The Chief Justice on remote arguments, issue percolation, rescue missions, and opinion length [Updated with photo]

At her meeting last week with the media, Chief Justice Patricia Guerrero answered questions about such things as immigration arrests in courthouses, the Los Angeles fires, artificial intelligence, and the judiciary’s budget. (See here.) But some of her answers included tidbits of interest to appellate practitioners.

Arguing remotely

In responding to an inquiry about remote work habits of the justices and court staff, the Chief Justice segued to the court’s post-pandemic policy of giving counsel the option of appearing for oral argument by video. (See here and here.) She called the policy a positive one, but she noted, “As an advocate, I probably would be in person if I could. I think it’s more effective.”

Since the pandemic, all seven justices are usually present in the courtroom for oral arguments, but there are exceptions. (E.g., here and here.)

When the court denies review of cases with review-worthy issues

Guerrero noted the most common reasons for granting review of case: when the Courts of Appeal are split on an issue or there’s an issue of statewide importance. (See rule 8.500(b)(1).) But, she added, the court doesn’t grant review in all cases fitting that description.

At the court’s regular conferences, Guerrero said the justices will “talk about [cases] that aren’t the correct vehicle” for deciding issues. “For a variety of reasons we may not accept that case, but we’ll deny but watch” and “keep tracking,” she explained. That’s why the court “might not automatically grant [review] the first time around.”

(Related: The Supreme Court doesn’t decide all important issues; Wait for it: issue percolation, right vehicles, and legislative inaction; see, e.g., here.)

Rescue missions

Chief Justice Guerrero at her annual meeting with the press, possibly answering my question about rescue missions

The Chief Justice repeated the axiom that the Supreme Court is “not a court of error correction.” “It’s not for us to second guess the work of the Court of Appeal or try to figure out what we would have done if we were them or the trial court,” she said. However, she did allow that the court will occasionally engage in “rescue missions,” that is a review grant that wouldn’t “fit within the normal requirements” and for reasons “outside of the rules” simply to “help somebody.” (Related: “Rescue missions”: the Supreme Court sometimes is an error-correction body; see also former Justice Edward Panelli’s oral history, which Guerrero mentioned, in 17 California Legal History (2022) 403, 561 [“to suggest that we wouldn’t do what we used to call a rescue mission every now [and then] wouldn’t be correct, because sometimes you saw the error was so egregious that you just felt you really can’t live with it. So you would grant a case that really didn’t meet the [rule] standards.”])

Although agreeing rescue missions exist, Guerrero was decidedly lukewarm personally on the concept. She said, “I don’t know that I like that term.” And she added, “I understand the sentiment and sometimes I agree with it, but in my mind there are all kinds of cases where we feel bad for the parties and we would want to rescue in some sense a lot of people and it doesn’t seem fair to sometimes pick one case to rescue.” But she also admitted, “I can’t say I’ve always been consistent; . . . there [are] good reasons for it in some cases.” (For possible rescue mission examples, see here and here.)

Opinion length

Guerrero stressed the importance of the press informing the public about individual court rulings. In that context, she commented that, although opinions are readily available to the public, “in some cases, they’re a little too long for the lay person to get through.” Some might say that some court opinions are too long, period.

Supreme Court affirms and also disapproves Court of Appeal decision in wobbler case

In People v. Superior Court (Mitchell), the Supreme Court yesterday held that a superior court exceeded its jurisdiction in reducing a charged felony to a misdemeanor after a preliminary hearing and before sentencing. It also ruled that the prosecution can challenge such a reduction only by a discretionary writ petition, not an appeal, and it offers guidance for writ practice.

The court’s unanimous opinion by Chief Justice Patricia Guerrero concludes that “[t]he trial court had no authority to reduce the felony charge to a misdemeanor before it was called upon to exercise its discretion at sentencing.” About the appealability issue, the court said that “the procedural posture of the proceedings matters” and that “the People’s appeal from a pretrial order carries with it the potential for prejudicial delay in a way that the People’s appeal following trial does not.” Nonetheless, the opinion states, “a trial court’s unauthorized order reducing a wobbler offense charged as a felony to a misdemeanor is an act in excess of jurisdiction, and it is therefore reviewable by writ when the balance of interests supports the intervention of a higher court.”

Finally, the court also explained an important distinction between the effect of an appeal and the effect of a writ petition. In general, an appeal stays the challenged trial court decision, but a writ petition does not. “Except in very rare cases,” the court said, “neither the filing of a petition for writ of mandate nor the issuance of an order to show cause stays the challenged order or further proceedings in the trial court.” Thus, if a party needs to have an order put on hold pending disposition of a writ petition, they should affirmatively ask the reviewing court for a discretionary stay.

