Securing High-Court Review

by Rochelle L. Wilcox and Terri D. Keville

How do you get to the California Supreme Court? Forget MapQuest and GPS. We're not talking directions, but rather how to secure high court review for cases involving disputed issues.

In all your cases, make sure to follow the applicable procedural rules. The hard part is not some intricate formatting requirement; it's getting the Supreme Court's attention. And in that regard, never lose sight of the oft-cited reason for Supreme Court review: "to secure uniformity of decision or to settle an important question of law." (Cal. R. Ct. 8.500(b)(1).)

The court grants review in only a tiny percentage of cases, and not all of those get briefed and argued. The court may "grant and hold" a case pending resolution of another case involving similar issues. Or it may "grant and transfer," directing a court of appeal to consider the case (Internal Operating Practices and Procedures of the California Supreme Court, Rule IV.C). But in 2008 the court granted review without deferring briefing in 42 civil cases - less than 5 percent of the petitions it received.

Procedure for Review
A necessary predicate to review is following the rules of procedure. First, if the court of appeal's opinion contains factual errors, they must be corrected via a petition for rehearing; otherwise the petitioner risks being stuck with those errors at the Supreme Court (Cal. R. Ct. 8.500(c)(2)). With few exceptions, the rehearing petition is due 15 days after the opinion is filed (Cal. R. Ct. 8.268(b)).

The petition for review must be filed within 10 days after the court of appeal's opinion becomes final (Cal. R. Ct. 8.500(e)(1)), which typically occurs 30 days after the opinion is issued. However, if the decision denies a petition for writ of supersedeas or dismisses an appeal on request or stipulation, it is final immediately (Cal. R. Ct. 8.264). But if the court of appeal designates its opinion for publication after filing, the 30-day finality period runs from the date of the order (Cal. R. Ct. 8.264(b)(3)). The decision is final on the 30th day, even if it falls on a weekend (Cal. R. Ct. 8.500(e)(1)). However, if the deadline for petitioning for review falls on a weekend, the deadline is extended to the following business day (Cal. Civ. Code §§ 12, 12a, 12b; Cal. R. Ct. 8.60(a)).

A petition for review looks, on the surface, like other appellate briefs. The same formatting rules apply: The petition must contain a table of contents, a table of authorities, and citations to the record, and it must adhere to the formatting requirements of Rule 8.204(b), including margins of one and a half inches on the sides and one inch on the top and bottom, 13-point type, and one-and-a-half-line spacing (headings and footnotes may be single spaced). The caption page is the same as for the lower court?the parties retain their respective "appellant" and "respondent" designations as the case moves upward (Cal. R. Ct. 8.504(b)).

However, there are four differences between a petition for review and a brief on the merits. First, the petition for review is shorter than an appeal brief?8,400 words, rather than 14,000. (See Cal. R. Ct. 8.504(d)(1), 8.204(c)(1).) Second, the petition for review must begin with a statement of the issues presented for review, which should be "concise" and "nonargumentative" ... "framing them in terms of the facts of the case but without unneces-sary detail." (Cal. R. Ct. 8.504(b)(1).) Third, if the appellate opinion was not final immediately, the petition must state whether a petition for rehearing was filed and, if so, the result (Cal. R. Ct. 8.504(b)(3)). Finally, the court of appeal opinion or order must be bound at the back of the petition.

The petition should address the court of appeal's errors, but not focus on them. The goal is to explain why the court should devote its scarce resources to resolving the issue presented, and the focus must be the criteria for review. Normally, the petition should present only one or two compelling issues; anything more may suggest that none of the issues is worthy of review.

The respondent may ignore the petition, file an answer, or if appropriate, file a separate petition for review. An answer ordinarily must be filed within 20 days after the court clerk receives the petition, but this deadline can be extended by the court (Cal. R. Ct. 8.500). Like the petition, the answer generally should follow the formatting standards for appellate briefs in the court of appeal.

If the respondent believes that additional issues are worthy of the court's review, it can raise additional issues in its answer - identifying these issues at the beginning of the answer, as in the petition for review (Cal. R. Ct. 8.504(b)). Alternatively, a separate petition for review can be filed within the deadline for filing a petition - 10 days after the court of appeal opinion is final (Cal. R. Ct. 8.500(e)(1)). The answer, like the petition, is limited to 8,400 words.

Finally, the petitioner may file a reply, due 10 days after the answer is filed, and limited to 4,200 words (Cal. R. Ct. 8.500(e)). Like the petition and answer, a reply should follow the formatting requirements for court of appeal briefs.

Standards for Review
Sometimes review by the California Supreme Court seems inevitable. The recently decided case about the constitutionality of Proposition 8 is a paradigm example of "an important question of law" warranting review by the Supreme Court (Strauss v. Horton, 46 Cal. 4th 364 (2009)).

Other cases are of such widespread significance that high court review also appears certain. In Martinez v. Regents of the University of California (No. S167791), for example, the court will decide whether federal law preempts a California statute granting preferential UC tuition rates to certain in-state residents.

But not every case contains an issue that leaps to the headlines or affects thousands (or millions) of people in a significant way. In some cases, petitioning lawyers will face a significant challenge as they attempt to engage the interest of at least four justices on the California Supreme Court?the number required to obtain review (Cal. R. Ct. 8.512(d)(1)).

Uniformity of Decision
One of the most straightforward reasons for granting review is to secure "uniformity of decision" - to ensure that trial courts have a consistent body of law to follow. Because unpublished decisions are not considered precedent and therefore do not affect California law (Cal. R. Ct. 8.1115(a)), they are unlikely to be accepted for review under this criterion.

