“Few legal metaphors enjoy more prominence than that of a legal issue ‘percolating’ through the courts.” (Michael Coenen, Seth Davis, Percolation’s Value (2021) 73 Stan. L. Rev. 363, 365.) It means that a Supreme Court will hold off deciding an important issue until it has more input from lower courts. A related cliché is the court waiting for a better “vehicle,” i.e., a case where an issue is presented more cleanly. Other times, a court might defer a decision anticipating (or simply wishing for) a legislative or administrative resolution of the issue. (See, e.g., here.)

Last month’s Supreme Court grant of review in Michael G. v. Superior Court illustrates these reasons for judicial postponement.

The question there is one of statutory construction; as summarized by court staff: “Are juvenile courts required to extend reunification efforts beyond the 18-month review when families have been denied adequate reunification services in the preceding review period?” The Court of Appeal concluded that a statute “obligated the [juvenile] court to terminate services . . . regardless of whether reasonable services had been provided in the most recent review period.” (Michael G. v. Superior Court (2021) 69 Cal.App.5th 1133, 1142–1143.) But, the court said, “This is a difficult issue, and we recognize ‘[t]here is a split of authority in case law.’ ” (Id. at p. 1143.)

The Supreme Court had the chance to address the “difficult issue” and to resolve the split before Michael G., but it declined those prior invitations. (See In re M.F. (2019) 32 Cal.App.5th 1, review denied; J.C. v. Superior Court (June 28, 2017, No. G054816) 2017 WL 3681590, review denied; see also In re J.E. (2016) 3 Cal.App.5th 557, depublication request denied.)

When the review was denied in J.C., Justice Goodwin Liu issued a separate statement saying that the petition for review “raises important issues” about which lower courts disagreed, but he agreed with not hearing the case because it was “not a proper vehicle.” (J.C., supra, 2017 WL 3681590, at *7 .) He also said that “there appears to be a substantial tension in the statutory scheme,” that the issues “lie at the crosshairs of competing policy objectives,” and that, therefore, “[t]he Legislature seems the best forum for studying and resolving these issues in the first instance.” (Id. at pp. *9, *10.)

The court denied review in J.C. over four years ago. At that time, Justice Liu said, “we may eventually have to intervene.” (J.C., supra, 2017 WL 3681590, at p. *7.) With no legislative action in the interim, the issue having sufficiently percolated, and Michael G. apparently being an appropriate vehicle, “eventually” is now.


The Supreme Court doesn’t decide all important issues