How The California Supreme Court Operates
The work of the Supreme Court consists primarily of determining what cases the court will review and deciding those cases by written opinions.6 min read
The California Supreme Court consists of the Chief Justice and six associate justices. The Chief Justice may assign justices of lower courts as pro tempore justices to assist the court when a regular justice is absent or disqualified in a particular case. The Chief Justice also designates an associate justice to serve as Acting Chief Justice in instances of absence, disqualification, or recusal.
The work of the Supreme Court consists primarily of determining what cases the court will review and deciding those cases by written opinions after holding oral argument.
Appeals in all death penalty cases are automatically taken to the Supreme Court. Other cases normally come before the court either in the form of petitions for review of decisions by the Courts of Appeal or as petitions for extraordinary writs of mandate, prohibition, certiorari, or habeas corpus. In these cases, the court must decide whether to accept the matter for decision.
Weekly Conference: the Court's Discretionary Decision Whether to Accept a Case
Like the United States Supreme Court, the California Supreme Court has discretionary jurisdiction over many of the matters presented to it. Thus, with the exception of a relatively small number of appeals that come to the court directly, it has discretion to decide whether or not it will accept any particular case for review and decision on the merits.
When a petition for such discretionary review is filed with the court, it is scheduled for one of the court's weekly Wednesday conferences, at which time the court will decide whether to accept the case. At the time the conference date is selected, the matter is assigned by the Calendar Coordinator on a rotational basis to one of the central staffs. Overflow petitions are assigned to one of the justices for preparation of a "conference memorandum."
The conference memorandum summarizes the relevant procedural or evidentiary facts of the case, any pertinent rulings in the matter by inferior courts or administrative agencies, and the issues raised by the parties. The conference memorandum also contains a discussion of the merits of the issues and a recommendation as to whether the court should accept the case.
The justices receive copies of these memoranda during the week preceding the scheduled conference. The justices use the memoranda to assist them in assessing the merits of the cases and the importance of the issues involved. If a justice desires, he or she may request that a matter be continued to a later conference in order to circulate a "supplemental conference memorandum" advancing an analysis or recommendation different from that of the original conference memorandum.
For a petition for review to be granted or an order to show cause to be issued in an original proceeding, at least four justices must concur.
At a typical conference, the court considers from 120 to 180 matters, primarily petitions for review and original proceedings.
Many of the cases accepted by the court at its weekly conferences will be argued orally before the full court and will be decided by a full written opinion. There are, however, exceptions.
For example, many cases that appear on conference raise an issue that is already before the court in another case. In that event, the court may decide to "grant and hold" the new case until its opinion in the "lead" case is filed. When the lead opinion becomes final, cases that have been "held" for that opinion usually are transferred to the Court of Appeal for reconsideration in light of the lead opinion, or review may be dismissed as "improvidently granted" if it appears that the decision of the lower court was consistent with the opinion.
In other instances, the court may transfer a case to a Court of Appeal for further consideration in light of a case decided after the Court of Appeal's decision, or the court may deem it appropriate to make an order to show cause returnable before a lower court.
In fiscal year 1992-93, 3,976 petitions for review and 1,491 original proceedings were filed in the Supreme Court. Approximately 5 percent of the petitions for review were granted, although many of these cases will not result in a written opinion by the court because they fall in the "grant and hold" category or are immediately transferred to a lower court.
After a Case Has Been Accepted: the Calendar Memorandum and Oral Argument
After a case has been accepted for review (and if it is not being "held" for a lead case), the Chief Justice assigns it to one of the seven justices who voted to grant review for preparation of a "calendar memorandum."
The justice to whom a case has been assigned prepares and circulates a calendar memorandum setting out the facts and legal issues, and proposing resolution of those issues. Soon thereafter, each justice states his or her "preliminary response" to the calendar memorandum, and indicates whether he or she will request changes, or will concur or dissent. Changes may be made by the author of the original calendar memorandum and, if appropriate, tentative concurring and dissenting memoranda may be circulated.
When at least a majority of the justices have tentatively concurred in a proposed disposition, the Chief Justice places the case on a pre- argument conference. If a majority of the justices indicate they will tentatively dissent from the original calendar memorandum, and unless the original author agrees to change his or her view to accommodate the majority, the Chief Justice reassigns the matter to one of the dissenting justices, or resets the matter for further discussion. Thereafter, when a majority of the justices indicate they tentatively concur in the calendar memorandum, the Chief Justice sets the matter for oral argument.
The Supreme Court hears oral argument during one week each month from September through June. Each year, four oral argument calendars are held in Los Angeles, four in San Francisco, and two in Sacramento.
A cause is "submitted" for decision after oral argument, or at the time all briefing is complete if post-argument briefs are permitted. Except in unusual circumstances, the court must issue its decision within 90 days after submission.
After Oral Argument: the Assignment, Preparation, and Circulation of Proposed Opinions
A conference is held on each case as soon as possible after oral argument. After this conference the justices take a tentative vote on the case. If the recommendations of the justice who prepared the calendar memorandum are tentatively favored by a majority of the court, then that justice usually will retain the case for the drafting of a proposed majority opinion. If the majority view is contrary to that of the author of the calendar memorandum, the Chief Justice will assign one of the justices comprising the majority to write the proposed opinion.
As soon as possible after the matter is submitted to the court, the assigned justice circulates a proposed majority opinion. Justices who deem it appropriate to write and circulate dissenting or concurring opinions are afforded time in which to do so, and the author of the proposed majority opinion in turn is given an opportunity to respond to any such opinion. During this process, the original copy of each opinion is kept in the Calendar Coordination Office, and any justice may, at any time, sign, delete his or her signature, or "OK" his or her signature (as required whenever a change is made in the opinion or another justice circulates a concurring or dissenting opinion).
The Final Step: Filing the Court's Decision
When the deliberation and drafting process has been completed and all justices have subscribed to the majority or concurring or dissenting opinions, a "Notice of Forthcoming Filing" is posted in the Clerk's Office. [Note: The only exception to this standard operating procedure occurs on the rare occasion when an opinion in one pending case refers to an opinion in another pending case. Should the former be ready for filing before the latter, the former is retained until the latter also is ready for filing.]
For the convenience of the litigants, the public, and the press, decisions are normally filed at two set times each week--Mondays at 2:00 p.m. and Thursdays at 9:30 a.m. At those times, the decisions are sent to the Clerk's Office, stamped "filed," and made public.
A decision does not become final until 30 days after it has been filed. The parties may petition for a rehearing during the first 15 days after the filing date. The court may extend the 30-day period by as much as 60 additional days in order to consider whether to grant a petition for rehearing or in order to modify its decision on its own motion.