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Demystifying the High Court

By Mary Lou Katz
This article appears on Page 7.

      For many lawyers and judges, the California Supreme Court resembles a big black box. Petitions, briefs and writs disappear into the box, and some time later the box mysteriously shoots out a decision.
      The objective of this article and self-study test is to demystify the workings of the California Supreme Court by familiarizing readers with the court's basic rules and procedures. By reading the article and taking the test, readers will learn about how the Supreme Court handles its workload, starting with petitions for review, briefing by the parties, oral argument and rendering of the court's opinion.
      The California Supreme Court handles both criminal and civil cases. The court receives 9,000-to-10,000 filings a year, including 5,000 petitions for review in cases decided by appellate courts. The court also has original jurisdiction over habeas corpus petitions (California Constitution, Article VI, Section 10), and it reviews recommendations from the Commission on Judicial Performance and the State Bar of California regarding misconduct actions against judges and attorneys.
      With all the various filings and submissions, the California Supreme Court is extremely busy, keeping its seven justices and cadre of clerks and judicial attorneys continually working to stay atop the ever-rising tide of litigation. The court has the capacity to issue 100-to-120 opinions per year. To put this in perspective, the U.S. Supreme Court, with two more justices and a much larger support staff, issues 80-to-90 opinions per year.
      A big reason the California Supreme Court works so hard is that it has original jurisdiction over death-penalty cases, bypassing the intermediate appellate courts. California Constitution, Article VI, Section 11. An automatic appeal occurs when a death-penalty judgment is rendered, and the California Supreme Court must hear the case. Penal Code Section 1239(b).
      To reduce delay in handling death-penalty cases and to permit the court to devote more time and resources to other important litigation that warrants attention, the California Supreme Court has proposed conferring original jurisdiction to the Court of Appeal to handle death-penalty cases. Given that 20 percent of the court's time is devoted to death-penalty cases - a tremendous three-fold increase since just 1985 - this proposal clearly deserves serious consideration.
Petitions for Review

      The California Supreme Court, like its federal counterpart in Washington, D.C., is a court of last resort. However, it is not designed, nor does it have a duty, to right every wrong and correct every incorrect legal ruling by the lower courts. The huge volume of cases makes such an undertaking impossible, and the court has great confidence in the ability of the Court of Appeal to correct the vast majority of errors. Other than in death-penalty cases, where review is automatic, the Supreme Court grants review only "to secure uniformity of decision" among the appellate courts or "to settle an important question of law." California Rules of Court, Rule 8.500(b)(1).
      Because of the tremendous volume of cases submitted to the Supreme Court for review, most petitions for review must be denied. Accordingly, the most important element of a petition for review is a compelling explanation of why the case is so exceptional that review should be granted. The petition must begin with a short, nonargumentative statement of the issues presented for review and must include a copy of the appellate opinion from which review is being sought. Rule 8.504(b)(1), (4). Attorneys should note that, "[a]s a policy matter, on petition for review the Supreme Court normally will not consider an issue that the petitioner failed to timely raise in the Court of Appeal." Rule 8.500(c)(1).
      A petition for review must be filed within 10 days after the Court of Appeal's decision becomes final. Rule 8.500(e)(1). This is a bit tricky because there are generally two possible finality dates, depending on the disposition in the Court of Appeal. When the appellate court has denied a litigant's petition summarily without opinion, the decision is final immediately. Rule 8.264(b)(2). When the Court of Appeal has filed a written opinion, whether or not it was certified for publication in the official reports, the decision becomes final 30 days after the opinion was filed. Rule 8.264(b)(1).
      Although relief from an untimely filing for Supreme Court review is possible, it is rare and cannot be granted after the 30-day period for the court to order review on its own motion. Rules 8.500(e)(2); 8.512(c)(1). Counsel also should be aware of a major trap for the unwary: "For purposes of this rule, the date of finality is not extended if it falls on a day on which the clerk's office is closed." Rule 8.500(e)(1).
      Once the court receives a petition, the request is assigned to one or more judicial attorneys for preparation of a conference memorandum. The judicial attorney's memorandum usually recommends either granting or denying the petition. Another option is to deny review and depublish the Court of Appeal opinion, which leaves the lower appellate court's ruling intact but strips it of any precedential value. Internal Operating Practices and Procedures of the California Supreme Court, part IV C.
      The memoranda are sorted into "A" and "B" lists. Cases assigned to the "A" list include all those for which the recommendation is to grant review or a dissenting opinion was filed in the appellate court. Cases assigned to the "B" list are ones for which the recommendation is to deny review because they concern routine matters or ones for which application of the law is settled. Internal Operating Practices, pt. IV D.
      The Supreme Court meets every Wednesday to decide whether to grant review, typically considering 250 cases per meeting. At least four justices must be present to have a quorum, and the votes of at least four of the seven justices - a majority of the court - are required to grant review. Internal Operating Practices, pt. III C.

