Wednesday conference includes unusual court split on appellate procedure issue, grant to decide clear-and-convincing-evidence standard of review

At the Supreme Court’s Wednesday conference, a divided court issued a grant-and-transfer order in M.U. v. Superior Court.

Most grants of review, including grant-and-transfers, are unanimous.  Occasionally, one or two justices will simply not vote with their granting colleagues, as has happened recently (see In re Harris below, and also here and here), but it’s quite unusual to have justices affirmatively record a vote against a grant.  In fact, it appears that the court’s internal practices and procedures provide for a dissenting recorded vote only when a petition for review is denied.  (Several months ago, the court adopted a policy of allowing justices to record dissenting votes when the court recommends clemency at the governor’s request.)

In M.U., however, Chief Justice Tani Cantil-Sakauye and Justices Ming Chin and Carol Corrigan recorded votes to deny the petition for review.  Justices Goodwin Liu, Mariano-Florentino Cuéllar, Leondra Kruger, and Joshua Groban voted to grant and transfer.

The dispute among the justices concerned a procedural issue.  A minor filed a writ petition in the First District, Division One, Court of Appeal, challenging an order transferring the minor from juvenile to criminal court.  (See here, here, and here.)  The appellate court denied the petition “for failure to provide a record sufficient to enable informed appellate review.”  The problem was the lack of a reporter’s transcript or a declaration summarizing the relevant proceedings, a deficiency which the court gave the minor’s counsel opportunities to fix before denying the petition.

The Supreme Court order directs the Court of Appeal to “reconsider the matter in light of the reporter’s transcript, which counsel for petitioner has informed this court is now available, provided that petitioner lodges the record within seven days from the date of this order.”

Practice pointer:  when petitioning for writ relief, just comply with rule 8.486(b) and don’t count on the Supreme Court to bail you out.  In M.U., the majority might have thought it better to have the transfer issue reviewed on the merits now rather than in the context of a later habeas corpus petition claiming ineffective assistance of counsel.  (If so, the reasoning is similar to the impetus for changing the court’s grant-and-hold philosophy in criminal cases four years ago.)  That factor won’t be a consideration in a civil case writ petition.

Other conference actions of note included:

  • The justices were unanimous in granting review in Conservatorship of O.B., and they limited the issue to, “On appellate review in a conservatorship proceeding of a trial court order that must be based on clear and convincing evidence, is the reviewing court simply required to find substantial evidence to support the trial court’s order or must it find substantial evidence from which the trial court could have made the necessary findings based on clear and convincing evidence?”  The court’s decision will likely resolve a split of authority on this same issue in punitive damage cases.  The Second District, Division Six’s published opinion in O.B. held, “’The “clear and convincing” standard . . . is for the edification and guidance of the trial court and not a standard for appellate review.'”
  • The court denied review in People v. Servin, but depublished the opinion by the Fourth District, Division Three.  In a matter challenging the denial of a compassionate prison release, the appellate court issued its opinion even though the defendant had died during the appeal’s pendency.  The court said it was doing so “to make two points: (1) the statutory requirements and the standard of appellate review explained in Martinez v. Board of Parole Hearings (2010) 183 Cal.App.4th 578 apply in all cases under section 1170(e), whether the defendant or the People appeals; and (2) to alert the Attorney General and the criminal defense bar to the necessity of immediately advising the appellate court of the time exigency and the need for calendar preference in compassionate release cases.”  Points made; but they won’t be in the official reports.
  • In In re Harris, the court issued an order to show cause, returnable in the Court of Appeal, whether the habeas corpus petitioner is entitled to relief “because there was insufficient evidence to support the November 4, 2016 decision by the Board of Parole Hearings to rescind petitioner’s parole grant.  (See In re Powell (1988) 45 Cal.3d 894, 904.)”  Justice Chin did not vote in favor of the order, but he did not formally record a dissenting vote.  (See M.U. v. Superior Court above.)
  • There were six criminal case grant-and-holds.

