Appeals and Writs

JurisdictionCalifornia,United States
AuthorBy Barbara Biagas, Syda Cogliati, Karli Eisenberg, Katy Graham, Herb Fox, Paul Killion, Mike Mongan, and Greg Wolff
CitationVol. 2016
Publication year2016
Appeals And Writs

By Barbara Biagas, Syda Cogliati, Karli Eisenberg, Katy Graham, Herb Fox, Paul Killion, Mike Mongan, and Greg Wolff

California Supreme Court Practice and Procedure
Dissenting Statement on Denial of Review

Typically, the California Supreme Court's orders denying review are short one-liners. Not since the 1950s have California Supreme Court Justices issued dissenting statements in such orders. But that practice may be changing.

When the Supreme Court denied review of the decision in Vergara v. State of California (2016) 246 Cal.App.4th 619, 627, which had reversed a trial court ruling declaring unconstitutional and void five sections of the Education Code that govern tenure, retention, and dismissal of public school teachers, the Supreme Court's order noted that Justices Chin, Liu, and Cuéllar would have granted review.1 In addition, Justices Liu and Cuéllar issued lengthy separate dissenting statements explaining why they believed review should have been granted.2 Last year, Justice Liu (joined by Justice Kruger) issued another written dissent from the denial of review in In re Joseph H. (2015) 237 Cal.App.4th 517.3

These dissenting statements prompted the following statement from Chief Justice Cantil-Sakauye, on behalf of the entire court, explaining the significance of such separate statements: "The court, recently having resumed issuing, from time to time, statements by one or more justices dissenting from the denial of a petition for review, has adopted a policy that such statements, when they pertain to an appellate court opinion that has been published in the Official Reports, will also be published, appended to the original appellate court opinion in the Official Reports. With these policies now in place, separate statements will afford members of the court an opportunity to express their views regarding the denial of a petition for review, but of course any separate statement represents the views solely of the authoring justice or any justice signing the statement. In addition, it remains the case that an order denying review does not reflect the views of the justices voting to deny review concerning the merits of the decision below. Rather, an order denying review represents only a determination that, for whatever reason, a grant of review is not appropriate at the time of the order. (See People v. Davis (1905) 147 Cal. 346, 349-350 [81 P. 718]; see also, e.g., People v. Triggs (1973) 8 Cal.3d 884, 890-891 [] 106 Cal.Rptr. 408, 506 P.2d 232].) Similarly, that a justice has not prepared, responded to, or joined a separate statement should not be read as reflecting the views of that justice concerning any separate statement that has been filed by any other justice."4 Stay tuned to see whether such dissenting statements become a regular part of the court's practice, or remain occasional occurrences.

New Rule - Go Ahead and Cite that Review-Granted Case!

There's a major change in what happens to a Court of Appeal's published decision when the Supreme Court grants review. It used to be that a grant of review automatically depublished the Court of Appeal opinion, but no more. Rule 8.1105(e)(1)(B) of the California Rules of Court now provides that a Court of Appeal decision taken up by the Supreme Court remains published after a grant of review, but "must be accompanied by a prominent notation advising that review by the Supreme Court has been granted." Further, while review is pending in the Supreme Court, "a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for potentially persuasive value only." Rule 8.1115 also was amended to permit the citation of published appellate cases in which review has been granted. The citation must "note the grant of review and any subsequent action by the Supreme Court."5

The Supreme Court retains the discretion to depublish all or part of the opinion from the Court of Appeal after granting review.6 Since the rule change went into effect on July 1, 2016, the Supreme Court has not depublished an appellate decision following an outright grant of review. While it remains to be seen under what circumstance it will do so, in one recent case the Supreme Court granted a party's depublication request after it granted review and transferred the matter to the Court of Appeal for reconsideration in light of other authority.7

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Once a matter under review is decided by the Supreme Court, the Court of Appeal's opinion becomes fully revived and may be cited as precedent to the extent it is consistent with the opinion of the Supreme Court.8 (This rule also applies to published opinions that were on grant-and-hold status.) This means that any aspect of the Court of Appeal opinion not addressed by the Supreme Court, springs back to its former life and becomes once again fully citable as binding law and is no longer just "persuasive" — as it was while the case was pending on review. This change brings California into line with the practice in 47 other states and the federal courts.