      Once review is granted, the court can immediately transfer the case back to the appellate court with directions on how to proceed, "hold" the case pending disposition of another case with similar issues or schedule it for briefing. Rule 8.512(d)(2). "Either at the time review is granted, or at any time thereafter, the court may specify which of the issues presented should be briefed and argued." Internal Operating Practices, pt. IV K. Although the issues are normally those identified in the petition for review, the court can add, subtract or modify issues depending on its goal in granting review.
      The petitioner (the party that filed the petition for review) has the option of filing an opening brief on the merits or relying on its briefing in the Court of Appeal. Rule 8.520(a)(1). Although a party usually drafts and files a brand new brief, when cost is an issue, the option of merely filing a notice of intent to rely on the briefs in the appellate courts can be thrifty, if a bit risky when those briefs were unsuccessful in the lower court. The opposing party may file an answer brief on the merits or an intent-to-rely notice. Rule 8.520(a)(2). The petitioner may, but is not required to, file a reply brief. Rule 8.520(a)(3).
      The Supreme Court also may grant nonparties leave to file amicus curiae briefs. On leave of the court, amicus briefs may be filed in support of or opposition to granting review or on the merits after review is granted. Rules 8.500(g)(1), 8.520(f). The application for leave to file should include a copy of the brief, state which side it supports and explain how the brief will assist the court. If the court grants permission to file the amicus brief, all parties are allowed to file an answer to the amicus. See Rule 8.520(f).
      Finally, the parties may file supplemental briefs if necessary to point out "new authorities, new legislation, or other matters that were not available in time to be included in the party's brief on the merits." Rule 8.520(d)(1).
Post-Briefing Procedures

      After the briefing is completed but before a date is set for oral argument, the chief justice assigns the case to one of the justices on the court. Internal Operating Practices, pt. VI C. In assigning cases to the justices, the chief generally considers things like whether the justice worked on the case or has encountered similar issues in other cases. In death-penalty appeals, however, the cases are assigned in rotation as they are received.
      The assigned justice is responsible for preparing a draft opinion called a calendar memorandum. "The purpose of the calendar memorandum is to present the facts and legal issues, and to propose a resolution of the legal issues." Internal Operating Practices, pt. VI A. Generally, the assigned justice's judicial attorneys prepare a draft calendar memorandum, which is edited and approved by the justice before being circulated to the rest of the court. Each justice reviews the circulating calendar memorandum and indicates whether he or she will concur, dissent or write a separate opinion. Pt. VI D. The chief justice convenes a monthly pre-argument conference in which cases that appear ready are identified and set for specific oral-argument dates.
Oral Argument

      Unless otherwise ordered, only one lawyer may argue for each side. Each side gets 30 minutes to argue, except in death-penalty cases, for which the time can be extended to 45 minutes per side.
      The petitioner, who has the right to open and close, uses part of his or her time for opening. This is followed by the opposing party's full argument; the petitioner closes with whatever time he or she has left. See Rule 8.524. Each party's 30- or 45-minute time limit includes oral argument from its amici curiae. An amicus that wishes to argue must obtain permission from the side it supports to use some of that side's time, and the court must approve the arrangement. Rule 8.524(f), (g).
The Opinion

      Once arguments are concluded, the case is considered submitted to the court. No further briefs can be filed unless the court specifically so requests. Rule 8.524(h).
      After the case has been submitted, the "Chief Justice convenes a conference to determine whether the calendar memorandum continues to represent the views of a majority of the justices." Internal Operating Practices, pt. VIII A. Assuming the majority of justices agree with the disposition suggested in the calendar memorandum, the final drafting of the opinion is usually assigned to the author of the memorandum. If a majority of the justices disagree with the disposition set forth in the memorandum, the case is reassigned to one of the justices in the majority. Internal Operating Practices, pt. VIII A(1), (2).
      The justice assigned to the case circulates the resulting proposed majority opinion to all the other justices. All concurring or dissenting opinions are also circulated among the justices. "Unless good cause to vacate submission appears, the opinions are filed on or before the 90th day after submission." Internal Operating Practices, pt. IX, X.
      An opinion becomes final 30 days after it is filed; however, the period can be extended for various reasons. Rule 8.532(b)(1). The most common ground occurs when a party files a petition for rehearing and the court extends the 30-day period for up to an additional 60 days. Rule 8.532(b)(1)(B). The court can issue an order denying rehearing or can allow its opinion to become final, whereupon the rehearing petition is deemed denied. Rule 8.536(c). The court also considers requests for nonsubstantive modification of the opinion, provided they are received before the opinion becomes final. See Rules 8.532(c), 8.264(c). These requests do not seek a change in the outcome of cases but may suggest clarifying language or correct minor errors.
      Requests for modification are assigned to the justice that wrote the majority opinion. Petitions for rehearing are assigned to a justice who joined, but did not write, the majority opinion. Internal Operating Practices, pt. IV B(8).
      Mary Lou Katz is a Los Angeles County Superior Court commissioner.

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