What to expect when you’re expecting oral argument

The most unpredictable factor in the life of a Supreme Court case is when oral argument will be scheduled after briefing is complete.  (See here and here.)  Two years ago, however, the court took some of the surprise out of the process by starting to send letters alerting counsel that the court would soon set argument and asking if there was good cause to not schedule the argument on particular upcoming calendars.  The court later revised the letter to include a detailed explanation of what does and does not constitute good cause.

For counsel believing there is good cause to not set argument on a calendar, there are two pieces of advice.  First, respond quickly, within seven days of receiving the court’s letter.  For example, the court rejected as untimely one request that was filed 15 days after the court sent its oral argument letter.  Second, pay attention to what the court considers good cause.  There have been numerous cases where the court has told counsel that a request to avoid certain argument dates “is not supported by good cause.”  (See, e.g., here and here.)

So, how long after the court sends an oral argument letter will the court actually schedule argument if counsel does not make a good-cause request to avoid a certain calendar?  It varies.  But, from looking at all the cases argued since the court started sending the letters, more cases than not are argued two to three months after the letter goes out.

There are a significant number of outliers, however.  For example, in In re Ricardo P., the court sent an oral argument letter in April 2017, saying that argument could be set “on the September 2017 calendar or thereafter.”  The emphasis in that letter is definitely on “thereafter,” because, now 15 months after sending the letter, the court has still not scheduled argument.  We also saw at least 13 cases where argument wasn’t held until 150 to 419 days after the letter was sent.

Also, don’t necessarily take at face value what the court states as the earliest possible argument calendar.  For example, in Ramirez v. City of Gardena, which the Los Angeles Times wrote about today, the court’s April 10 letter said argument could be set “on the September 2018 calendar or thereafter,” but the case was then scheduled for June.


When to submit letters supporting petitions for review

When a party petitions the Supreme Court for review, non-parties can submit letters to the court in support of review.  (Rule 8.500(g).)  Those letters can be effective.  (See here and here).

The rules specify when a petition must be filed, but there is no fixed deadline for a supporting letter.  We usually advise getting the letter on file before the court’s staff starts work on the conference memo regarding the petition, a time we used to estimate to be around 20 days after the petition’s filing, which is when the answer to the petition is due.  That’s probably still good advice, but we now understand that taking a bit longer on the letter — even up to five weeks after the petition is filed — might not hurt.

Our current understanding is that, when a petition is filed, the case is assigned to an initial conference that will occur about five weeks later.  (The court conferences on petitions for review most Wednesdays.)  However, a petition is often not submitted at the initial conference to which it is assigned, but is continued to a later conference, usually for logistical reasons that are unrelated to the significance or merits of the issue presented.  (Occasionally, a justice will have a petition continued after she or he reads the conference memo (see next paragraph), but the more common reason for a continuance is that there are older petitions that have to be considered first.)

Court central staff prepares conference memos for each petition.  Those memos are typically distributed to the justices and their staffs about a week before the conference at which the petition will be considered.  Central staff will typically start work on the conference memo about a week before that.

The critical factor about when work will start on a conference memo — our rule-of-thumb deadline for submitting a letter in support of review — thus seems to be whether the petition for review will be continued to a later conference.  But, because the logistical reasons for a possible continuance are unknowable outside the court, three weeks after the petition for review is filed appears to still be the safest target date.

We are also informed that even last-minute supporting letters are considered, generally causing preparation of a supplemental conference memo, but we don’t recommend waiting until the last minute.  We would rather have our client’s supporting letter — or letters by others supporting our client’s petition for review — in the central staff attorney’s hands before that attorney is working on the conference memo.

Finally, don’t be concerned if, whenever supporting letters are submitted, they don’t appear on the court’s online docket.  They just don’t.

