California Supreme Court Merits Review

A few years ago, Boalt Hall Professor David Carillo hosted a marvelous conference on the California Supreme Court. More than 200 lawyers heard Chief Justice Tani Cantil-Sakuaye, Justices Goodwin Liu, Carol Corrigan, Leondra Kruger and former Justice Joe Grodin explain how they decide cases.

The attending lawyers also had to suffer through the pontifications of several overripe appellate lawyers — including yours truly.

One of our more interesting panel discussions was about was whether the Supreme Court should engage in “merits review” — taking cases in order to correct erroneous Court of Appeal decisions.

Your likely reaction: “Don’t they already do that? What’s the point of having a Supreme Court if they don’t take cases to fix errors made by lower courts?” A reasonable view. Reasonable, but wrong.

Rule of Court 8.500 (b) sets the current standard: “The Supreme Court may order review of a Court of Appeal decision: (1) When necessary to secure uniformity of decision or to settle an important question of law.”

This means that the Supreme Court is not an “error correction” court. It grants review in two situations – neither of which focusses on providing justice to the litigating parties.

First, “to secure uniformity of decision.” That means to a need to resolve a clear conflict among two or more reported (i.e., published) Court of Appeal opinions, because only published decisions bind trial courts. (Occasionally an unpublished opinion raises an issue on which published opinions are conflicted, so the Supreme Court will take the unpublished case to resolve the conflict.) Such a conflict rarely happens, but when it does, somebody has to resolve the conflict, so trial judges and society at large can follow one uniform rule that covers the whole state. That somebody is the Supreme Court.

The second situation is murkier. An “important question of law” usually means important in the real world, not important academically — and certainly not merely “important to my client” (unless your client is someone like the governor or the Legislature, who represents much larger interests).

The bottom line: If the Court of Appeal misreads the facts, mangles the law, and comes to a result that unjustly deprives your client of fortune or freedom — but does so in an unpublished decision that affects no one but your miserable client – you are usually out of luck. And, as a large majority of Court of Appeal opinions are unpublished, this means that most litigants have hit the end of the road.

Of course, our Court of Appeal judges are some of the best in the country, and they usually get it right in well-reasoned opinions. But occasionally — only occasionally — they blow it. If the opinion is unpublished, no one is hurt except a single litigant. But that’s not good. We should construct an appellate system that strives for justice in all cases, not merely most of them. Empowering our Supreme Court to reverse where only a single litigant is hurt by an unjust Court of Appeal opinion is a worthy goal.

So perhaps Rule 8.500 should be amended to add a new ground for Supreme Court review: “When a Court of Appeal opinion is clearly erroneous and causes a substantially unjust result.”

The limiting language (“clearly” erroneous and “substantially” unjust) would mean that “merits review” would not declare open season on our Courts of Appeal. Only the most egregious cases would warrant review under this new subsection. But that might be enough to cure the most unjust decisions. Not many, because the Supreme Court has room for only a very few additional cases. The court currently hears around 75 cases per year, and several of those are death penalty cases it must hear.

Another possible benefit: Limited merits review might deter less than careful work by an appellate court. As I mentioned, this doesn’t happen often, but litigants frequently believe it happens. Many an attorney has told me, “They wrote a lousy opinion that met the rule for publication, but they chose not to publish it, because they knew that would invite Supreme Court review.” True? Unlikely. But the appearance of justice is important — we want attorneys and their clients to respect our appellate system. Giving them the option of trying to persuade the Supreme Court that the Court of Appeal opinion is unusually unfair might assure everyone that we go out of our way to provide what the public expects of our appellate system: justice.

There are some hurdles.

Would merits review impose an additional burden on the Supreme Court? There is very little room on the Supreme Court’s calendar for additional cases. The court must devote considerable time and resources to the cases that qualify for review for “conflicts” and “important questions of law,” as these affect many more people than the parties to the particular case. And, of course, death penalty appeals are big resource-eaters. This problem might be resolved by handling merits review via “memorandum dispositions” — short opinions, maybe a couple of paragraphs or a page or two. Many courts throughout the country (including the U.S. Supreme Court and the 9th U.S. Circuit Court of Appeals) use these. Publishing a few would send a message that our appellate system cares a lot about providing justice in individual cases. It’s not clear, however, that our state Constitution allows such a disposition without oral argument, or without adherence to the requirement that cases be decided within 90 days of submission. So perhaps we would need to amend the state Constitution a bit.

Would allowing merits review force the court to devote more resources to considering more petitions for review? Currently, each year the court must consider about 1,000 civil petitions and 3,000 criminal petitions for review. Under current Rule 8.500, each of these petitions should make a plausible case for “conflicts” or “important question of law” review. Allowing petitions that seek only to remedy an unjust result for an individual client might encourage more petitions. But not many more, in my view. In my experience, under our current system, the bulk of petitions for review do not come close to qualifying for either “conflicts” or “important question of law” review. Petitions mostly argue that the Court of Appeal opinion was did not follow the law, or misconstrued the facts, or was just plain unfair. So attorneys are already filing “merits review” petitions.

And the work of the Supreme Court research attorney shouldn’t be much greater. The research attorney now reads each petition and the Court of Appeal opinion, and then writes a “conference memo” to the justices recommending grant or denial. Those conference memos do in fact discuss the merits (as well as whether the petition shows a “conflict” or “important question of law”).

Another objection: The Court of Appeal has spent many hours reviewing the briefs and the record, so the Supreme Court should not second-guess the Court of Appeal on the basis of its own much more limited review. But restricting merits review to cases where the Court of Appeal opinion is both “clearly” erroneous and “substantially” unjust should assure the Supreme Court that its reversal is the right thing to do, even with a limited review of the record and law.

Instead of “memorandum dispositions,” the Supreme Court might employ a currently allowed vehicle: “grant and transfer.” This involves granting the petition for review, but instead of then hearing the whole case, it transfers the case back to the Court of Appeal with instructions to reconsider. Currently, the instructions often tell the Court of Appeal to reconsider the case in light of a recently decided Supreme Court opinion that the Court of Appeal did not have a chance to consider. Grant and transfer might be explicitly expanded via a rule change that tells everyone that the Supreme Court might use it where the Court of Appeal opinion is both “clearly” erroneous and “substantially” unjust. Some appellate judges might be offended at being told that they didn’t do their job properly the first time. But what’s more important — the sensibilities of public servants, or providing what they swore to provide: justice?

As Justice Thurgood Marshall said in one of his dissents, a “decision contrary to the public sense of justice as it is, operates, so far as is known, to diminish respect for the courts and for the law itself.” Flood v. Kuhn, 407 U.S. 258, 293 n.4 (1972). Providing some sort of merits review can increase respect for our appellate courts.