August 20, 2013

Taking issue with your answer to petition for review

Answering a petition for review is optional. It is sometimes unnecessary. (Supreme Court staff attorneys would probably say it’s usually unnecessary.) The court can often tell whether it wants to hear a case just by reading the Court of Appeal opinion, the petition, and the Court of Appeal briefing.

However, there’s at least one situation where the party prevailing in the Court of Appeal should file an answer, as a recent Supreme Court opinion has reminded. Should that party have an issue it wants the court to decide if — heaven forbid — the court grants its opponent’s petition for review, the party should state that issue in an answer to the petition.

In its American Nurses Association v. Torlakson opinion last week, the court held that insulin can be administered to students by school personnel who are not licensed health care providers. That’s the ruling that got a lot of press. But Supreme Court practitioners should note a procedural point made at the end of the opinion.

The American Nurses Association had prevailed in the trial court on a particular issue. When the Nurses argued the issue in the Supreme Court, the court declined to address it.

Why? For one thing, the issue wouldn’t have changed the outcome of the case. But the court started by saying, “First, the Nurses forfeited the issue in this court by failing to file, in response to the petition for review, an answer raising it.”

“Forfeited” is a strong word and should get the attention of any attorney considering whether to answer a petition for review. “Forfeited” apparently doesn’t equal “jurisdictional” — the court went on to note its “power to address additional issues ([Cal. Rules of Court], rule 8.516(b)(1))” — but it is certainly better not to forfeit in the first place.

Besides the issue-preservation function of raising an additional issue in an answer, an answer’s additional issue might serve the further purpose of weakening the petition for review. The Supreme Court could see the case as an imperfect vehicle to decide the issue stated in the petition if the answer can accurately tell the court, “the petition’s issue might be review-worthy in theory, but so what? Regardless how you resolve the issue, we win on the additional issue in this answer and, because of that, we win the whole appeal. Why don’t you wait for another case raising the petition’s issue where determination of that issue will make a difference in the result of the case?”

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