October 19, 2010

Protest votes in civil cases say much about the justices and the Court

As we mentioned in this post, one reason to keep an eye on our summaries of the Court’s weekly conference reports is to take note of when justices vote to grant review in cases where review is denied. Such “protest votes” can signal that the issues presented are of statewide importance and are of interest to those justices voting to grant review. This can, of course, be useful information when your client is deciding whether to file a petition for review.

So how often do the justices issue such protest votes in civil cases, and which justices do so most and least often? Well, we’ve been tracking this data since 2008. As demonstrated by this chart and graph, from 2008 through 2010, Justice Joyce Kennard has consistently led the Court in the number of protest votes she has cast, with a high of 25 in 2008. However, Justice Kennard appears to be casting fewer protest votes, as the data shows she cast just 16 in 2009 and only 13 so far in 2010. Justice Marvin Baxter, who also casts protest votes fairly often, has likewise been doing so less frequently each year.

At the other end of the spectrum is Chief Justice Ronald M. George. As far as we can tell, going back to 2008, Chief Justice George has cast no vote to grant review in a case where review was denied. What this means we can only speculate. However, it does seem likely that the Chief does not believe in signaling his belief that an issue is worthy of review unless review will, in fact, be granted.

What other trends can be gleaned from this data? Well, for one thing, the total number of protest votes in civil cases has been going down in recent years, with a total of 52 such votes being cast in 2008, 41 in 2009, and just 30 so far in 2010. What accounts for this significant decline? One possibility is the Court’s concern over the size of its criminal caseload, a topic we explored here, and the fact that, as a result, the Court is simply granting review in fewer civil cases overall, as we discussed in this post. If the Court is interested in taking fewer civil cases so that it can deal with its criminal backlog, the justices may see little point in signaling to the bar that a particular issue in a civil case is, in their eyes, worthy of review.

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