Requests to Decide a Question of Law

One of the more difficult aspects of California Supreme Court practice is simply getting to the court. In a typical year, the court receives over 1,000 petitions for review in civil matters, over 3,000 petitions for review in criminal matters, and another 3,000 original proceedings. (See generally Only a fraction of those— perhaps 75 cases—are granted outright, and a few dozen more are granted and held for existing matters under review or granted and transferred back to the Courts of Appeal for further consideration. A sister court's request for the Supreme Court to decide a question of law, however, provides an unusual but far more likely path to review.

Under Rule 8.548, a federal appellate court or state court of last resort may ask the California Supreme Court to decide a question of law in a matter where the issue could determine the outcome of the case and there is no controlling precedent. Typically, the California Supreme Court receives such requests from the Ninth Circuit, but over the years other fed-eral courts of appeals have made such requests, and theoretically any state supreme court or the United States Supreme Court could present a Rule 8.548 request to the California Supreme Court. When they do, the odds are very good that the request will be granted. A review of the court's caseload for the past 10 years shows the California Supreme Court has received 40 such requests to decide a question of law. The vast majority arose in civil cases—only four requests involved criminal law questions. Of those 40 requests, 30 were granted. This 75 percent grant rate presents a scenario far different from the typical litigant's petition for review from a California appellate court decision.

The past year was no different. In 2016, internal court records indicate the California Supreme Court received four Rule 8.548 requests to decide questions of law; they were all civil matters, and the Supreme court granted three of them, and granted and held the fourth case for a matter already under consideration by the court. As in other years, the type of cases granted review under Rule 8.548 range in subject matter. In 2016, the granted cases involved a wage and hour dis-pute,9 a bankruptcy court matter addressing the rights of a dissolved law firm to matters that were in progress at the time of the dissolution,10 an insurance question requested from the Ninth Circuit,11 and an insurance question requested from the Second Circuit.12

While the California Supreme Court does not appear to favor any particular subject matter when considering whether to grant another court's request to decide a question of law, other factors can be determinative of success. First, while the court's decision need not dispose of the entire case, the court is not likely to accept a request where the court's decision would not be dispositive of the issue presented. The court may also reject requests where there are factual or procedural impediments, such as questionable standing of parties or missing parties. Nor is the court likely to accept the request if there are existing authorities providing adequate guidance, whether those cases are authored by the court itself or the California Courts of Appeal. Indeed, in one case, the Supreme Court denied a request to decide a question of law with a speaking order that described California law on the issue raised and provided citations to existing authority.13 Occasionally, the California Supreme Court will grant the request but restate the issue in its own language, as it did this year in Migdal Insurance Co. v. Insurance Co. of the State of Pennsylvania, No. S236177. In one peculiar situation, the Supreme Court issued an order asking the Ninth Circuit to clarify the question it had submitted in light of one of the Ninth Circuit's own decisions, but ultimately the Supreme Court denied the request.14

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Denials by way of speaking order or after tossing questions back to the requesting federal court seem to be statistical outliers, however, and the numbers suggest that a request to decide a question of law pursuant to Rule 8.548 presents a likely path to the California Supreme Court. A successful request will be one: that involves an issue where it is uncertain under existing authority how the state Supreme Court ultimately would decide the question; where there are no apparent factual or procedural impediments; and where the question will at least dispose of the issue among the parties even if it does not dispose of the entire case. Under those circumstances, counsel for a party in a federal appellate court or state high court may want to urge the court to send the issue to the California Supreme Court for resolution.

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