Timeline to Petition for Ca Supreme Court Petition for Review

petition for review

What Everyone Should Know About Preparing a Petition for Review

by Marking L. Christiansen, old CCAP Staff Attorney
with 2007 Rules of Courtroom updates by CCAP staff

Watch the respective MCLE video for this commodity:

A petition for review must be filed within twoscore days of the determination

Basic Dominion:

The fourth dimension for filing a petition for review is gear up forth in dominion eight.500(e). This time is inside ten days of the decision of the Court of Appeal becoming terminal as to the latter court. (Dominion 8.264(b).) You can submit the petition earlier than the 10 twenty-four hours catamenia, but you absolutely cannot be even ane second past the x twenty-four hours menstruation. The time is computed on a twenty-four hour period-for-mean solar day basis, no days are omitted. If the petition is submitted earlier than the x day period, it will be marked equally received when information technology arrives and will be filed on the first solar day after the decision becomes final as to the Courtroom of Appeal. Use certified mail for petitions that are not hand delivered.

Infrequent Situations:

Generally, a decision becomes final as to the Court of Appeal 30 days subsequently filing. This is set along in dominion eight.264(b)(1).

EXCEPTIONS:

1. denial of a petition for a writ within the original jurisdiction of the Court of Appeal or writ of supercedeas where no culling writ or order to show cause is issued,
2. denial of an awarding for bail or to reduce bail pending entreatment,
3. denial of a transfer to a Court of Appeal, or
4. dismissal of an entreatment by asking of the appellant or by stipulation of the parties are all immediately final. The Courtroom of Appeal likewise can in writ cases, even after an alternative writ or lodge to show cause, under sure conditions specify a shorter catamenia or immediate finality.

EXCEPTION TO EXCEPTION:

The deprival of a petition for a writ of habeas corpus that is filed on the aforementioned day as the determination in a related appeal becomes concluding equally to the Court of Appeal at the same time as the related appeal.

EXCEPTION TO ALL THE ABOVE:

If a rehearing or other modification takes place after the original opinion is filed AND if the upshot is a modification of the judgment of the Courtroom of Entreatment then the time starts running again from the date of filing of the modification. You will know when the judgment is modified because the lodge making the modification will say that it effects a change in the judgment. If the Court of Appeal changes its stance but does non say the change effects a modify in the judgment, then the fourth dimension keeps right on going from the date the original decision was filed.

Do SUGGESTIONS:

1. Upon receipt of the Court of Appeal opinion or club, immediately summate the relevant periods to rehearing and to review. Call up to check the number of days in the months calculated. Calender your petition's first and terminal twenty-four hour period as though the filing menstruum was nine days rather than 10. Mentally figure that the showtime solar day for filing is actually the final day or work out some other ways which personally works for yous, but remember if the petition is one second too late it is still besides tardily and no relief for default will be forthcoming no affair how serious the case.
2. Remember that printing may break down, or be botched, or electricity may become out. Leave yourself some time leeway.
3. Remember the mail may or may not become through in time. Send the petition by certified mail service, at the least and always. Now the Supreme Court accepts the certification appointment as the filing engagement, but do non count on this every bit a professional or prophylactic style of treatment the problem. Exercise non rely on regular starting time class post postmarks, they do not count.

A petition for review must follow the rules as to class and service.

Bones Rules:

Become acquainted with rules 8.204, 8.212, 8.500, 8.504, and viii.40, in improver to the normal Court of Entreatment rules. In general, the petition requirements are the same as for other briefs except that the heading is "In the Supreme Courtroom of the State of California", service on the Court is an original and 13 copies, a copy must be shown to have been served on the Court of Appeal and the superior court clerks, the opinion is attached, the cover is white, the petition may not exceed thirty pages (excluding tables, the copy of the opinion, and proof of service), may non exceed 8,400 words, requires a word count certificate , and there are required content headings and material (discussed later on). While other petitions may be incorporated in specified situations, at that place is no provision to incorporate past reference the materials filed in the Court of Appeal.

Note: The rules besides permit an respond to an opposing petition to raise issues. All the same, if the answer is seeking review of some other consequence than that in the opposing petition, a petition for review should also exist filed.