The court affirms the Second District, Division Six, Court of Appeal published opinion, but it also disapproves it “to the extent it is inconsistent with this opinion,” the inconsistency being that Division Six said the order reducing a felony to a misdemeanor was appealable.

Division Six’s opinion said it “disapprove[d]” one of its earlier decisions on the appealability issue. (People v. Superior Court (Mitchell) (2023) 94 Cal.App.5th 595, 599.) But it seems to be an open question whether a Court of Appeal can disapprove (or overrule) an opinion, as opposed to simply disagreeing with it. (See discussion of Cohen v. Superior Court here.) The Supreme Court didn’t directly answer the question, but, when it related the history of the case, instead of reporting that Division Six had disapproved the earlier opinion, it said “[t]he Court of Appeal disagreed with an earlier opinion by the same district and division.” (Emphasis added.)

Supreme Court wants you to not incorporate prior briefing

The Supreme Court occasionally includes practice tips in its opinions. It did so in today’s Golden State Water Company v. Public Utilities Commission decision (see here). The tip is about incorporating by reference earlier briefing, and the tip is: don’t. Actually, it’s more a directive than a tip.

After declining the PUC’s request to dismiss the petitions in the case as moot, the court in the Water Company case turned “to the substance of the . . . challenge to the Commission’s decision.” It then dropped this footnote:

“Unfortunately, to address that substance, the Commission’s merits brief purports to incorporate by reference portions of the Commission’s earlier briefing, which makes the merits briefing less helpful to the court than it might have been. We caution litigants to avoid this practice in the future.” (Emphasis added.)

The “earlier briefing” mentioned is apparently what the court described as “the Commission[’s] mo[tion] for dismissal on grounds of mootness or else reconsideration of our initial issuance of the writs of review,” which the court said it “denied . . . without prejudice to the Commission ‘raising arguments concerning mootness in its answer brief.’ ”

That incorporating prior briefing by reference is “less helpful to the court” is reason enough not to do it. But it could also be viewed as an attempt to evade the limitation on the length of Supreme Court briefs (rule 8.520(c)) when the incorporating brief is close to the prescribed word or page limit.

“Rescue missions”: the Supreme Court sometimes is an error-correction body

A while back, we wrote: “It is often said that the Supreme Court is not an error-correction court, meaning the court’s policy is to not use its discretionary review authority simply to fix a mistaken Court of Appeal decision. Instead, the court will normally opt to hear a case only ‘[w]hen necessary to secure uniformity of decision or to settle an important question of law.’ (Rule 8.500(b)(1).)” “Normally” is a key word there.

Sometimes there are cases the court hears that don’t fall into any of the rule 8.500(b) categories for when “[t]he Supreme Court may order review of a Court of Appeal decision.” Former Chief Justice Tani Cantil-Sakauye, speaking to a bar group (see here and here), discussed one such type of case that will occasionally get the court’s attention and send the justices on “rescue missions.”

Here’s what she said (video here):

“While we certainly will grant review on cases where there are serious conflicts in the law or something is of such substantial state interest that we need to jump in now, the Supreme Court has from time to time been known to get involved in what we call ‘rescue missions.’ [I]t just looks like something went wrong and one of the justices around the table would like to try [to] take a crack at it. The chief justice assigns cases and, so, when a justice raises his or her hand for a rescue mission, they get it. Sometimes the result doesn’t change, but at least we can change the language and at least we can do a little bit more explanation to help understand what might seem to be an unjust result.”

I’ve heard them called “save cases,” but I like the term “rescue missions” better.

What’s an example of a rescue mission? If I had to guess, I’d say the pending In re Hernandez case could be one. And it is a guess because Hernandez involves an issue of law I’m not an expert on.

In Hernandez, the court granted review of an opinion that seems very fact-specific and that doesn’t appear to involve the resolution of any new legal issue, which is probably why the opinion is unpublished (see rule 8.1105(c) for publication standards). Moreover, this is the third time the court has granted review in the case; the earlier two times were grant-and-hold orders, followed by remands for reconsideration in light of, first, a 2021 Supreme Court decision and, then, in light of a 2023 decision. It’s almost as if the Supreme Court is saying to the Court of Appeal, “we gave you two chances to reach the right result after your initial opinion and now, even though our two earlier opinions stated all the law we thought necessary for us to state in this area [although it’s possible the second decision — People v. Espinoza (2023) 14 Cal.5th 311 (see here) — was itself a rescue mission], we’re out of grant-and-hold options, so we’re going to rescue the defendant ourselves.” More about the Hernandez case here.

“Rescue missions” are an unwritten addition to the rule specifying when the court “may order review.” The court has observed other unwritten rule supplements, too. (See: Another example of an unwritten exception to the rule against citing unpublished opinions, and why the rule should be revised.)