Howard Bashman offers some practice tips for appellate lawyers

Pennsylvania appellate lawyer and nationally known appellate blogger Howard Bashman recently offered some sage advice on brief writing and oral argument in The Legal Intelligencer [subscription required]. Bashman writes that now, more than ever, the briefs are key to success on appeal. Oral argument is secondary because, even when it is available, “[y]ou cannot expect to rescue an appeal at oral argument that you have already lost on the briefs.”

Among Bashman’s advice on brief-writing is this nugget: “Submitting a brief that is credible, reliable and subtly persuasive is in my experience the best way to earn or maintain the trust of the decision makers and also the most likely way to cause them to conclude that your side should prevail.” Bashman goes on to explain why the contrary approach does not work: “The more that an advocate needs to shout, exaggerate, or declare in bold, italicized and underlined text just how right he or she is and how wrong the other side happens to be, the less likely a neutral decision maker will find the presentation persuasive. Indeed, as counterintuitive as it may sometimes seem, the more egregiously incorrect a trial court’s ruling or an adversary’s argument is, the less strident one should be in order to usefully and persuasively demonstrate the errors at hand.”

We could not agree more.

Sage advice for effective brief writing from appellate judges and U.S. Supreme Court practitioners

Since we all know that effective brief writing is what defines a good appellate lawyer, we recommend that you review this post from the Inverse Condemnation blog.  The post summarizes several tips for effective writing gleaned from the panel presentation, “Preparing an Effective Appellate Brief: The Judicial Advocate Perspective.”  The program, sponsored by the ABA Council of Appellate Lawyers, took place last month at the ABA’s Midyear Meeting in Chicago.  The panelists were Judge Catharina Haynes of the Fifth Circuit, Justice Barbara Jackson of the North Carolina Supreme Court, Timothy Bishop of Mayer Brown’s Chicago office, and former Illinois Solicitor General Michael Scodro, now of Jenner & Block’s Chicago office.  The moderator was David Tennant, head of Nixon Peabody’s appellate group.

A link to the program materials is attached to the post.  An audio recording will soon be available to ABA members on the Council of Appellate Lawyers website.

(Disclosure:  Horvitz & Levy partner Brad Pauley (yours truly) is Chair-Elect of the Council of Appellate Lawyers.)

The “A” list: It’s not just for celebrities

Perhaps the greatest challenge facing an appellate attorney in the California Supreme Court is to persuade the Court to grant a petition for review.  The first step on that path is to convince the Court’s central staff attorney (who is tasked with reviewing the petition and preparing a conference memo) to place the petition on the “A” list for one of the Court’s weekly Wednesday conferences.

As explained in the Court’s Internal Operating Procedures, “Cases assigned to the ‘A’ list include all those in which the recommendation is to grant or take affirmative action of some kind, e.g., ‘grant and transfer’ or ‘deny and depublish,’ in which a dissenting opinion has been filed in the Court of Appeal, or in which the author believes denial is appropriate, but that the case poses questions that deserve special attention.” On the other hand, if a petition is routine, does not present an important question or involves settled law, the staff attorney relegates it to the “B” list.

It is our understanding that not all published Court of Appeal decisions make it onto the A list.  However, most of the decisions on the A list for any given conference are published.  We also understand that any case in which a Court of Appeal justice has dissented automatically makes the A list.  This explains why, as we noted here, the Court is far more likely to grant review of published decisions and decisions with dissents.

The moral of the story, of course, is to emphasize the published status of the Court of Appeal decision in your petition for review.  We often do that on the petition’s caption page by stating the petition seeks review of “a published decision of the Court of Appeal, ___ District, Division ____.”  You should likewise be sure the reader is aware of any dissenting opinion, perhaps by noting the existence of the dissent in the petition’s introduction, or even in your statement of the question presented.