PRACTICE SUGGESTIONS:

1. Note that the Attorney General must exist served fifty-fifty if the district attorney is treatment the case. (Dominion 8.29(c).) Note that both the clerk of the Court of Appeal and the clerk of the superior court must ever be served. Service generally will be the aforementioned as in the Court of Appeal other than the addition of the Court of Appeal clerk to the proof of service.
2. Note that an original and thirteen copies comes to 14 total. You should also add one more copy along with a cocky-addressed, stamped envelope for your conformed copy to obtain the Supreme Court number and filing date.
3. Just because you take 30 pages and viii,400 words does non mean y'all accept to take that many. Do Non exceed 30 pages or 8,400 words and effort for every bit few as possible consistent with your objectives. Remember to adhere the opinion and any order denying rehearing, no tabs are needed.
4. The Word Count Certificate is required for petitions since January 1, 2003. (Rule eight.504(d)(i).) A maximum of viii,400 words for a petition and 4,200 for a answer, excluding covers, tables and the opinion. Identify it afterward the Determination, simply before the copy of the stance. Nigh dataprocessing software can generate a give-and-take count for you. Meet a sample Certificate .
5. Service Copies of Petition for Review Need Not Include Stance.
   Although rule 8.504(b)(4) requires the Court of Appeal opinion be attached to a petition for review filed in the Supreme Court if the petition seeks review of the opinion, information technology is silent as to service copies. (Meet dominion eight.500(eastward), (f).) The Court of Appeal, of course, already has the opinion; and Chaser Full general or County Counsel, CCAP, superior court, and counsel for other parties have received it as well. For this reason, service copies of the petition do not demand to include the stance.  For newspaper copies, omitting the opinion saves copying and delivery costs for appointed counsel and saves recipients the cost of storing duplicate opinions.

A petition for review should be written to serve its purpose

Basic Rule:

Rule 8.500 states the matter clearly, so far as the true "pure purpose" is concerned. In that location may be other purposes, as will be explained later. Dominion eight.500 provides:

(b) [Grounds] Review by the Supreme Courtroom of a decision of a Court of Appeal will be ordered:

1. where it appears necessary to secure uniformity of decision or the settlement of important questions of law;
2. where the Courtroom of Appeal was without jurisdiction of the crusade;
3. where, because of disqualification or other reason, the conclusion of the Court of Appeal lacks the concurrence of the required majority of qualified judges; or
4. where the Supreme Courtroom chooses to transer a thing dorsum to the Court of Appeal for further proceedings.

(c) [Limitations] Every bit a matter of policy, on petition for review the Supreme Court normally will not consider:

1. any issue that could have been simply was not timely raised in the briefs filed in the Court of Entreatment;
2. whatsoever event or any material fact that was omitted from or misstated in the opinion of the Court of Entreatment, unless the omission or misstatement was called to the attention of the Court of Entreatment in a petition for rehearing. All other issues and facts may exist presented in the petition for review without the necessity of filing a petition for rehearing.

Ordinarily, y'all will have to debate an "important question of police force" (rule eight.500(b)(1)) and sometimes you will be lucky enough to take a conflict but rarely volition you see a lack of jurisdiction or a lack of concurrence of at to the lowest degree two justices of the Court of Appeal every bit a basis for review.

EXCEPTIONS:

This criteria is flexible ("unremarkably") as to the exceptions. Despite the apparently definite language of the first office, the Court has full control over the cases it takes, and this is regarded as a discretionary and unreviewable determination. Even so, every bit a practical matter, an endeavor to evade the exceptions will doom the petition. The Court is ane of review, and it wants to take a conspicuously adult set of facts and to exist sure that the Court of Appeal (whose conclusion information technology is that is being reviewed) has been given a clear opportunity to decide the matter and has assisted in the definition procedure. All the same, in highly infrequent cases, the Supreme Court may nevertheless wish to grant review and volition bargain with omitted or misstated facts.

What is "necessary" is highly subjective and depends on what the Court feels is necessary at the moment to meet is goals, including at times public interest or sometimes detail problems of agencies or court administration. The Courtroom may limit the grant of review to particular bug. Under the current rules (and for some good reasons having to do with the constitutionality of deciding only part of the "crusade") it is reviewing the Court of Appeal decision, non the trial courtroom.

