Benjamin G. Shatz

Partner, Manatt, Phelps & Phillips LLP

Appellate Law (Certified), Litigation

Email: bshatz@manatt.com

Benjamin is a certified specialist in appellate law who co-chairs the Appellate Practice Group at Manatt in the firm's Los Angeles office. Exceptionally Appealing appears the first Tuesday of the month.

David Foster Wallace's famous commencement speech, This is Water (Kenyon College 2005), recounts: There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says "Morning, boys. How's the water?" And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes "What the hell is water?"

Litigators, by definition, swim in the waters of the courts. Without a court system, there is no place to litigate. (We're ignoring ADR forums, really court-system spin-offs, for present purposes.) Unlike the young fish ridiculed above, no litigator is completely ignorant of the existence of the defining milieu of a court system. Yet the parallel is not completely inapt: Most lawyers accept the existence of the current court system and its details as a fixed firmament. The unarticulated belief is that the courts are the way they are, have always been that way, and will always be that way. Sure, the rules of litigation regularly change in minor ways, and sporadically in more meaningful ways, but overall, the basic structure of the courts is not only stable, but assumed to be immutable. This view - which is understandable and highly pragmatic - is particularly prevalent among newer lawyers who have not experienced major structural changes in the courts.

California State Bar demographics show that tens of thousands of lawyers have been in practice for fewer than 20 years. These lawyers are taught (or autodidactically learn) that California has a simple three-tiered court system: A seven-member Supreme Court, a Court of Appeal (divided into six districts), and a Superior Court (one in each of the 58 counties). This basically mirrors the federal court system, and is simple and straightforward. One might assume that such an aesthetically pleasing and logical system emerged fully formed, like Athena from the mind of Zeus. But that would be dead wrong. While many practicing lawyers can more or less live in a fishbowl bubble of naivety, the more perspicacious of whippersnappers eventually become woke. These are the youngsters who ask, "Uh, ok, if the entry-level starting court for litigation is the Superior Court, why is it called that? If there is no lower court, then what is it 'superior' to?"

The following, highly abbreviated whirlwind historical tour, provides an answer to that query, suitable for Padawans and Jedi Masters alike (who need to answer pesky questions, like "superior to what?" and "what was court unification?").

Most of the monumental changes in the California court system took place so long ago, they seem like ancient history. What follows is a highly simplified version of the story. See 2 Witkin, Cal. Proc. (5th ed. 2020) Courts, §§ 161-166; J. Clark Kelso, A Report on the California Appellate System, 45 Hastings L.J. 433 (1944); Roy Gustafson, Some Observations about California Courts of Appeal, 19 UCLA L. Rev. 167 (1971); William Blume, California Courts in Historical Perspective, 22 Hastings L.J. 121 (1970).

The original state Constitution of 1849 established seven judicial tribunals: the Supreme Court (which first convened in 1850) with three justices, District Courts of general jurisdiction, County Courts in each county, Courts of Sessions (with criminal jurisdiction), Municipal Courts and other inferior courts as deemed necessary, Justice Courts run by justices of the peace in each township, and Conciliation Tribunals (a very early form of ADR!). This structure was tweaked almost immediately in 1851, to expand to nine courts: the Supreme Court, District Courts, a Superior Court for San Francisco, County Courts, Courts of Sessions, Probate Courts, Justices' Courts, Recorders' Courts, and Mayors' Courts. (Lest we forget California's cowboy heritage, note that between 1851 and 1853 there were Judges of the Plains who attended rodeos and roundups to resolve cattle disputes.) In 1862 the number of Supreme Court justices increased from three to five.

Amendments in 1879 implemented many important changes. The Supreme Court was expanded to consist of a Chief Justice and six associate justices, who could sit in two three-judge departments or en banc. Terms of court were abolished (and ever since, the Supreme Court has been open for business year-round). The District and County Courts were replaced with Superior Courts, and Municipal Courts were replaced by Justices' Courts and inferior courts in cities and towns (though Muni Courts would reemerge in a few decades). The Constitution detailed the jurisdiction of each category of court.

By 1882, the Supreme Court had accumulated a backlog of nearly 800 cases and attorneys were complaining that having to wait two years for an appellate decision was a denial of justice. The Legislature directed the Supreme Court to appoint three commissioners to help clear the backlog in 1885. Four years later, two more commissioners were added.

The less-than-successful commissioner system was abolished in 1904 when the Courts of Appeal were established. Three District Courts of Appeal were created, the First in San Francisco, the Second in Los Angeles, and the Third in Sacramento. In 1918, the First and Second Districts were expanded by subdividing them into two three-judge divisions. (The Fourth, Fifth and Sixth Districts eventually followed in 1929, 1961, and 1984.) In 1923, the California Supreme Court established chambers on the Civic Center Plaza in San Francisco, where the court remains to this day.

In 1924, the Legislature was authorized to establish municipal courts in counties with over 40,000 inhabitants. In 1928, the Constitution was amended to allow the legislature to create additional appellate districts and divisions.

In 1934, contested elections of appellate justices were abolished and a constitutional amendment established the system for the governor to make appointments with justices subject to retention elections.

By 1950, the trial court structure had blossomed far beyond the original system into a complicated patchwork of Superior Courts, Municipal Courts, Township Courts, City Justice Courts, City Courts, and Police Courts. In particular, the Justice Court system was a mess of many different inferior tribunals with duplication of operation and conflict and confusion of jurisdiction. As a result, "inferior court revision" took place via constitutional amendments in 1950, with the goal of providing for only one type of court inferior to Municipal Courts. Each county was divided into judicial districts, and if a district had over 40,000 inhabitants, it would have a Municipal Court; and if fewer than that number, a justice court. These new Municipal and Justice Courts replaced all the other types of inferior courts.

In 1966, voters passed an amendment authorizing the Legislature to determine the number of appellate districts, divisions, and justices comprising the intermediate appellate courts. This amendment also changed the name of District Courts of Appeal to Courts of Appeal. The court structure began to resemble the current one, with the Supreme Court, Courts of Appeal, Superior Courts, plus Municipal Courts and Justice Courts.

In 1976, legislation radically changed the lower court system to equalize Justice Courts and Municipal Courts, creating Superior Court Appellate Departments. In 1995 Justice Courts and Municipal Courts were consolidated.

In 1998, California voters passed Proposition 220, amending the Constitution to allow each county's trial judges to unify their county's courts into a single countywide Superior Court system. In addition to authorizing the merger of Municipal Courts into Superior Courts (and the elevation of Municipal Court judges to Superior Court judges), Prop 220 also established an Appellate Division in each unified Superior Court. By 2001, all 58 counties had voted to unify their Municipal and Superior Courts.

All of this simply makes the point that the California court system has changed drastically over time. Today's California court system is the largest in the United States, with some California appellate districts having larger populations than entire states with their own whole complex judicial systems. Our current system is a streamlined, easy to understand, three-tier hierarchy of supreme court, intermediate appellate court, and trial court. See Carrillo & Durvernay, The California Judiciary, 7 Cal. J. Pol. & Policy 19 (2015). But history reveals a story of expanding and contracting types and numbers of courts. While we no longer have "inferior courts" (with the work of those courts mostly now denominated as "limited jurisdiction" cases), we have retained the "superior court" name, which remains a somewhat oxymoronic reminder that what seems simple today was not always that way.

Postscript: Last month, the Governor signed SB-71, raising the 2024 ceilings for small claims from $10,000 to $12,500 and for limited civil cases from $25,000 (set in 1986) to $35,000. So, voila, plus ça change.