Check out this online, searchable version of the Yellow Book

As in all California courts, attorneys practicing before the Supreme Court should adhere to the California Style Manual, aka the Yellow Book (though Bluebook citation format is also acceptable).  (Cal. Rules of Court, rule 1.200.)  So here is a practical tip from our friend Ben Shatz at Southern California Appellate News: the Sixth District Appellate Program furnishes the Yellow Book online in a searchable format.  This should help you to answer those nagging questions of citation form in record time.

(We’ve previously discussed the Yellow Book, the brainchild of Bernie Witkin, here and here.)

A reason to read the separate opinions

There are various reasons for an appellate judge to write a separate opinion, whether it be a dissent or a concurrence. (See Judge Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings (1995) 62 U. Chi. L. Rev. 1371, 1412-1415.) Justice Corrigan’s concurrence in today’s People v. Smith decision illustrates one use of the separate opinion: sending a message to future petition for review writers by putting a target on an earlier Supreme Court opinion.

The Smith majority concludes that one crime was a lesser included offense of another crime. In doing so, the court relies in part on a portion of its opinion in People v. Barrick (1982) 33 Cal.3d 115. Justice Corrigan is not a Barrick fan. In her concurring opinion today, joined by Justice Baxter, Justice Corrigan calls Barrick “ill reasoned and lack[ing] [in] persuasive force” and says it “represents an unreasoned departure from otherwise settled precedent.” If that were not a sufficient hint to counsel on how to get the Supreme Court’s attention in the next similar case, she adds, “because neither party has urged us to overrule Barrick on that point, the question must await another day.”

Note to counsel on the wrong side of the next Court of Appeal opinion that raises the same lesser-included-offense issue: just slap a white cover on Justice Corrigan’s concurring opinion and file it as your petition for review. You know you’ll have at least two votes. (Exaggeration alert: follow all the petition for review format rules, not the slightly hyperbolic advice just stated.) General note to all counsel: remember to read the separate opinions in those appellate decisions that are relevant to your case.

The Recorder’s California Supreme Court Service – a neat resource

This is an unsolicited plug for The Recorder’s “California Supreme Court Service” (CSCS). Many of you may already know about this publication, which has been around for ages, but just in case some folks haven’t yet stumbled upon this, here’s the deal. The publication consists of “Comprehensive Weekly Reports” summarizing petitions for review recently filed in cases with published opinions, and a “Monthly Pending Cases and Index” booklet.

What’s so cool about these? By looking at the Weekly Reports, you can find out what issues are knocking on the Supreme Court’s door before the court has ruled on them. Also, by looking at older back issues, you can see what questions were presented in petitions for review that were denied. (Note that our blog has a weekly summary of conference reports, but we report only on those petitions that were granted, or that were denied with one or more votes to grant.)

As for the monthly compendium of pending cases in which review was granted, these are nicely broken down by topic. Similar information is available from the court’s website in searchable form, but the court’s version is not organized by topic, as the CSCS compendium is.

These resources can be quite useful if you’re trying to demonstrate in a petition for review (or answer to petition for review) that an issue is (or is not) a recurring one, or if you want to find related briefing that may be helpful to you in drafting a petition for review. This information is also good to know if you’re counsel of record looking for potential amici curiae for your case, or if you’re preparing an amicus filing in connection with a petition for review.

What to do when it absolutely, positively has to be there overnight.

Rule 8.25(b)(3)(B) of the California Rules of Court provides that several categories of documents, including a brief, a petition for review, an answer to a petition for review, and a reply to an answer to a petition for review, are timely “if the time to file has not expired on the date of” their “delivery to a common carrier promising overnight delivery as shown on the carrier’s receipt.” This can be a useful rule, especially when your client has asked you on a Friday to prepare a petition for review due the following Monday. But a word to the wise: When relying on the rule, be sure to submit the carrier’s receipt with the petition, and be sure the receipt “promis[es] overnight delivery” as the rule requires. We know of at least one recent case in which the Supreme Court clerk’s office rejected an otherwise timely petition for review submitted in reliance on Rule 8.25(b)(3)(B) because the petition was not accompanied by such a receipt.

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