March 19, 2014
As we recently discussed in this post, in a petition for review it is worthwhile to emphasize that you are seeking review of a published decision, and also to highlight any dissent from the Court of Appeal’s decision. Our post prompted a helpful email exchange with one of our readers, Norm Vance, Director of the Supreme Court’s Criminal Central Staff. Mr. Vance shared with us the following thoughts concerning petitions for review (the views expressed are Mr. Vance’s personal views, and not an official statement on behalf of the Court or the justices):
“The fact that an opinion is published is neither a necessary nor a sufficient condition for a grant of review. It certainly increases the odds that the case will be placed on the Court’s A List, but the vast majority of cases on the A List have a ‘denial’ or ‘denial submitted’ recommendation—essentially meaning that the conference memo author thinks the [Court of Appeal] got it right or at least reached a reasonable/defensible result.” Mr. Vance added: “The converse may be more important: the fact that an opinion is not published can be a significant bar to a grant of review, if not a reason for denying review in and of itself in a given case.” (ATL note: These remarks are borne out by the Judicial Council’s statistics, which show the Court grants review of published decisions far more often than it grants review of unpublished decisions even though it receives more petitions seeking review of nonpubs.)
Regarding dissents, Mr. Vance shared the following: “The fact that there is a dissent in the [Court of Appeal] is a slightly more nuanced consideration. The court accords respect to the dissenting justice’s position by ensuring that the case is eligible for discussion at the conference (cases on the B List are not open for discussion unless elevated), but the main significance of a dissent . . . is that it provides a reasoned response to/critique of the majority—as should a well-crafted petition for review.”
As you would expect, Mr. Vance explained that the Court’s staff attorneys always read the Court of Appeal opinions before preparing their conference memoranda, so the opinion’s publication status and any dissent “are pretty hard to miss.” In any case, he wrote, the staff attorneys do not rely on the petition for review to determine an opinion’s publication status. (And, Mr. Vance tells us, counsel frequently misstate the opinion’s publication status.) For these reasons, Mr. Vance suggests that, rather than focus on fairly obvious facts such as publication status and the existence of any dissent, counsel should focus their petitions on why review should be granted and not simply “parrot[ing] the arguments raised in the [Court of Appeal] briefs.”
We appreciate Mr. Vance’s insights and have no doubt that the Court’s staff attorneys readily note an opinion’s publication status and any dissent. That said, his remarks are consistent with our view that the opinion’s publication status and any dissent are key facts to emphasize when arguing why review should be granted. For example, a petition should emphasize that, because the Court of Appeal’s opinion is published, it creates or deepens a conflict among the published case law. Likewise, counsel should employ a persuasive dissent to support an argument that the Court of Appeal’s majority opinion is not well reasoned.