PRACTICE SUGGESTIONS:

1. This is the expanse on which the petition is probable to be granted or denied and probably deserves the most evolution and clearest expression.
2. Sometimes it is possible to get amicus support for the petition in the form of letters, preferably from institutional defence firms or academics, sent to the Court stating that it is important to their practice and operation or that of their courts that the issues, or some of the issues, be resolved past the Supreme Court, and why. These are generally referred to as "me too" messages, although they are patently non headed in that fashion. While such letters do not necessarily mean the Courtroom will grant review, they are informative and lend support and credibility to the extent that they inform the Court of true problems that the Courtroom of Entreatment is unlikely to exist able to resolve in a mode that aids the overall purposes of the Supreme Court review process. Nonetheless, such letters can too be a problem where the amicus may have a dissimilar interest (such equally wanting depublication rather than review or placing accent on an effect which actually has lilliputian benefit to the client as the sole issue on which review should be granted).
3. Reviewing other sample petitions may be instructive. Notwithstanding, the basic idea is to convey immediately the essential importance in the individual case and especially to land the problem clearly and concisely. The iii samples provided in the Sample Discussion of Demand for Review article includes a portion of the discussion or argument in People v. Otto, a portion of the necessity for review on which review was apparently granted in People v. Olecik, and the entire necessity for review portion in People v. Humphrey. The Court'southward statement of the issue is included in the get-go and terminal of these. Olecik was eventually dismissed along with numerous other grant and hold cases.

The Challenge

Persuading the Reader your case is interesting and worthy

Approach #1. Logical Assay of Predisposition.

In some instances, such every bit with People five. Olecik, the reason review may accept been granted was because there were other cases with the same result or pending legal changes, which demonstrated that the upshot was of some immediacy and statewide importance. In others, uniformity of awarding of new police force and general legal interest to a wide spectrum of the legal customs and beyond, plus some personal interest, may appear to be the more likely reasons, as in People v. Humphrey. In still others, matters of agency information, policy, or inter-state alignment may play a major function, which probably accounts for the review in People v. Otto. In a sense, these are cases where the Court was maybe predisposed to grant review and was looking for advisable cases.

Previous Involvement Shown - Issues Under Review Already

The appellate practitioner may take advantage of such predisposition past looking at cases where the Court has granted review. One practiced source to kickoff with is a perusal of the cases granted review on the Loftier Court Activeness folio, selecting either California Supreme Courtroom or the United States Supreme Court link to view the cases and issues currently pending review. These articles are an up-to-date source and are usually updated weekly. Each instance is given a curt blurb regarding the general field of study of the grant. Information technology also lists what cases are "atomic number 82" cases, and which are resulting in "grant and hold" orders in other cases. They are organized together topically and and then removed in one case the issue has been decided.

Previous Interest Shown - "Grant and Hold"

If there is a "lead" with numerous "grant and hold" cases, a fairly summary petition may go your case on the held listing past simply noting that review was granted in the lead and the held cases with enough detail from your case to show succinctly that it falls within the category. See a sample "Grant & Hold" petition in either Word or WordPerfect.

Previous Interest Shown - Predictions of Future Involvement

Another, more difficult, do good is that past examining the areas of electric current interest to the Courtroom you may discover that your case is one which complements others or fills in a gap, as for instance where the Supreme Courtroom granted review in several manslaughter cases and ultimately changed the law using two of them at the aforementioned time. (Come across, e.thou., People v. Cox (2000) 23 Cal.fourth 665ane; People v. Rios (2000) 23 Cal.fourth 450two; People v. Blakeley (2000) 23 Cal.quaternary 82; People five. Lasko (2000) 23 Cal.quaternary 101 [specific intent to kill not a necessary element of voluntary manslaughter and voluntary manslaughter is non reduced further by provocation or imperfect cocky-defense despite that fact]; see also People v. Lee (1999) xx Cal.4th 47.) At times information technology is possible to recognize that after review may follow other changes, equally for example People five. Birks (1998) 19 Cal.fourth 108 [relating to lesser included offenses changes] beingness a harbinger of Cox, Rios, Blakeley, and Lasko. Examples of the reasons for review are stated in the footnotes.

On the other hand, there were no credible precursors to People five. Marks, and the grant of review covered a plethora of issues beyond that on which information technology was ultimately decided. This may illustrate but a challenge that the Court felt was an interesting expanse with the potential for other interesting issues which it ultimately backed off of when a consensus did non form, resulting in a fairly straightforward decision on i event.

