December 17, 2010

When seeking review, whether the Court of Appeal opinion is published might matter even more than you think

If you’ve practiced before the California Supreme Court for long, you know that the publication status of a Court of Appeal opinion substantially affects your chances of obtaining review. This makes sense because the Supreme Court is tasked with “secur[ing] uniformity” in California law (Cal. Rules of Court, rule 8.500(b)), and no conflict can exist except among published decisions. You probably also suspect that your chances of securing review may be enhanced if the Court of Appeal opinion includes a dissent by one of the justices. Dissents are important for the obvious reason that if learned appellate jurists can disagree about the result, it may be worthwhile for the Supreme Court to grant review, especially where the dissent relies on a line of authority at odds with that cited by the majority opinion.

We thought it would be worthwhile to determine just how much these factors impact the prospects of obtaining review. We went back and reviewed all civil decisions in which review was granted between January 2008 and December 1, 2010. With regard to the importance of publication status, the results were somewhat surprising. In that nearly three-year period, the Court granted outright review (excluding grant-and-holds) in 96 civil cases. Of those appellate decisions, only 12 were unpublished. This means that, in recent years, review of a published decision has been granted seven times for every one time that review of an unpublished opinion has been granted.

What makes this ratio even more extraordinary is that most Court of Appeal decisions are unpublished. According to the 2010 Court Statistics Report, just 18 percent of opinions in civil cases were published in fiscal year 2008-2009. Based on that figure and other data in the report, we strongly suspect that a majority of petitions for review are from unpublished Court of Appeal decisions. So, from a purely statistical viewpoint, if you’re seeking Supreme Court review of an unpublished appellate decision, it probably behooves you to tell your client that the odds of obtaining review are long indeed.

The statistics are arguably less startling for dissents. In 2010, of the 36 civil cases in which outright review has been granted, eight have included dissents. Relatively few Court of Appeal decisions include dissents, so the fact that more than 22 percent of cases in which review has been granted this year involve a dissent is noteworthy. But dissents were less prominent in 2008 and 2009. In 2009, of the 15 civil cases in which review was granted, just one included a dissent. In 2008, out of 45 civil cases in which review was granted, there were only three dissents. And, of course, we should mention that our lack of any statistics on the total number of opinions involving dissents in which review was denied limits our ability to assess their importance in helping to secure review.

On the whole, these statistics bear out what we have thought all along: the publication status of a Court of Appeal decision matters a great deal to whether review is granted, while the presence of a dissent is likely an important contributing factor. However, these statistics don’t tell the whole story. Published Court of Appeal opinions are more likely to present important and unsettled issues of law, or to disagree with opinions of other Courts of Appeal; that is why those opinions are published. (See Cal. Rules of Court, rule 8.110(c) [setting forth standards for publication of an appellate opinion, including whether the opinion “[e]stablishes a new rule of law”; and “[a]ddresses or creates an apparent conflict in the law”].) It is therefore not surprising that review of those decisions is granted much more frequently than in more run-of-the-mill unpublished decisions. The same can be said for dissents: they are more likely to be written where the law is unsettled or in conflict, which dramatically increases the chances that review will be granted.

Finally, a note about our analysis. We would be remiss if we did not point out that our suspicion that a majority of petitions for review are filed from unpublished Court of Appeal decisions is based on data that includes some important unknown variables. We know that 1,320 petitions for review were filed in fiscal year 2008-2009. We also know 3,226 civil appeals were resolved by written opinion in the same period, of which 18 percent, or about 581, were published. We thus base our suspicion in part on the fact that 581 is well less than half of 1,320. While we know that some published opinions are not followed by a petition for review, we can see that even if all published opinions were challenged by petition, there would still be more petitions filed in cases with unpublished opinions. We also do not know how many of the petitions that were not from a published decision may have been filed to challenge an order of the Court of Appeal, such as the summary denial of a writ petition, or an order deeming a trial court ruling non-appealable. Such petitions contribute to the overall total but cannot be classed as originating from an unpublished Court of Appeal opinion.

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