Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions

In a program hosted by the Appellate Courts Section of the Los Angeles County Bar Association yesterday (see here), Supreme Court Justice Leondra Kruger and Ninth Circuit Judge John Owens discussed the federal appeals court’s occasional requests to the state high court for help in deciding questions of California law.  Buchalter shareholder and appellate lawyer M.C. Sungaila moderated.

Judge Owens said it’s a “tricky” decision whether to ask the Supreme Court to answer a state law question.  On the one hand, he said, it slows down the Ninth Circuit’s resolution of an appeal when it puts a case on hold pending a Supreme Court decision, and also the Ninth Circuit is hesitant to impose on a busy Supreme Court by adding to the latter’s caseload.  On the other hand, Owens said he doesn’t want to mess up California law, especially given the national and international prominence of the state’s legal system and economy.

Justice Kruger humorously, but sincerely, responded it was “lovely to hear” that the federal court doesn’t want to impose, and she acknowledged the Ninth Circuit is “judicious” about referring cases.  In fact, the Ninth Circuit has sent only eight cases in the last three years, the most recent just last week.  Most requests for answers are granted — for example, the Supreme Court has granted 11 of the last 12 Ninth Circuit requests (not counting last week’s, which is pending), dating back to July 2018.

The judges also talked logistics.

Owens said his court rarely decides before oral argument to ask the Supreme Court for assistance.  Often, that decision is made sua sponte, not on a party’s suggestion.  Owens offered that it might not be the best idea for a party to ask at all since he might interpret the request as a sign the party has a losing position.  He also recommended that, if a request is made, it should be made in a brief, not in a motion.

Kruger disclosed that the Supreme Court handles Ninth Circuit requests like petitions for review, meaning one of the court’s central staffs of attorneys will work up the requests for the justices.  Additionally, the court treats an accepted case as any straight-granted case, meaning the case won’t be expedited unless there’s a specific timing reason to do so.

However, Ninth Circuit referrals aren’t the same as straight-granted cases in all ways.  Kruger said the Supreme Court justices “want to stay in our lane,” so they will stick to answering the posed question(s) without relitigating, for example, whether an issue was waived.  And the court will not apply the law it states to the facts of the case, but will leave that to the Ninth Circuit once the question is answered.  Kruger also said that, in deciding a Ninth Circuit referral case, she will review not only the Supreme Court briefing, but the Ninth Circuit briefing and excerpts of record.


Rule 8.548

The shadow docket . . . of California’s Supreme Court, part 2

Asked and answered:  California Supreme Court responses to Ninth Circuit questions

The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions

Ask not what the Supreme Court can do for the Ninth Circuit

Requesting the Ninth Circuit to request, not certify

Not (necessarily) so fast: the Supreme Court sometimes holds off on issuing its remittitur

In most cases, the Supreme Court will give up jurisdiction over a case by issuing its remittitur as soon as “a decision of the court is final.”  (Rule 8.540(b)(1).)  But rule 8.540(c)(2) provides another option:  “On a party’s or its own motion and for good cause, the court may stay a remittitur’s issuance for a reasonable period.”

The same rule also allows the court, on motion and for good cause, to recall a remittitur that’s already issued, but, as the comment to rule 8.540’s predecessor explained, “in accord with the case law, ‘good cause’ . . . has substantially different meanings depending on whether it is applied to a stay or to a recall of a remittitur.  (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 735- 741, pp. 764-771.)”

The current edition of Witkin says that, for a stay of a remittitur, “The main reason is to allow an opportunity for further review in the United States Supreme Court.”  (9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, § 874.)

We were reminded of this when we wrote about the pending certiorari petition in Reilly v. Marin Housing Authority.  After the court’s August 2020 decision in the case, but before it became final, the losing party filed this motion to stay the remittitur’s issuance.  Despite opposition to the motion, the court granted the motion “to permit appellant to file a petition for writ of certiorari with the Supreme Court of the United States.”  The court’s order further provided, “Upon the filing of that petition, the issuance of the remittitur is further stayed until final determination of the certiorari proceeding.  If a petition for writ of certiorari is not submitted within the time prescribed, this stay will terminate when the time for submitting the petition has expired.”