Don’t split your oral argument time — a caveat

As mentioned last month, former Chief Justice Tani Cantil-Sakauye recently said that her “biggest rule” about oral argument is “do not split time,” meaning don’t take advantage of the opportunity afforded by rule 8.524(f) to have more than one attorney argue for the same side in the Supreme Court. There might be some exceptions to that blanket advice, however.

One exception is for amicus counsel, writes AJ Kutchins in an email.

Kutchins, a Supervising Deputy State Public Defender, says about his appearance as amicus counsel in two relatively recent Supreme Court criminal cases, “I really believe . . . the argument[s] we presented made a difference.” He adds, “I am aware of a number of other cases in which the arguments of amicus played a key role and others in which counsel was simply not up to presenting all the needed angles of the case.”

In one of the two Kutchins cases, he says “counsel split time with me because his co-counsel (who was supposed to do the whole argument) was suddenly hospitalized; I recall answering a key question . . . that my colleague could not.” In the other case, where Hutchins needed the court’s permission to argue because defense counsel opposed the Public Defender’s appearance (see: Arguing with friends), “we were arguing a theory that counsel abjured but that the Court ended up adopting.”

An amicus exception to the don’t-split rule seems reasonable in certain situations. I’ve participated in four Supreme Court arguments in which I was ceded time as amicus counsel or did the ceding to amicus counsel. My guess is the amicus arguments in those cases didn’t affect the court’s opinions, but neither did they hurt the oral presentations.

In 2010, we wrote, “splitting an argument is often a mistake because it dilutes the parties’ ability to answer the Court’s questions meaningfully and the justices don’t particularly like it.” But we also then followed that up with this: “That said, in some cases it may be worth it to allocate ten minutes to counsel for amici to allow them to address a case’s broader policy implications.”

Don’t split your oral argument time [Updated]

Former Chief Justice Tani Cantil-Sakauye recently spoke at a bar association program. (See here.) Her wide-ranging talk included tips for Supreme Court practitioners. One of her primary points was not to cede part of your oral argument time.

Splitting one side’s 30 minutes of argument time is allowed. Rule 8.524(f) provides for “[r]equests to divide oral argument among multiple counsel,” but the division has limits: “Multiple counsel must not divide their argument into segments of less than 10 minutes per person, except that one counsel for the opening side — or more, if authorized by the Chief Justice on request — may reserve any portion of that counsel’s time for rebuttal.”

However, just because you can split your time doesn’t mean you should. And Cantil-Sakauye’s advice is clear — don’t. (Video here.)

“My biggest rule is: please do not split time,” the former Chief Justice said. She explained that “the justices don’t ask questions in a lineal fashion” and you can’t be certain “when [particular questions] will come.” The court “is not going to categorize its questions according to how you would like to present [the argument]” and “it’s very confusing and a waste of time” when one attorney is in court to talk only about a particular issue but all that the justices want to hear about is a different issue. “I’ve never seen it be successful,” she concluded about the tactic of dividing time.

Years ago, we advised, “splitting an argument is often a mistake because it dilutes the parties’ ability to answer the Court’s questions meaningfully and the justices don’t particularly like it.”

[March 14 update: Don’t split your oral argument time — a caveat.]

Former Chief Justice talks about inter-branch tensions, gives practice tips, and advocates for raising State Bar dues at bar association program

Former Chief Justice Tani Cantil-Sakauye recently spoke at a Contra Costa County Bar Association program called “Behind the Judicial Curtain and in the Robing Room.” Video of the event is here.

She began her talk with a discussion of the judiciary’s relationship with the executive and legislative branches. Saying “it’s always a separation of powers challenge,” Cantil-Sakauye claimed that, despite being “incredibly well intended,” the other branches often “get out of their lane.” Later, remembering some skirmishes with legislators about the State Bar dues bill, she deadpanned, “thank goodness for term limits.”

Most of the former Chief’s lecture, however, dealt with the superior courts, Courts of Appeal, and the Supreme Court, and tips for practicing in each. She discussed things such as the importance of making a good record in the trial court and how to make the most of your oral argument time in the Supreme Court.

Cantil-Sakauye also discussed judicial ethics (including about the Commission on Judicial Performance and the Supreme Court’s Committee on Judicial Ethics Opinions, but nothing about the U.S. Supreme Court’s problems) and the State Bar. About the latter, she said “the Legislature needs to leave the State Bar alone for at least two to three years and let it get its business in order.” The former Chief Justice additionally asserted that the State Bar “needs to raise dues” to cover the costs of a new computer system and to hire additional staff.

Captioning Supreme Court documents

We were recently asked to slightly revise the caption on a petition for review we filed in the Supreme Court. This led us to check in with the court’s Clerk/Executive Officer Jorge Navarrete on captioning details. Here’s what we learned.