PRACTICE SUGGESTION:

1. The bottom line on all the belittling approaches is to expect for current pending cases of the aforementioned issue and trends or relations to or complements of problems under review already. If you can spot something of this nature, you can place more than emphasis in that area of your issues, and the reader may be more interested or may be made more than cognizant that this case has something already considered to exist of interest.
2. Read the article, "A Methodology for Determining when to Seek Review in the California Supreme Court in a Criminal Appeal." This commodity outlines how the analysis of trends can be done.

Arroyo #two. The trail blazer.

All the above is well-and-good, if it fits. The problem may exist that your case has nothing to do with annihilation pending. This means you lot accept to examine a broader perspective.

As the highest court in the state, the California Supreme Court, consisting of a Chief Justice and six associate justices, is primarily responsible for deciding cases that raise of import issues of public business organization and maintaining uniformity in state law. Your job is to convince four of them that the result should exist decided by them, not in whatever item style. Find that they practice not have to be in agreement virtually the way they want to come up out, only that the result should exist decided. Because the supreme court's primary role is to guide and harmonize the development of state law, that is i expanse to which all the justices should be looking.

Therefore, y'all desire to speak to that area. Your issue may involve some affair where the Courtroom of Appeal districts or divisions are deciding the same issue differently, or perchance they think they are and it can be reconciled (to the advantage of your client). Possibly there is some pressing problem with a new police force or suggestion which may be cryptic and an obvious source of likely trouble and you tin can see a way to harmonize what appears to exist a contradiction or otherwise salvage the day.

Sometimes it may be a matter of application, as for example in the tardily 1960's where every time the police happened to enter a building they would run into "in plain view" what "appeared to be a green-leafy substance" or where they would almost invariably hear a toilet flushing necessitating a no-knock entry. The Courtroom opinions said they changed the law, only they really sent a bulletin regarding applications. (E.g., People 5. Di Santiago (1969) 71 Cal.2d 18; People v. Gastelo (1967) 67 Cal.2d 586.)

Yet another area is one where the police force in California is out-of-stride with federal police force or the law of other states, or perhaps it has been severely criticized or defended in police review manufactures or by commentators. Being too far out of the mainstream poses problems of enforcement, particularly in this highly mobile age. Similarly, technology may create problems requiring harmonization with other states or interpretation to avert conflict with federal law.

Some cases are simply going to involve events which are unique only likely to recur due to the way in which the Court of Appeal resolved the issue, especially in published cases. These tin be specially tempting to the Court where they are of starting time impression nationally. Sometimes many litigants volition be affected, and frequently amicus letters or briefs in support may be able to exist arranged. Finally, some issues are just going to exist so of import or so interesting to big groups that the Courtroom volition have to grant review simply because the demand or interest is so obvious and the pressure for resolution is and so smashing, or even considering information technology is clear that the issue must be resolved in order to resolve many other problems (for example, the "Truth In Evidence" subpoena cases).

At times, there are cases where intermediate appellate court direction is needed, admitting it may exist more to establish degree or scope in application.

PRACTICE SUGGESTION:

1. Look for Supreme Court opinions where the Court appears to be in some disarray or sharp disagreement and is fairly evenly divided on the question in the bulk, concurring, and/or dissenting opinions.
2. Wait for U.S. Supreme Courtroom opinions suggesting that there may exist issues with the mode California views aspects of the law. Watch for Ninth Circuit opinions where information technology finds contrary to California police force.

Persuading someone else that yous presented the result

Very often, particularly in very serious sentence cases, the case may not exist inside the technical reasons for granting review but y'all may need to petition anyway to frazzle the client'southward country remedies. To do so, yous need to include the federal authorities bearing on the federal question you are attempting to exhaust. The number of "exhaustion" petitions is probably a significant portion of petitions for review.

The first trouble is that y'all may not want to damage your "credibility" with the Supreme Court past petitioning in every case. In that location are different approaches to this which essentially signal that you know the outcome is non one appropriate for a "policy" courtroom but rather is a specific application problem. Unlike approaches have been tried. One was merely making a generalized "due process (U.Due south. Const., Amend. XIV)" claim in a footnote, which is probably insufficient. Another is to signal exactly what you are doing in the "Necessity for Review" section by saying something to the issue:

"Review by this Court is necessary because evidentiary and instructional errors deprived appellant of constitutional rights nether the 6th, Eighth, and Fourteenth Amendments, considering a life term is roughshod and unusual penalty, and considering appellant must exhaust his potential state remedies earlier seeking federal habeas relief. (O'Sullivan v. Boerckel (1999) 526 U.Due south. 838 [119 South.Ct. 1728, 144 L.Ed.2d 1].)"