Where a direct conflict exists, the reason for review is apparent. For example, in Simpson Strong-Tie Co. v. Gore (No. S164174), the court will review the Sixth District Court of Appeal's decision expressly disagreeing with the Second District Court of Appeal on two separate issues involving California's anti-SLAPP statute (Code of Civ. Proc. § 425.16).

Similarly, in City of San Jose v. Operating Engineers Local Union No. 3 (No. S162647), the petitioner city urged review because "[w]hile this matter was pending before the Sixth District Court of Appeal, the very issue presented in this case was being considered in at least four other appellate cases in District Courts throughout the State." The respondent union joined in the request for review, pointing out that one of the other four courts considering the issue had "issued a published decision directly in conflict with the decision ... in the instant case," and urging the court to review both cases. That pitch worked; the court granted review.

But even if no direct conflict exists, review by the Supreme Court may be necessary to ensure that the courts of appeal are not taking the law in an improper direction. Thus, in Village Northridge Homeowners Association v. State Farm Fire & Casualty Co. (No. S161008), the court agreed to review a decision distinguishing between two Supreme Court decisions holding that a party seeking to avoid a settlement agreement on the ground of fraud must rescind the agreement and return the consideration for it. The petition for review asserted that the appellate decision "threatens to erase 80 years of settled California law," and the court granted review even though the answer argued that the court of appeal carefully explained its reasons for distinguishing the Supreme Court cases, and limited its holding to the unique circumstances presented.

In cases such as these, input from the Supreme Court is needed to ensure that lawyers and trial judges know what the law is. The petition for review should include a thorough discussion of the conflict and why it must be resolved in the case at bar.

Important Questions of Law
Most cases accepted for review involve important but unsettled legal issues. The authority to take a case involving an "important question of law" provides the justices with wide discretion in setting their docket.

Many accepted cases present issues of first impression that affect people statewide. For example, in McCann v. Foster Wheeler, LLC (No. S162435), the court agreed to review choice-of-law issues that "have never been addressed, much less decided, by this Court or by the Court of Appeal." The petition called into question the state's reason for favoring residents in its choice-of-law "borrowing" statute, "to the detriment of residents of foreign jurisdictions." In resolving the case, the court is likely to delve into the public policy underlying the choice-of-law statute in order to discern the basis for allowing California citizens to avoid limitations imposed by other states.

The court also may accept review of a case because of the potentially devastating impact of a statute or regulation. For example, review in In re Nolan W. (45 Cal. 4th 1217 (2009)) had no practical impact on the parties involved. The court considered whether a juvenile court could incarcerate a parent for contempt based on failure to enter a substance-abuse program ordered in connection with attempted reunification with a dependent child. The mother's parental rights had been terminated at the time of the contempt order, and that order was reversed by the court of appeal. To resolve the case, the court of appeal was not required to address the extent of the juvenile court's authority, but the Supreme Court granted review to do so, ultimately holding that parents may not be jailed for contempt if they fail to comply with reunification orders.

Some areas of the law seem to be of particular interest to the court. In Pearson Dental Supplies, Inc. v. Superior Court (No. S167169), the court granted review to resolve an issue that no reported decision has discussed, in an area that affects many California citizens - employer-mandated arbitration agreements. The petition argued that the case presented "an ideal vehicle to clarify the scope of judicial review" in this area - certainly a factor the court considers in deciding whether a particular case should be reviewed. The court will decide what standard of review applies to an arbitrator's resolution of discrimination claims brought under California's Fair Employment and Housing Act.

Help From Friends
Under Rule of Court 8.500(g), amici curiae may submit letters to the court supporting or opposing the grant of review. No permission from the court is necessary, and the letters are not listed on the docket; rather, they are simply held for the court's review. Despite their informal status, letters from amici curiae often are pivotal in demonstrating why a case is worthy of the court's review.

In Marriage of Sonne (No. S166221), for example, the court will address pension benefits under the California Public Employees' Retirement System (CalPERS) - specifically, how they should be allocated when a public employee has had more than one spouse while working for the state. Although the petition for review discussed the number of people potentially affected by the court of appeal's decision (more than 1 million current and former state employees participate in CalPERS) - the particular issue might still have seemed too narrow to warrant Supreme Court review.

Nevertheless, amicus support from several family law practitioners underscored the potentially broad reach of the appellate decision, explaining how it would lead to widespread trouble and needless expense in the lower courts. One certified family law specialist recounted that "[o]n hundreds of occasions, I have assisted parties in disposing of their community property benefits" and "[a]s such I have been faced with the very issues involved in this case." The attorney explained that because the principles involved are often not understood, "many imperfect and unfair settlements and judgments must have been entered." Two other amicus letters expressed their agreement with the attorney's analysis and discussed a conflict with other appellate decisions that was not apparent from the opinion or the petition for review. A fourth amicus letter argued that the court of appeal's opinion conflicted with three other Supreme Court decisions, and offered two specific examples of situations in which the court of appeal's analysis assertedly would lead to unfair results.

Think Big
A successful petition for review does not merely harp on errors in the lower courts. Instead, it demonstrates convincingly how the court of appeal's decision significantly affects a broad range of Californians; or presents a conflict between lower courts that must be settled; or both. At the state's high court, where only a small fraction of requests for review can be granted, nothing less will do.

Even so, some worthy cases that meet these criteria may still be turned away because the legal issues have not fully ripened on a statewide basis: The state Supreme Court may decide to wait until more lower courts have weighed in on the issue. In addition, a case may involve an issue that the court determines should be resolved by the Legislature rather than the judicial branch.

All of these considerations color a petition for review and can affect your ability to convince the court that yours is the case to hear and that now is the time to hear it.

Rochelle L. Wilcox and Terri D. Keville are partners in the Los Angeles office of Davis Wright Tremaine who specialize in appellate litigation. Wilcox focuses on media and employment cases and Keville on health-care cases.

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