March 11, 2011

The California Supreme Court’s orders granting review vary significantly by appellate division, but those variations are likely attributable to differences in the number of civil opinions issued and published

Further to this post, in which we evaluated the different rates at which the Supreme Court grants review depending on the appellate district issuing the decision, we thought it would be interesting to determine whether there are discernible differences in the rate at which the Court grants review in civil cases depending on the Court of Appeal division that issued the opinion. (Keep in mind that only the First, Second and Fourth District Courts of Appeal are divided into divisions.) The results of our research were once again illuminating.

As in our previous post, we reviewed orders granting review in a three year period, January 1, 2008 to December 31, 2010. What we found is that some divisions do stand out as those in which review has been granted most often. The Supreme Court granted review of 14 decisions of the Fourth District, Division One. It granted review of 12 decisions each of the Fourth District, Division Three, and the Second District, Division Three. And it granted review of 10 decisions of the Second District, Division Eight. Contrast this with just three orders granting review in the same period in each of the following divisions: First District, Division One, Second District, Division Two, and Second District, Division Six.

Another striking fact is that, overall, it can be said that the Supreme Court granted review from decisions of the Fourth District’s divisions most often, followed by those of the Second District, and lastly those of the First District. To illustrate, two of the Fourth District’s three divisions had as many or more orders granting review (14 and 12, respectively) as the Second District division that had the most orders granting review within that district (12). But five of the Second District’s eight divisions had more orders granting review than any of the First District’s five divisions (where two divisions led their district with a modest six orders apiece).

We once again turned to the 2010 Court Statistics Report to try to explain these apparent discrepancies. We thought that perhaps they could be explained by substantial differences in the number of civil appeals disposed of by written opinion (see Courts Statistics Report, p. 32) and that is true to a large degree. In fiscal years 2007-2008 and 2008-2009, the much larger Fourth District divisions (One and Three) resolved roughly triple the number of civil appeals by written opinion disposed of by the smaller four-justice First District divisions, and more than twice as many as the four-justice divisions of the Second District. It therefore makes sense that the number of Fourth District decisions meriting review would significantly exceed those of the First and Second Districts’ divisions.

Nonetheless, certain discrepancies remain among divisions of the same size. For example, the Second District, Division Three, disposed of 307 civil appeals by written opinion in fiscal 2007-2009, while the First District, Division One disposed of 238 in the same period. Yet despite somewhat similar caseloads, four times as many Second District, Division Three opinions (12) merited review in calendar 2008-2010 than did opinions of the First District, Division One (3).

The evident explanation for this is the difference in the frequency with which these divisions publish their opinions. (As we discussed here, publication of an opinion is a key factor in whether the Supreme Court will grant review.) The Second District, Division Three, published 27 percent of its opinions in civil appeals in fiscal 2008-2009, while the First District, Division One published a smaller percentage—21 percent— of its already smaller body of opinions. (See Courts Statistics Report, pp. 29, 32.) But writ proceedings may provide the real explanation: the Second District, Division Three, published a statewide high of 45 percent of its opinions in original proceedings in fiscal 2008-2009, while the First District, Division One, published just eight percent.

To conclude, there are significant variations by division in the number of Supreme Court orders granting review in a given period. However, those discrepancies can largely be explained by differences in the number of civil appellate opinions each district generates, as well as the number of those decisions that are published.

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