Of course, it is still necessary to spell out the problems and cite federal authorisation. The burnout aspects are covered in "A Methodology for Determining When to Seek Review in the California Supreme Courtroom in a Criminal Entreatment." However, while that may or may non solve the immediate trouble, things become more complex when you have a "real" issue for review plus a series of bug on which you are exhausting remedies. Use of language such as that suggested above could effect in that existence all the Court sees. You may want to use a proficient deal of your xxx pages/8,400 words to set forth the "real" issue, and in any upshot you do non want to detract any more than necessary from that result by such linguistic communication or non-review issues.

One solution to the "mixed" issues problem is to utilize an "Other Issues Presented" portion of your Give-and-take or Argument section and to include a summary argument in your Bug Presented portion. In the "other problems" section y'all might merely state the result in a very abbreviated way and and so cite the federal potency, listing each separately only using no more than a brief subheading and a curt paragraph. Y'all may, and probably should, also want to brand sure that the event is in fact a possibly cognizable federal upshot and, if not, and if you are sure it is not reasonable as a footing for review, and then eliminate it.

The second trouble is that you should not jump ship also fast in regard to whether the Supreme Court may exist or not be interested. As noted earlier, one way to become review may be to show that California law needs to be harmonized or explained in light of other jurisdictions, particularly federal law. Information technology is necessary to carefully evaluate your problems and arroyo and then you do not throw away something in which the Courtroom, unbeknownst to you, has an immediate interest.

The third problem is that you want to make sure that you are expressing the outcome in terms which if your petition is denied (every bit is very likely) when the federal petition is filed past your client and the respondent looks at your petition to see if it exhausts the federal issue it actually covers the issue your client wants to raise. This takes some care in phrasing.

Do SUGGESTION:

1. Keep in mind the fact that your petition is very likely to be denied and that you may need to exhaust your client's state remedies for habeas purposes. While you may want to signal that issues are beingness exhausted, you may also want to avoid losing other issues which are viable candidates for review. The petition for review should be a very custom certificate in each case equally information technology fits that case. It should never just exist a pro forma epitomize of your conference below, nor should it be a "cut and paste" regurgitation of the opening brief. While that method is like shooting fish in a barrel, it is not "customized." A customized issue includes some careful redrafting with both state and federal analysis of the issue and the Court of Appeal'southward treatment of it.

   The alternative to filing a regurgitated brief is to file a new rule 8.508 -- and then chosen "exhaustion petition." This abbreviated petition for review may be filed where the problems don't qualify for review nether rule viii.500(b), simply the petition is necessary to frazzle country remedies in order to preserve issues for federal habeas review. The following criteria must be met: ane) "Petition for Review to Exhaust State Remedies" must appear on the encompass of the petition; 2) it demand not comply with rule 8.504(b)(ane) [questions presented] nor (b)(two) [explanation of how the case presents a ground for review nether rule 8.500(b)]; 3) it must comply with the residuum of rule 8.504, which covers form, a statement regarding a petition for rehearing, re-create of the Court of Appeal opinion and/or order, title and designation of parties, length, and attachments and incorporation by reference; 4) information technology must comprise a cursory argument of the underlying proceedings, including the conviction and penalty, and the factual and legal bases of the claim; five) it requires merely an original and 8 copies and demand not be served on the superior courtroom clerk. (Rule 8.508(c).) Caveat : None of this changes how federal courts define what is adequately preserved and exhausted. At this time, the federal courts have not spoken on whether rule 8.508 petitions fully meet federal requirements.

2. Note, though, that you should not await until the petition for review to heighten your federal issues with federal authorization. Matters not raised in the Courtroom of Appeal may be waived as far as the Supreme Court is concerned, and therefore and so far equally the federal courts are concerned they may be procedurally defaulted. On the other hand, if you have raised them as federal problems, then there is no reason you lot cannot burnish the federal authority a scrap more than to be certain that it is articulate y'all did nowadays the federal consequence.