Rule 8.504(a) requires petitions for review, answers, and replies to comply with rule 8.204 (concerning Court of Appeal briefs; see particularly subdivision (b)(10)), except as rule 8.504 otherwise provides. Rule 8.520(b)(1) does the same for Supreme Court briefs.

As far as captions on document covers are concerned, C/EO Navarrete advises that these be included to comply with those rules:

  • The superior court and its case number.
  • The name of the superior court judge who made the ruling at issue in the Supreme Court.
  • The Court of Appeal case number. (Optional is identifying the Court of Appeal that made the underlying decision.)

Also relevant is one provision in rule 8.504 — subdivision (b)(6) — that supplements rule 8.204: “The title of the case and designation of the parties on the cover of the petition must be identical to the title and designation in the Court of Appeal opinion or order that is the subject of the petition.”

Additionally, for amicus briefs, rule 8.520(f)(6) provides that “[t]he covers of the application [to file an amicus brief] and proposed [amicus] brief must identify the party the applicant supports, if any.”

The necessity — or not — of preserving issues for Supreme Court review

Court rules provide several limits on what the Supreme Court will consider in cases it has chosen to decide. However, those constraints don’t handcuff the court. They’re general limits that the court can and will sometimes choose not to follow. As it did in July’s County of Santa Clara v. Superior Court (2023) 14 Cal.5th 1034 opinion.

Rule 8.500(c)(1) provides, “As a policy matter, on petition for review the Supreme Court normally will not consider an issue that the petitioner failed to timely raise in the Court of Appeal.” In County of Santa Clara, the court turned down a request to invoke the policy of ignoring certain arguments not raised below by hospitals who lost in the Court of Appeal.

First, the court said the arguments were raised in the petition for review and it cited rule 8.516(b)(1), which says the court “may decide any issues that are raised or fairly included in the petition.” (14 Cal.5th at p. 1046, fn. 5.) The court continued, “Moreover, ‘[i]n a number of cases, this court has decided issues raised for the first time before us, where those issues were pure questions of law, not turning upon disputed facts, and were pertinent to a proper disposition of the cause or involved matters of particular public importance.’ [Citations.] Assuming that the Hospitals did not specifically raise these arguments in the courts below, we exercise our discretion to address them.” (Ibid.)

Horvitz & Levy represented the hospitals in the Supreme Court, but didn’t become counsel until it filed the petition of review.

There are other policies that might — but need not — limit the scope of Supreme Court review.  Rule 8.500(c)(2) provides that “as a policy matter the Supreme Court normally will accept the Court of Appeal opinion’s statement of the issues and facts unless the party has called the Court of Appeal’s attention to any alleged omission or misstatement of an issue or fact in a petition for rehearing.” (See: Just the facts in the Supreme Court, again.) Also, the court normally will avoid issues not raised in a case’s petition for review (see: The delicate balance of choosing how many issues to raise in a petition for review) or in the answer to a petition (see: Taking issue with your answer to petition for review).

Practice tip: It’s preferable to be able to stay within the bounds of the court’s “normal[ ]” policies when seeking review. However, if counsel sees a possible review-worthy issue (especially one that is a “ ‘pure question[ ] of law’ ” ) that wasn’t timely raised in the Court of Appeal, the better practice could be to include the issue in the petition for review, knowing that the court certainly can and does deviate from those policies.

Other-side-of-the-coin practice tip: If the opponent’s petition for review raises a new issue, point that out in an answer to the petition as a reason for the court to not hear the case. Tell the court that an issue on which the Court of Appeal has not weighed in is not a good vehicle for deciding the issue, even if the issue is review worthy. (See — Wait for it: issue percolation, right vehicles, and legislative inaction.) In Santa Clara, the party that had its Court of Appeal victory overturned opted to not file any answer to the petition and didn’t object to the newly raised issue until its answer brief on the merits, after the court had already granted review and after its opponent had fully briefed the new issue.

UC Law SF offers moot courts to prepare for Supreme Court arguments

Leah Spero — Director of the California Appellate Advocacy Program at the newly renamed UC Law San Francisco — has told us about moot courts available through the Program to help practitioners prepare for their California Supreme Court arguments in civil cases.

According to a FAQs page, a moot court panel “typically includes a UC Law SF professor with subject-matter expertise and two to three experienced appellate attorneys.” Once the court sends its oral argument letter in a case, the school invites both sides of a case to participate in a moot court and the first to accept “is given the moot.” The moot courts are free, but “donations to [the Program] are strongly encouraged.”

Horvitz & Levy attorneys have recently taken advantage of the moot court program.

Other law schools also have moot court programs for attorneys. I’ve found very helpful being mooted at Loyola Law School several times. Also, the California Constitution Center at Berkeley Law sometimes does moot courts for cases with California constitutional law issues. There might be other similar California law school programs of which I’m unaware.

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