November 8, 2010
If you want the Supreme Court to decide a California legal issue, it helps a lot to have the Ninth Circuit make the request.
Since 1998, the Supreme Court has been authorized to decide questions of California law at the request of the United States Supreme Court, a United States Court of Appeals, or a state, territory, or commonwealth court of last resort. (See now Cal. Rules of Court, rule 8.548(a).)
Last month, the Supreme Court denied a Ninth Circuit request to decide a California legal question. The Court of Appeals shouldn’t feel too bad, however. The chances of the Supreme Court agreeing to hear a case at the Ninth Circuit’s request are much higher than the chances of a California litigant having the Supreme Court grant a petition for review after a state Court of Appeal decision.
We believe we’ve identified every Ninth Circuit request to the Supreme Court for a decision of a California legal question. (As far as we can tell, no court other than the Ninth Circuit has made a request under rule 8.548 or its predecessors.) There have been 38 of them. 26 have been granted. That’s a 68 percent grant rate. Compare that to the between 2 and 8 percent annual petition for review grant rate that we’ve written about.
UPDATE: Many thanks to appellate lawyer Ben Shatz for pointing me to additional requests that I missed and explaining that two requests have come from the Court of Appeals for the D.C. Circuit. The count I have now (which still may be incomplete) is 27 grants out of 41 requests, or almost 66 percent.