Realizing your audience

Wait at the internal operating procedures of the California Supreme Court. (Particularly part "Four. Conference Memoranda.") The determination to grant or deny review is made at the Wed weekly conference. It is made largely on the ground of staff memorandum. As the procedure states, typically there will be from 120 to 180 matters considered at the weekly conference. Information technology should be articulate that your 30 pages/8,400 words of advisedly crafted work is not going to be read by the Courtroom, at least non in most cases. You are writing for the Court staff. This ways y'all should non assume that the staff member has expertise in the matter you are discussing and urging, nor should you assume the staff member will divine on his or her own the significance and importance of aspects of your issue. You demand to make the issue clear and the context of its importance clear, you need to country it in easily understood terms, and you demand to be aware that yous may be dealing with someone whose background and expertise is in some other area. Do not exist insulting, simply practise not brand assumptions.

The staff member may besides be aware that the Court is looking for particular issues. Therefore, you lot need to be sure that the issues are briefly (considering of the workload), clearly stated at the start.

Remember the staff member is going to take to ready a brief memorandum. If y'all provide something short that he or she can utilize, you have a better chance of it existence incorporated, not to mention a certain warm spot in the staff member's heart. Similarly, agree downward the outrage and practise not get personal because it does no good and may not get translated unless information technology is really unusual. No one likes contention, least of all someone passing along another person'due south animosity.

The memorandum will theoretically summarize the relevant procedural or evidentiary facts, relevant rulings, and the issues. The merits of the issues and a recommendation are included. Of course, the particular and expression will depend on the example and staff member, and to some extent on how usable your petition is. Brand information technology like shooting fish in a barrel to summarize.

PRACTICE Suggestion:

1. Write the petition in clear, non-complex terms with an understandable context for an overworked staff fellow member whom you want to assistance incorporate your deathless prose into the memorandum. You want to become the staff attorney to recommend that your case be ane of those which go more than than momentary mass consideration and burial.
2. Write for the Court as well since it may come up to that for the concluding conclusion or may later be reviewed in deciding the case.
3. While the staff may be interposed, it is composed of vivid persons who should not be insulted as to their intelligence, nor should a justice who does meet something which catches her or his interest have to endure a pedantic tone.
4. If y'all are highly frustrated and aroused and perceive bias and twisting of the law to a result and cannot get into the professional mode, get ahead and let information technology flow, but practice not file that draft. A sure amount of outrage, properly expressed in a very clearly proper example for it, may convey the importance of the Courtroom of Entreatment having grossly overstepped its premises. But exist sure it has. Ever put such a petition aside for a day or ii, then review the opinion once more to exist sure. Proceed the objective yous take in heed. Then review and edit the petition. If in doubt, have someone else read the petition before it is filed or talk over it with the assigned project buddy. Your reader is not usually interested in your feelings and has his or her own objectives. The reader'south interests and objectives are what can effectively be addressed.

Beating the odds

There are ordinarily a huge number of filings which the Courtroom must act upon within sixty days or less. The Supreme Court'due south practise of its discretion to grant or deny petitions for review consitutes a significant part of its workload. Since 1992, the average per centum granted is approximately 4%.

For the fiscal yr 2001-2002, out of 3,093 petitions from criminal appeals, 136 were granted, 74 were granted and held, 24 were granted and transferred to the Court of Entreatment, and the rest were either denied or pending. The per centum granted was 4%.

For the fiscal twelvemonth 2000-2001, out of 3,384 petitions from criminal appeals, 83 were granted, 64 were granted and held, 38 were granted and transferred to the Court of Entreatment, and the rest were either denied or pending. The percent granted was three%.

Having the Courtroom of Entreatment publish the stance logically should increase the chances of getting review since a published opinion serves as authority in other cases, increasing its importance and visibility. When you lot write the petition, you should include that the opinion is certified for publication, and note whatever concurrence or dissent.

Although considerably dated, one onetime Supreme Court justice publically described his process of considering petitions as follows:

Each Wed throughout the yr, except for calendar weeks and the starting time calendar week in July and August, the courtroom meets in the chambers of the Main Justice. There, we consider and take activity upon petitions for hearing, for boggling writs, and for a diversity of other petitions and motions, including State Bar disciplinary matters. On each of these matters a briefing memorandum has been prepared, either by the attorneys in the courtroom's central staff (who handle about criminal conference memoranda) or by a justice to whom the affair has been assigned in rotational order, and his or her staff.