The certiorari petition was filed in January 2021.  Today, ten months later, the petition is still pending and the California Supreme Court’s remittitur has yet to issue.

Seeking Supreme Court review of interlocutory Court of Appeal rulings

Last week, the Supreme Court denied petitions for review (here, here, and here) that challenged Court of Appeal orders denying attorney pro hac vice applications (here, here, and here).  That’s not particularly newsworthy, but it is a reminder that it’s perfectly OK to seek review of all sorts of rulings made in the middle of an appeal or appellate writ proceeding.

Rule 8.500(a)(1) says you can ask for review “of any decision of the Court of Appeal, including any interlocutory order, except the denial of a transfer of a case within the appellate jurisdiction of the superior court.”  (Emphases added.)

Before the rule was renumbered, its unabridged Advisory Committee Comment (which is no longer easily available) explained:

Although subdivision (a) of the former rule authorized the Supreme Court to review only “decisions” of the Court of Appeal, the Advisory Committee Comment to the 1985 revision of the rule explained that under the rule “[t]he Supreme Court may review Court of Appeal interlocutory orders and orders summarily denying writs within their original jurisdiction, as well as decision[s] on the merits resolving the ultimate outcome of the cause.” Under revised rule 24(b)(2)(A) [see current rules 8.264(b)(1), 8.490(b)(1)], a summary denial of a writ petition is a “decision” of the Court of Appeal; but no rule tells litigants that for purposes of this rule an interlocutory order of the Court of Appeal — such as an order denying an application to appoint counsel, to augment the record, or to allow oral argument — is also a “decision” that may be challenged by petition for review. To make this point clear, revised subdivision (a)(1) expressly states that a party may file a petition to review interlocutory orders of the Court of Appeal. It is not a substantive change.

Of course, just because you can seek review of an interim order, doesn’t mean the Supreme Court will grant your petition.  In fact, I can’t remember offhand the last time that happened.

Bankruptcy stay suspends Supreme Court’s time to rule on a petition for review, but how long does the court have to rule after the stay ends?

It took an unusually long time for the Supreme Court to rule on the petition for review in Wood v. Superior Court, reported yesterday.  The petition was filed on May 21, 2020.  But it wasn’t until this week that the court denied the petition (with three recorded votes to grant, by the way).

Rule 8.512(b) gives the court 60 days to rule, plus an optional 30-day extension, and a petition is deemed denied if there’s no ruling within that time.  Under normal circumstances, the Wood petition should have been decided before the end of August.

The reason for the delay was the filing of a notice of bankruptcy stay (see 11 U.S.C. § 362) less than two weeks after the petition was filed.  The Supreme Court said in Wood that the notice “operates as an automatic stay in this proceeding and the applicable time periods of rule 8.512(b) . . . are hereby suspended.”

When the bankruptcy stay was lifted five months later, the court ordered on November 6:  “the applicable time period of rule 8.512 (b) must begin to run anew from the date of this order.”  The court later granted itself a 30-day extension and the denial this week came 75 days after the November 6 order.

I’m not at all well versed in the law of bankruptcy stays, but it’s not clear why the court’s time to rule started to “run anew” instead of being, under 11 U.S. C. § 108(c), only 30 days from the stay’s termination.  The latter is apparently the timing for a superior court to rule on a new trial motion that is pending during a bankruptcy stay.  (ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 118 Cal.App.4th 1031, 1039–1040.)


Time to tweak the rule about the time to rule?

The Supreme Court doesn’t decide all important issues

A frequently invoked ground for Supreme Court review of a case is when it is “necessary . . . to settle an important question of law.”  (Rule 8.500(b)(1).)  But offering the court an important legal issue is not alone enough to get a case heard.  The emphasis is on the “necess[ity]” to “settle” the important question.  Sometimes, the court is just fine with the way the Court of Appeal has settled the issue.

