March 11, 2014
Perhaps the greatest challenge facing an appellate attorney in the California Supreme Court is to persuade the Court to grant a petition for review. The first step on that path is to convince the Court’s central staff attorney (who is tasked with reviewing the petition and preparing a conference memo) to place the petition on the “A” list for one of the Court’s weekly Wednesday conferences.
As explained in the Court’s Internal Operating Procedures, “Cases assigned to the ‘A’ list include all those in which the recommendation is to grant or take affirmative action of some kind, e.g., ‘grant and transfer’ or ‘deny and depublish,’ in which a dissenting opinion has been filed in the Court of Appeal, or in which the author believes denial is appropriate, but that the case poses questions that deserve special attention.” On the other hand, if a petition is routine, does not present an important question or involves settled law, the staff attorney relegates it to the “B” list.
It is our understanding that not all published Court of Appeal decisions make it onto the A list. However, most of the decisions on the A list for any given conference are published. We also understand that any case in which a Court of Appeal justice has dissented automatically makes the A list. This explains why, as we noted here, the Court is far more likely to grant review of published decisions and decisions with dissents.
The moral of the story, of course, is to emphasize the published status of the Court of Appeal decision in your petition for review. We often do that on the petition’s caption page by stating the petition seeks review of “a published decision of the Court of Appeal, ___ District, Division ____.” You should likewise be sure the reader is aware of any dissenting opinion, perhaps by noting the existence of the dissent in the petition’s introduction, or even in your statement of the question presented.