May 27, 2011

Should parties be required to file Certificates of Interested Entities or Persons when seeking or opposing review in the California Supreme Court?

Rule 8.208 of the California Rules of Court provides that a party must file a “Certificate of Interested Entities or Persons” in the Court of Appeal with its first motion, application, opposition or principal brief. (Cal. Rules of Court, rule 8.208(d)(1).) The purpose of the rule “is to provide justices of the Courts of Appeal with additional information to help them determine whether to disqualify themselves from a proceeding.” (Cal. Rules of Court, rule 8.208(a).) No doubt rule 8.208 is laudable, as it guards against judicial conflicts of interest and even the appearance of impropriety in judicial decision-making. The certificate allows the justices to identify a conflict that may be lurking due to the involvement of persons or entities whose interest in a matter is not obvious from the caption page on the briefs. What seems anomalous, however, is that the Supreme Court requires no such certificates when ruling on petitions for review.

Rule 8.208 applies only in the Court of Appeal. (Cal. Rules of Court, rule 8.208(a), (d)(1).) The Supreme Court has a similar rule in its Internal Operating Practices and Procedures. That rule, however, requires a party to file a Certificate of Interested Entities or Persons only “after review is granted in a civil case . . . . in which a corporate entity is a party . . . .” (Sup.Ct. Int.Op.Prac. & Pro. §IV(L).) A party need not include a certificate with its petition for review.

It may not perhaps be feasible for the Court to check the potential conflicts of all seven justices with respect to every petition for review filed. After all, 1,320 civil petitions for review were filed in fiscal year 2008-2009. The court would have had to perform at least 9,240 conflicts checks in civil cases that year simply to rule on petitions for review—and many more, if certificates containing additional names were attached to answers to those petitions. A daunting task, to be sure. But as we have previously noted here and here, the justices do sometimes have conflicts that require them to recuse themselves from consideration of a case on its merits. And the rules contemplate that a Court of Appeal justice will use a certificate to recuse himself or herself from ruling on even a preliminary motion or application. (Cal. Rules of Court, rule 8.208(d)(1).) Therefore, putting aside the important issues of feasibility and cost, an argument could be made that parties should file Certificates of Interested Entities when seeking or opposing Supreme Court review. As it stands, the justices do sometimes apparently recuse themselves at the petition stage, but probably only when a conflict is obvious from the listing of party names in the caption.

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