September 19, 2013

The Judicial Council issues its 2013 Court Statistics Report as court-watchers take stock of recent developments

As noted here by the Southern California Appellate News, the Judicial Council has just issued its 2013 Court Statistics report.  According to the report, the Supreme Court issued 87 written opinions in fiscal year 2012 (which ended June 30, 2012), down from 98 written opinions in fiscal 2011.   The total number of petitions for review filed declined to 4,620 from 4,999.  That figure was matched by a slight decline in the number of filings of civil petitions for review, which were down from 1,247 to 1,203.  Original proceedings in the Supreme Court also declined in fiscal 2012 from 4,082 in fiscal 2011 to 3,581 in fiscal 2012, with a dramatic decrease in civil filings in that category from 507 to 294.

Meanwhile, as fiscal 2013 and the Court’s term recently came to an end (on June 30 and August 31, respectively), court-watchers have taken stock of the year that was.  In last month’s issue of California Lawyer magazine, Santa Clara University law professor Gerald F. Uelmen published his annual article assessing recent developments on the Court.  Uelmen noted that the Court issued 96 written opinions in fiscal 2013, an increase of nine over fiscal 2012 and more or less a return to the number issued in fiscal 2011.

Uelmen observed that the Court’s second full year under Chief Justice Tani Cantil-Sakauye saw the rates of dissent and disagreement among the justices increase markedly.  Emily Green of the Daily Journal [subscription required] concurred in an August 30 article, writing “[t]he state Supreme Court appears to be in greater ferment than in recent years, with more dissents and less bloc voting than usual.”  Uelmen reported there were seven 4 to 3 splits in fiscal 2013, up from just one in the previous twelve month period.  There were also seven 5 to 2 opinions, up from only one the previous year.  As a result, the overall dissent rate nearly tripled from 2.3 to 6.1 percent (the dissent rate for civil cases was 5.1 percent).

Uelmen made several interesting observations about the shifting alignments on the Court.  He noted, for example, that there was a different lineup in each of the Court’s seven closely divided 4 to 3 decisions ( five of which were in criminal cases).  Green echoed the point:  “The divisions that emerged largely defied categorization.  In almost all of the 4-3 and 5-2 splits, the composition of the justices’ alliances changed.”  Uelmen observed that the lowest rate of disagreement was between Justices Marvin Baxter and Ming Chin, who agreed 98 percent of the time.  The highest rate of disagreement was between the more liberal Justice Goodwin Liu and the more conservative Justice Baxter, who were on opposite sides in 15 percent of cases.  Uelmen also noted that Justices Joyce Kennard and Liu tied for the highest dissent rate at 15.5 percent but, interestingly, that they did not always dissent in the same cases and rarely joined each other’s opinions.  Uelmen further noted that Justice Liu was in agreement with Justice Carol Corrigan 94 percent of the time (despite Corrigan’s reputation as one of the Court’s more conservative jurists).  This unusual alignment prompted Uelmen to dub Liu and Corrigan “an ‘odd couple,’” and to surmise that their level of agreement stems from the fact that they often confer outside of the Court’s weekly conferences.

According to Uelmen, the Chief Justice, like her predecessor, Ronald M. George, has “staked out a very centrist position, tilting slightly to the right.”  She parted ways with Justice Chin, one of the Court’s most reliably conservative justices, in five percent of cases, and split with the more liberal Justice Liu 10 percent of the time.  According to Green, in the term ended August 31, the Chief “kept an overall low profile with her decisions” with five of her 11 opinions coming in capital cases and just two in civil cases.

In retrospect, this may well be remembered as the year that Goodwin Liu truly came into his own as a jurist.  You will recall that Governor Brown is rumored to have appointed Liu with the intention that he would be an intellectual force on the Court in the same way that the late Roger Traynor was a half century ago.  Comparisons to Chief Justice Traynor aside, Liu has found his own voice: according to Uelmen, he drafted nine opinions, 15 concurring opinions and nine dissents in fiscal 2013.  Moreover, intellectual rigor does seem to be a hallmark of his jurisprudence.  Uelmen flagged Liu’s concurring opinion in People v. Barrett (2012) 54 Cal.4th 1081, 1114-1151, as the best opinion of the year.  Not only that, but Green notes that Liu “ended the term with a bang, characterizing in two concurrences his colleagues’ approach to claims of discrimination in jury selection as lax, speculative and lopsided in favor of the prosecution.”  (See Green’s August 27, 2013 article, “Liu blasts court for pro-prosecution bias in death penalty cases,” for an in-depth discussion of those cases.  We discussed Justice Liu’s concurrences in those cases here.)

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