February 17, 2011
The California Supreme Court’s orders granting review in civil cases generally track the number of civil opinions issued by each appellate district, except . . .
As this graph shows, we’ve reviewed all civil cases in which review was granted during the three years between January 2008 and the end of December 2010 to determine if the Supreme Court is more or less likely to grant review depending on which appellate district issues the opinion. Assuming a relatively even rate of review from each district, we expected to see a strong correlation between a district’s caseload on the one hand, and the number of times the Supreme Court grants review of opinions from that district.
We found such a correlation to exist. For example, the Second District, the state’s largest in terms of both appellate filings and number of justices, has had the most petitions for review granted in civil cases, with 56. This is consistent with the fact, stated in the 2010 Court Statistics Report (pp. 30-33), that the Second District handles the most appeals, disposing of 3,964 civil appeals and writ proceedings by written opinion in fiscal years 2006-2007 through 2008-2009 (the most recent three year period for which data is available). Likewise, from 2008 through 2010 the second highest number of orders granting review in civil cases (32) took up opinions of the Fourth District, which disposed of the second highest number of civil appeals and writs by written opinion—2,782—in fiscal 2006-2007 through 2008-2009.
Based on these figures, the likelihood of Supreme Court review in a Second District civil case is 1.4 percent, while the likelihood of review in a Fourth District case is 1.15 percent. (Rates of review in First and Third District civil cases are a comparable 1.3 and 1.75 percent, respectively.) Of course, a petition for review is not filed in every case where an opinion is issued, so these percentages are not the chances of success on a petition for review, but rather the overall odds that any particular decision will be taken up by the Supreme Court.
We did note a striking anomaly, however. By far the fewest grants of review in civil cases from calendar year 2008 to 2010 involved opinions of the Fifth Appellate District, based in Fresno. The Supreme Court granted review in only two Fifth District civil cases. That figure represents just 0.33 percent of the civil cases disposed of by written opinion by the Fifth District in fiscal 2006-2007 through 2008-2009. Contrast this with 12 petitions granted in Sixth District cases in the same period. What makes this fact all the more striking is that the Fifth District disposed of slightly more civil appeals and writ proceedings by written opinion than the Sixth (603 versus 570). As a result, the Sixth District’s written civil opinions over the course of three years drew orders granting review 2.1 percent of the time—the highest in the state and more than six times the rate of review in the Fifth District.
The difference in rates of review between these two districts could be due to several factors, including differences in the type of civil cases being litigated—with resulting differences in the number of issues presented that are worthy of review (e.g., more cases involving settled principles of law in the more rural Fifth and more cutting edge technology issues in the Sixth). But one might expect that any such disparity in subject matter would be reflected in a marked difference in publication rates. That is not reflected in the data. To the contrary, the Fifth published 22 percent of its opinions in civil appeals in fiscal 2008-2009, while the Sixth published just 17 percent (see Court Statistics Report, p. 29). Another possible explanation for the disparity in rates of review is that litigants in the Sixth District—home to Silicon Valley—are simply more likely to fund petitions for review than those in the less affluent Fifth.
We also reviewed on a district-by-district basis the frequency with which Supreme Court justices cast votes dissenting from the denial of review in civil cases in calendar 2008-2010. We found that the same rough correlation exists between a district’s caseload and the number of dissenting votes from denials of review that are cast. However, the same sort of anomaly exists between the Fifth and Sixth Districts. Just one dissent from a denial of review was cast in a Fifth District case, while seven such votes were cast in Sixth District cases.