Take the constitutionality of Senate Bill 1437, for example.  That 2018 legislation, which scales back the felony-murder rule and the “natural and probable consequences” doctrine, has been attacked by various district attorneys around the state as an invalid amendment of several voter initiatives and as a violation of the separation of powers.  Some superior court judges even agreed with those district attorneys, ruling SB 1437 to be in violation of the state constitution.

The contested legality of a statute making a significant change to the state’s criminal law, that’s certainly “an important question of law.”  But is it one that is “necessary” for the Supreme Court “to settle”?  Apparently not.

The court has consistently declined review of the constitutional issue, even while regularly taking cases to interpret the legislation’s terms and directing the Courts of Appeal to decide the constitutional issue.  (See, e.g., here, here, here, here, here, and here.)

Why?  There are two probable reasons.  First, the Courts of Appeal have all upheld SB 1437’s constitutionality (see People v. Marquez (2020) 56 Cal.App.5th 40, 47, and cases cited there), albeit sometimes by a divided vote (People v. Lippert (2020) 53 Cal.App.5th 304, review denied).  Second, California’s Attorney General has publicly vouched for the statute’s validity, filing amicus curiae briefs opposing the district attorneys’ arguments (e.g., LippertPeople v. Bucio (2020) 48 Cal.App.5th 300, review denied).

It’s a good bet that if either a Court of Appeal held or the Attorney General argued that SB 1437 is unconstitutional, the Supreme Court would have found it “necessary . . . to settle” the question.

The SB 1437 situation is very similar to the dispute about the validity of Senate Bill 1391, which prevents prosecutions in adult criminal court of crimes committed by anyone under 16 years old.  But there is one telling difference.  As with SB 1437, some district attorneys claimed — and some superior courts agreed — that SB 1391 violated the state constitution by improperly amending a voter initiative, and the Supreme Court was denying review when the Attorney General was defending the statute and the Courts of Appeal were consistently upholding it.  (See here.)  But then one Court of Appeal struck down the law and essentially forced the Supreme Court’s hand.  (See here and here.)  The SB 1391 case was argued last month.

Another case further illustrates the point that not every “important question of law” is one that is “necessary” for the Supreme Court to settle — Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, in which Horvitz & Levy prevailed on a significant issue regarding vicarious disqualification of a law firm.  When the other side petitioned for review, an answer prepared by Horvitz & Levy partners Lisa Perrochet and David Axelrad explained why review was not needed:  “While it is an important issue, intermediate appellate courts decide all manner of important issues.  And sometimes, those decisions offer clear and complete reasoning that stands the test of time, outlining sound legal standards on which other courts and litigants confidently rely.”  The answer included a footnote citing to five landmark Court of Appeal opinions.  The Supreme Court denied review, although there was one recorded vote to hear the case.

Another reminder that your audience at the Supreme Court is not only the justices

Here’s another for the “you’re not writing only for the justices” file.  (Previously, see here, here, here, and here.)

Berkeley Law student Rodolfo Rivera Aquino writes on the school’s website about his 12-week pandemic-summer externship with Justice Leondra Kruger.  He says he worked “primarily on petitions for review, calendar memoranda (draft opinions), and preliminary responses (response by a justice to a circulating opinion).”

Aquino details extern responsibilities for petitions for review:  “Each week, externs were assigned a petition that revolved around a legal issue that could go either way.  We had a week to analyze the petition and provide a recommendation to the justice, in a virtual meeting, about how she should vote in the coming conference meeting (where justices decide whether to grant review).”  He says he “had the opportunity to help shape the law through recommendations.”

In the movie “Philadelphia,” Denzel Washington plays a lawyer whose memorable catchphrase is, “explain this to me like I’m a 4-year-old.”  Sometimes, it might not be a bad idea to write your petitions for review as if you’re explaining your case to a law student extern.

The double-edged sword of a publication request

When a Court of Appeal issues an opinion that’s unpublished, and most opinions are, rule 8.1120 permits that court to entertain a publication request.  Anybody can make the ask, not only the prevailing party, but a request does come with a degree of risk.