Whoever is responsible for training of the conference memorandum assigns it to either the "A-list"' or the "B-list."' The former consists of those matters that appear more significant or controversial, and therefore more appropriate for conference word. The latter consists of those matters that require little discussion, as denial of the petition or move appears to be conspicuously indicated. The assignment is tentative, nonetheless, for ofttimes a justice will request that a B-listing matter be continued for discussion as an A-list thing at a afterwards date.

Subject field to such requests, the court at briefing approves the denial recommendations on the B-list matters, and proceeds to discuss each item on the A-listing. First, the justice responsible for the memorandum sets forth his or her views. And then, each justice in plough, offset with the almost senior and ending with the Chief Justice, is given an opportunity to comment and vote. Some items on the calendar are disposed of very quickly--in a minute or 2-- while others crave extensive discussion. Ultimately, four votes are required for whatsoever disposition.

The volume of items on the Wednesday agenda has become increasingly impressive. Not many years ago, information technology was rare for the agenda to include more than twenty or 20-v items. Now, it is rare for the agenda to include fewer than 100, and in conferences afterwards a skipped week, such as calendar week, the agenda frequently exceeds 170. Typically, about two-thirds of these items are B-listed, merely the petitions and memoranda have to be read and considered withal. The job is not one for a slow reader.

While each justice has a distinctive approach in preparing for briefing, mine is probably typical. As each agenda particular is received in my chambers, it is assigned to a member of my staff. A memorandum is prepared, with varying degrees of consultation on my office regarding its contents and recommendation, and is and so submitted to me for approval. After I have canonical, the memorandum is duplicated and distributed to all justices. The deadline for submission to the secretary's office, to allow timely duplication and distribution, is iv o'clock of the Th afternoon before briefing.

Friday afternoon, I receive the petitions and memoranda from the other justices and the court'due south central staff. These I have with me over the weekend to read, making note of the cases that seem to me to crave further research or word. Mon morning, I circulate among my staff a list of cases, with individual assignments to members of my staff, requesting either a brief supplemental memorandum or elaboration at staff conference. Tuesday afternoon, I meet with my staff and talk over the more than challenging cases. Tuesday evening, I take home for review the petitions and memoranda in my "ain"' cases, too as any other cases that seem to require further study. Conference begins at ix:15 the following morning." (72 Calif. L. Rev. 514, 517-518, footnotes omitted.)

The workload has increased considerably, and many years have passed since the above was written in 1986 by Justice Grodin. However, it does provide a rare insight. The years have not brought much change to the process, as reflected in the current internal operating procedures (encounter Parts "3. [Weekly] Conferences" and "IV. Conference Memoranda").

Several things stand up out. The initial "A" or "B" screening is washed by someone other than the justices. A justice reads simply a pre-screened set of our petitions. Matters which are "important" or "more than controversial" may get a boost. Matters which require little word are those for which deprival is "clearly indicated." Those slated for the "B" listing are treated as a batch, and information technology is but if a justice requests further consideration that an detail can escape the grouping dispatch. The others are individually treated. The total time on many may be simply three or four minutes, which suggests that brevity remains the necessary central even for those on the A list.

A bones function of the discretionary petition and the adequately summary conference is to permit the Supreme Court to control its workload within some manageable framework. Put more than frankly, it is a way of avoiding existence buried by the demands to exist heard. This aspect is the negative side, but it also has its own negative constraints. The public would not react well to a perception that the law was existence fabricated past refusing to hear cases in a not-public hugger-mugger way unless at that place was some residual in the types of cases, litigants, and issues, and the Courtroom already suffers from considerable criticism regarding depublication as a way of deciding or burial issues. Public involvement is therefore a matter which is likely to weigh heavily, equally is the need for disinterestedness and fairness in terms of fostering the perception that the Court is indeed only concerned with keeping its workload appropriate and reasonably manageable.

In the same vein, the workload aspect should hateful that a petition with a sharply developed outcome is more likely to gain review than is one where the Court must do a nifty deal of piece of work simply to define a narrowly stated issue. Tape size is an interesting question, probably non worth pursuit, and from the representative standpoint nosotros have as defence appellate counsel, it is one over which we have no command. What we can control is the emphasis in our petitions about terrifying complexity of the record or facts. This does non mean surrendering to oversimplified statements which leave the problem colorless. It does hateful good organization, interesting presentation, convincing points on the need for review and not emphasizing the work invested getting there.

