coming down the pike effective January 1st, 2026?

James Azadian
Well, thanks, Tim. Yeah, it's a fun article that they asked me to write every year on what are the ⁓ interesting new laws or the most impactful new laws that are going to take effect in the new year. This, of course, starting on January 1st, ⁓ 2026. Our ⁓ California Governor Gavin Newsom has signed several new laws impacting Californians and businesses.

And I thought it would probably be interesting to highlight just just a handful of these. The first is AB 49, Assembly Bill 49, and that's immigration enforcement at schools. And what this new law does is it bans school officials and employees.

of a local education agency from allowing an officer or an employee of that agency from conducting immigration enforcement to enter a non-public area of a school site for any purpose without being presented a valid warrant or court order.

It also directs particular new law directs school officials to request valid identification from the officer or employee of an agency conducting immigration enforcement seeking to access that non public area. ⁓

Tim Kowal
I'm sorry to do this and ask the question because I know Jeff's got a hard stop in just a couple of minutes, but these kind of laws, it makes me wonder, you know, it is lamentable and frustrating ⁓ when ICE will come to our California courts and enforce immigration law at our courts because then that's chilling to our court system. But I wonder if all of the, you know, it seems like there are a lot of state actions that make it difficult for ICE to do their job in other ways.

that are less impactful to our other institutions that it's leaving ICE a ⁓ precious scarce opportunity to enforce the laws other than taking these ⁓ more onerous actions.

James Azadian
Let me just get through some of these others too. know you're interested in these others. So one is ⁓ Assembly Bill 656, that's deleting your social Media account. Assembly Bill 656 requires social Media platforms to provide a clear and conspicuous button that allows for users to delete their account and gives users the necessary step to delete their account and personal information if they simply click on that button. Okay?

Tim Kowal
Okay.

James Azadian
The other one is Senate Bill 627, that is no more facial coverings for immigration enforcement agents. And this is kind of a dubious one from a constitutional federal constitutional lens because it's known as the No Secret Police Act. That's what it's titled. It makes it a crime, a crime for a law enforcement officer, including federal officers.

or those acting on behalf of a federal law enforcement agency to wear a facial covering. I'm not so sure that a state can make that kind of ⁓ legal pronouncement and to that matter, criminalize a federal law enforcement official's behavior. So it'll be interesting to see what the challenges are brought to this particular law. ⁓ Senate Bill 640.

Just in the few seconds we have left, this is a direct admission to California State University. Some of our high school students no longer need to apply to get into Cal State universities and schools around the state. If you meet a certain GPA threshold and you've taken and completed certain A through G coursework in high school, you will receive an admission.

⁓ opportunity at those schools around the state with a few exceptions. The good Cal states, the one that we call good ones, those aren't participating in this program. And you could probably name which ones those are. ⁓ Senate Bill 576 is the last one I wanted to bring to your attention. And this is one that I think we all will love and agree on no matter what our politics and ideologies are. It's ⁓ no more loud ads. ⁓

James Azadian
It prohibits video streaming services from transmitting the audio of a commercial louder than the video itself. Right? My only problem with this law is it doesn't go into effect until July 1st, 2026. I wish it went into effect immediately. So here's one where, you know, I think we all, to end on a positive note, we can all agree on is a good, yeah.

Tim Kowal
We finally have unanimity, that's right.

All right, well thank you, Jimmy, for that roundup. We're gonna post that link to that OC lawyer article, your annual article of it. What's the running title of it?

James Azadian
it changes every year, know, a new year, new laws. don't know. try to come up. If your viewers have suggestions for titles, I'm kind of out of ideas on what to call this article every year. you ⁓ know, if you can think of something fun or whimsical, please contact me.

Tim Kowal
Okay.

Okay, but until and

Yeah, but until July 2026, keep your finger on that volume button and keep your fingers ready to plug in your ears for when the commercials come around. But otherwise, then we'll finally be safe from those obnoxiously loud commercials. Well, Jeff ⁓ and Jimmy, thank you for the conversation. That's going to wrap up this episode. If you have suggestions for...

Future episodes, guests, topics, please email us at info at calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Jeffrey Lewis
See you next time.

Tim Kowal
Thanks again, Jimmy.

James Azadian
Thanks, Jeff. Thanks, Tim.