October 10, 2013
Last week, the Supreme Court issued its Workload Statistics Report for the period September 1, 2012 through August 31, 2013. The report shows that the number of petitions for review and the number of total filings continue to decline. In addition, the total number of opinions issued by the Court dropped by ten from 97 to 87 when compared with last year’s report. (But note that for the fiscal year ended June 30, an increase in opinions has been noted when compared with the preceding fiscal year.)
Each year, the Workload Statistics Report is of great interest to Court watchers. So what can this year’s report tell us? To some degree, it reconfirms what we already know: this is an active court, despite the moderate (and possibly anomalous) decrease in opinions. The Court has been dealing with a number of weighty subjects this year, including gay marriage ( the Prop 8 writ petitions), medical marijuana laws (the authority of local governments to ban pot shops), cases with political overtones such as Fair Political Practices Commission v. Americans for Responsible Leadership (which involved disclosure of the identities of political donors), and novel and politically charged bar admission proceedings (such as In re Garcia).
The breakdown among recent opinions is interesting, and might signal some shifts. The number of civil opinions has gone up a whopping 37 percent from the same period a year ago (the Court issued 37 civil opinions this year, up substantially from 27 last year). The number of non-capital criminal cases was a robust 35, but that is substantially fewer than last year’s 43. And the Court decided just 18 automatic appeals from judgments of death, down from 27 last year. While we hesitate to speculate, these numbers suggest that the Court might be placing renewed focus on its civil docket. Or, conversely, the Court might be gaining a better handle on its capital docket, which has long been an administrative burden.
The report also prompts us to ask what is the cause of the generally lower number of filings and opinions? The lower number of decisions may be due to a confluence of factors: (1) as the report states at the outset, for the last few years, budget cuts and staff furloughs have hindered the flow of cases through the system, and have directly impacted the court’s productivity; (2) as the report also indicates, the Court devoted substantial resources this year to matters that did not result in the issuance of opinions (such as the writ petitions seeking reinstatement of Prop 8); and (3) as we discussed here, the rate of unanimity on the Court has fallen off, with numerous concurring and dissenting opinions, especially by Justice Liu (who penned 15 concurrences and nine dissents in fiscal 2013) and Justice Kennard. We’re speculating, but it seems possible that the increased number of concurrences and dissents has contributed to the modest reduction in the number of majority opinions. Another contributing factor, as the report indicates, may be that the Court spent more of its time in the last year on state bar matters, including “rule matters” requiring “close review” and extensive memoranda.
Another interesting figure in the report is the number of Court of Appeal opinions that the Supreme Court has ordered depublished in the last year. The Court ordered 18 opinions depublished in fiscal 2013. As we have noted, that practice had fallen out of favor under former Chief Justice Ronald M. George. But we have seen an increase each year under Chief Justice Tani Cantil-Sakauye. Ten cases were depublished in fiscal 2011, 14 in fiscal 2012, and now 18 in fiscal 2013. These statistics seem to confirm that the Court views depublication as one of the legitimate tools in its toolbox to address published decisions that are off the mark or inconsistent with the Supreme Court’s own precedent.