A frequently invoked ground for Supreme Court review of a case is when it is “necessary . . . to settle an important question of law.” (Rule 8.500(b)(1).) But offering the court an important legal issue is not alone enough to get a case heard. The emphasis is on the “necess[ity]” to “settle” the important question. Sometimes, the court is just fine with the way the Court of Appeal has settled the issue.
Take the constitutionality of Senate Bill 1437, for example. That 2018 legislation, which scales back the felony-murder rule and the “natural and probable consequences” doctrine, has been attacked by various district attorneys around the state as an invalid amendment of several voter initiatives and as a violation of the separation of powers. Some superior court judges even agreed with those district attorneys, ruling SB 1437 to be in violation of the state constitution.
The contested legality of a statute making a significant change to the state’s criminal law, that’s certainly “an important question of law.” But is it one that is “necessary” for the Supreme Court “to settle”? Apparently not.
The court has consistently declined review of the constitutional issue, even while regularly taking cases to interpret the legislation’s terms and directing the Courts of Appeal to decide the constitutional issue. (See, e.g., here, here, here, here, here, and here.)
Why? There are two probable reasons. First, the Courts of Appeal have all upheld SB 1437’s constitutionality (see People v. Marquez (2020) 56 Cal.App.5th 40, 47, and cases cited there), albeit sometimes by a divided vote (People v. Lippert (2020) 53 Cal.App.5th 304, review denied). Second, California’s Attorney General has publicly vouched for the statute’s validity, filing amicus curiae briefs opposing the district attorneys’ arguments (e.g., Lippert; People v. Bucio (2020) 48 Cal.App.5th 300, review denied).
It’s a good bet that if either a Court of Appeal held or the Attorney General argued that SB 1437 is unconstitutional, the Supreme Court would have found it “necessary . . . to settle” the question.
The SB 1437 situation is very similar to the dispute about the validity of Senate Bill 1391, which prevents prosecutions in adult criminal court of crimes committed by anyone under 16 years old. But there is one telling difference. As with SB 1437, some district attorneys claimed — and some superior courts agreed — that SB 1391 violated the state constitution by improperly amending a voter initiative, and the Supreme Court was denying review when the Attorney General was defending the statute and the Courts of Appeal were consistently upholding it. (See here.) But then one Court of Appeal struck down the law and essentially forced the Supreme Court’s hand. (See here and here.) The SB 1391 case was argued last month.
Another case further illustrates the point that not every “important question of law” is one that is “necessary” for the Supreme Court to settle — Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, in which Horvitz & Levy prevailed on a significant issue regarding vicarious disqualification of a law firm. When the other side petitioned for review, an answer prepared by Horvitz & Levy partners Lisa Perrochet and David Axelrad explained why review was not needed: “While it is an important issue, intermediate appellate courts decide all manner of important issues. And sometimes, those decisions offer clear and complete reasoning that stands the test of time, outlining sound legal standards on which other courts and litigants confidently rely.” The answer included a footnote citing to five landmark Court of Appeal opinions. The Supreme Court denied review, although there was one recorded vote to hear the case.