How The California Supreme Court Decides Whether to Grant Review

The California Supreme Court recieves over 5000 petitions for review each year, and grants review in just over 200 cases. About half of the petitions gtanted were either granted and held pending the resolution of another case or granted and transferred back to the Court of Appeal with instructions. How does the court decide what cases to take? This page summarizes the Supreme Court's internal procedures for deciding which cases to take and for deciding the cases on the merits. (See also our hints for a successful petition for review.)

The Petition for Review

When a petition for review is filed, it is initially assigned to a research attorney on the central staff. The central staff research attorneys work for the court as a whole, as opposed to chambers attorneys who work for particular justices. The case is often assigned to a staff attorney who has some experience in that particular area of the law. The central staff attorney reviews the petition for review, opposition, and any amicus letters, and prepares a "conference memorandum" that discusses the law and facts. These memoranda are usually between 5 and 15 pages. The conference memorandum also contains a recommendation about whether to grant review. The staff attorney also assigns the case to the "A list" or the "B list" (which are discussed below).

The statement of issues is very important in the petition for review. This frames the central staff attorney's inquiry and helps him decide how important the case is.

The central staff attorney has access to the record on appeal, but the attorney typically will not review much of the record. Often, there is little dispute about the facts, and where there is, the Court of Appeal presumably reviewed the record more thoroughly. If a petition for rehearing was filed in the Court of Appeal, arguing that the Court of Appeal misinterpreted the facts, the central staff attorney might look more closely at the record.

Answers to petitions for review are filed in about half of the cases. Answers are most helpful to the court when they identify any relevant factual disputes or when they explain why review should not be granted because of problems like an incomplete record, lack of a conflict between the Courts of Appeal, or a poor procedural posture. Answers that simply argue that the Court of Appeal reached the correct result can often backfile: if the petition for review is well written, a well written answer might make the issue seem more interesting than it otherwise might be.

Amicus letters in support of review are sometimes important. An amicus letter from a trade organizations or other large group will often highlight the importance of an issue. Amicus letters that discuss the legal issues in detail are rarely helpful.

Cases with a dissent almost always go on the A list. Virtually all the cases on the A list are published cases (although not all publised cases go on the A list.)

The conference memrandum is circulated to all the justices on a Thursday, and are reviewed by a research attorney in each chamber. Research attorneys can draft "supplemental memoranda" that provide additional thoughts, and these supplemental memoranda are circulated as well.

The following Wednesday, all of the justices meet in a conference in the Chief Justice's chambers to decide which petitons for review to grant. About 150 petitions are decided in typical conference. Each case on the A list is discussed individually. The most senior justice speaks first, less senior justices speak next, and the Chief Justice speaks last. Any justice can move a case from the B list to the A list. The B list cases are not discussed individually. Typically, about 1/3 of the cases are on the A list, and about 2/3 of the cases are on the B list.

If four justices vote to grant a petition for review, the court will take the case.

After the conference, the court meets with the central staff and provides feedback. The court will sometimes tell the central staff to look for cases raising particular issues.

Pre-trial cases (like cases decided on summary judgment or on a demurrer) rarely are reviewed because the record is typically incomplete.

Granting Review and Other Options

The court has 5 options.

If the court grants review, the parties brief the case.

Reviewing the Briefing

The Chief Justice will assign the case to one of the justices who voted to grant review. That justice in turn assigns one of his or her chamber research attorneys to the case. That research attorney prepares reviews the briefing, the record as necessary, and conducts legal reserach. That research attorney then prepares a calendar memorandum discussing the legal issues and recommending how the court should vote. That memorandum is reviewed the the justice and then circulated to other chambers.

Each justice then assigns one research attorney to work on the case. That research attorney prepares a memorandum to the justice recommending whether to agree to disagree with the recommendation in the calendar memorandum.

Each justice then circulates a preliminary response memorandum. It contains ceckboxes (concur, dissent, etc.) and a space for comments. Judges can also circulate concurring or dissenting calendar memoranda.

During this entire process, there is often an active dialogue between the justices and the research attorneys.

Setting Oral Argument and Deciding the Case

During the Wednesday conference, the justices also discuss the cases currently pending before the court. Once it appears there is some consensus, the case is scheduled for oral argument.

The research attorneys working on the case typically attend the oral argument when it is held in San Francisco. They usually listen to an audiotape when it is held in Los Angeles or Sacramento.

After the oral argument, the justices meet in a post-argument conference and take a straw vote on the case. There typically is not much discussion of the case at that point.

Generally, the justice who perpared the calandar memorandum prepares the opinion in the case. The court has 90 days from oral argument to submit the opinion.

 


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