When telling the Court of Appeal why its opinion deserves to be preserved for posterity in the Official Reports, you might also help make the losing party’s case why the Supreme Court should grant review, and review not only exposes the opinion’s result to possible reversal but also normally strips the opinion of its binding effect while the case is pending in the high court.

It’s fair game for a party petitioning the Supreme Court for review to rely on language in a publication request, and a petition for review might be enhanced by doing just that.  Rule 8.1120(a)(2) requires a request to state “the reason why the opinion meets a standard for publication.”  Significantly, the publication standards (rule 8.1105(c)) often align quite nicely with the grounds for review (rule 8.500(b)).

For example, an opinion should be published if it “[a]ddresses or creates an apparent conflict in the law” or if it “[e]stablishes a new rule of law.”  These, of course, mirror the most fertile grounds for review — “When necessary to secure uniformity of decision or to settle an important question of law.”

Also, it’s easy to cite a publication request in a petition for review.  No judicial notice motion should be necessary because the request will be in the Court of Appeal’s record that is sent to the Supreme Court after the petition is filed (rule 8.512(a)).

So, go ahead and ask the Court of Appeal to publish its opinion.  But be aware that it might be harder to then tell the Supreme Court in an answer to a petition for review that the opinion is no big deal and doesn’t merit the court’s attention.

Just the facts in the Supreme Court, again

Two years ago, we discussed the importance of petitioning for rehearing in the Court of Appeal if the statement of the case in that court’s opinion is unsatisfactory and if you’re planning to petition the Supreme Court for review.  The catalyst for the tip was rule 8.500(c)(2), which provides that “as a policy matter the Supreme Court normally will accept the Court of Appeal opinion’s statement of the issues and facts unless the party has called the Court of Appeal’s attention to any alleged omission or misstatement of an issue or fact in a petition for rehearing.”

A reminder of that rule and the policy it states popped up in one of the court’s three decisions yesterday.  In Barefoot v. Jennings, Justice Ming Chin started the opinion‘s “Factual and Procedural History” section like this:  “Because no party petitioned the Court of Appeal for a rehearing, we take this factual and procedural discussion largely from that court’s opinion.”

Consider this your biennial warning.

Wednesday conference includes unusual court split on appellate procedure issue, grant to decide clear-and-convincing-evidence standard of review

At the Supreme Court’s Wednesday conference, a divided court issued a grant-and-transfer order in M.U. v. Superior Court.

Most grants of review, including grant-and-transfers, are unanimous.  Occasionally, one or two justices will simply not vote with their granting colleagues, as has happened recently (see In re Harris below, and also here and here), but it’s quite unusual to have justices affirmatively record a vote against a grant.  In fact, it appears that the court’s internal practices and procedures provide for a dissenting recorded vote only when a petition for review is denied.  (Several months ago, the court adopted a policy of allowing justices to record dissenting votes when the court recommends clemency at the governor’s request.)

In M.U., however, Chief Justice Tani Cantil-Sakauye and Justices Ming Chin and Carol Corrigan recorded votes to deny the petition for review.  Justices Goodwin Liu, Mariano-Florentino Cuéllar, Leondra Kruger, and Joshua Groban voted to grant and transfer.

The dispute among the justices concerned a procedural issue.  A minor filed a writ petition in the First District, Division One, Court of Appeal, challenging an order transferring the minor from juvenile to criminal court.  (See here, here, and here.)  The appellate court denied the petition “for failure to provide a record sufficient to enable informed appellate review.”  The problem was the lack of a reporter’s transcript or a declaration summarizing the relevant proceedings, a deficiency which the court gave the minor’s counsel opportunities to fix before denying the petition.

The Supreme Court order directs the Court of Appeal to “reconsider the matter in light of the reporter’s transcript, which counsel for petitioner has informed this court is now available, provided that petitioner lodges the record within seven days from the date of this order.”

Practice pointer:  when petitioning for writ relief, just comply with rule 8.486(b) and don’t count on the Supreme Court to bail you out.  In M.U., the majority might have thought it better to have the transfer issue reviewed on the merits now rather than in the context of a later habeas corpus petition claiming ineffective assistance of counsel.  (If so, the reasoning is similar to the impetus for changing the court’s grant-and-hold philosophy in criminal cases four years ago.)  That factor won’t be a consideration in a civil case writ petition.

Other conference actions of note included:

  • The justices were unanimous in granting review in Conservatorship of O.B., and they limited the issue to, “On appellate review in a conservatorship proceeding of a trial court order that must be based on clear and convincing evidence, is the reviewing court simply required to find substantial evidence to support the trial court’s order or must it find substantial evidence from which the trial court could have made the necessary findings based on clear and convincing evidence?”  The court’s decision will likely resolve a split of authority on this same issue in punitive damage cases.  The Second District, Division Six’s published opinion in O.B. held, “’The “clear and convincing” standard . . . is for the edification and guidance of the trial court and not a standard for appellate review.'”
  • The court denied review in People v. Servin, but depublished the opinion by the Fourth District, Division Three.  In a matter challenging the denial of a compassionate prison release, the appellate court issued its opinion even though the defendant had died during the appeal’s pendency.  The court said it was doing so “to make two points: (1) the statutory requirements and the standard of appellate review explained in Martinez v. Board of Parole Hearings (2010) 183 Cal.App.4th 578 apply in all cases under section 1170(e), whether the defendant or the People appeals; and (2) to alert the Attorney General and the criminal defense bar to the necessity of immediately advising the appellate court of the time exigency and the need for calendar preference in compassionate release cases.”  Points made; but they won’t be in the official reports.
  • In In re Harris, the court issued an order to show cause, returnable in the Court of Appeal, whether the habeas corpus petitioner is entitled to relief “because there was insufficient evidence to support the November 4, 2016 decision by the Board of Parole Hearings to rescind petitioner’s parole grant.  (See In re Powell (1988) 45 Cal.3d 894, 904.)”  Justice Chin did not vote in favor of the order, but he did not formally record a dissenting vote.  (See M.U. v. Superior Court above.)
  • There were six criminal case grant-and-holds.

What to expect when you’re expecting oral argument

The most unpredictable factor in the life of a Supreme Court case is when oral argument will be scheduled after briefing is complete.  (See here and here.)  Two years ago, however, the court took some of the surprise out of the process by starting to send letters alerting counsel that the court would soon set argument and asking if there was good cause to not schedule the argument on particular upcoming calendars.  The court later revised the letter to include a detailed explanation of what does and does not constitute good cause.

For counsel believing there is good cause to not set argument on a calendar, there are two pieces of advice.  First, respond quickly, within seven days of receiving the court’s letter.  For example, the court rejected as untimely one request that was filed 15 days after the court sent its oral argument letter.  Second, pay attention to what the court considers good cause.  There have been numerous cases where the court has told counsel that a request to avoid certain argument dates “is not supported by good cause.”  (See, e.g., here and here.)

So, how long after the court sends an oral argument letter will the court actually schedule argument if counsel does not make a good-cause request to avoid a certain calendar?  It varies.  But, from looking at all the cases argued since the court started sending the letters, more cases than not are argued two to three months after the letter goes out.

There are a significant number of outliers, however.  For example, in In re Ricardo P., the court sent an oral argument letter in April 2017, saying that argument could be set “on the September 2017 calendar or thereafter.”  The emphasis in that letter is definitely on “thereafter,” because, now 15 months after sending the letter, the court has still not scheduled argument.  We also saw at least 13 cases where argument wasn’t held until 150 to 419 days after the letter was sent.

Also, don’t necessarily take at face value what the court states as the earliest possible argument calendar.  For example, in Ramirez v. City of Gardena, which the Los Angeles Times wrote about today, the court’s April 10 letter said argument could be set “on the September 2018 calendar or thereafter,” but the case was then scheduled for June.


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