PRACTICE SUGGESTION:

1. Tone is important. Conviction, affirmative presentation, a full grasp of the affair that brings about a feeling the person reviewing the petition (who may exist a justice in the first instance on overflow petitions) can trust the petition. A concise presentation that is easy to read and follow are all good things. Bad things are hysteria, angry criticism and personal attacks, and anything else that suggests you are just venting. The Court is taking valuable time and resource to review the petition. Information technology has the right to expect its fourth dimension is being treated with respect on a serious thing. A petition is not simply so that the author tin demonstrate erudition and knowledge or limited dissatisfaction with the result generally, and certainly not to achieve personal satisfaction at making a useless tape of the perceived stupidity and bias leading to the opinion. Convince the Court you are serious almost the merit of what the petition presents, and the petition will be harder to dismiss out of hand. (Incidentally, if you succeed in obtaining review, that will not go unnoticed by the Courtroom of Appeal.)

The Means

The initial and perhaps only office which will be read - TOC

Anybody reads the Tabular array of Contents. Therefore, it is the almost important section of the petition. It should exist framed to get the issues out clearly at the get-go opportunity. Information technology should be phrased to grab the reader's interest. It should exist organized to present the bare-basic outline of the petitioner's position at a glance. Information technology should entice the reader to move to the next sections, and it should exit an impression of solid thought and importance existence likely to exist present in what is to come up.

Encouraging a reluctant reader to have a taste – Questions Presented

For example:

Sample A:

1. "Did the trial court err in defining the mental element of attack as whether the defendant willfully and unlawfully committed an deed that by its nature would probably and directly result in the application of physical force on another person?" (People v. Williams, S076262)

Sample B:

1. "Whether Omission to Object to Improper Venue at the Preliminary Hearing Constitutes a Waiver of the Issue on Appeal Where the Upshot Is Litigated at Trial?
2. " Whether The Trial Courtroom Committed Reversible Error in Refusing to Instruct the Jury, Upon Asking, That in Order to Captive it Must Notice Proper Venue?" (People v. Simon, S077855)

Both of the above are statements of the issues from briefs in cases where review was granted. Compare the two of them for clarity and readability. They are both good, but one is easier to read and less visually distracting from the result itself. Neither exceeded a few seconds per issue to read. Both supplied the truly essential background data.

Telling the reader quickly why to read further - Need for Review

The Necessity for Review section and some examples have been discussed previously in other contexts. The objective is to provide a cursory, articulate, and convincing reply that the reader can give for recommending that review exist granted. The other objective is to keep the reader reading.

In exhaustion cases, this may be as far as you demand to go.

In some cases, the writer may merely put in the applicable phrase from dominion 8.500(b). (E.g., "This case presents an of import question of constabulary of statewide importance.") Still, that had better be obvious from the Table of Contents and Issues Presented portions or the author should be confident that the reader will motion on to the expanded explanation and non just scan that caption. In some cases, it may be possible to be brief:

E.yard.: "This case presents the same issue as that in which the Court has granted review in X, Y, and Z. The petitioner here volition request that review exist granted and the case held for the reasons prepare forth in Part I of the Word. Essentially, the benefits of a favorable ruling may be more efficiently practical on a remand than by forcing a propria persona petition by Mr. Appellant who has no ability to communicate in English, and a favorable decision is both likely and would effect in reversal."

E.g.: "The result hither is Z. The published conclusion in this example is in direct disharmonize with published decisions in the Third, Offset, and Fifth Districts, and is an unjustifiable extension of cases in the Second and Fourth Districts. (See Statement, Part II.) This Court specifically reserved the question of the meaning of "other occasion" in footnote x of the recent stance in People v. West. As explained in Part I of the Argument, the result has been fully developed below (run across also attached Slip Opinion, pp. yy-zz). In the following brief Summary of relevant facts, it will become apparent the issue has wide application and trial courts are compelled to guess at the pregnant, resulting in inconsistent decisions."

Consider the context - Statements

If you have non already brutally edited the statements of case and facts, and if you plan to include this information in your petition, this is the time to be merciless. Pare dorsum to the basics necessary for an understanding of the case or such other purpose every bit y'all may have in mind. In federal exhaustion petitions, you may desire to cut this to a paragraph or fifty-fifty a judgement, or if appropriate simply to refer to the statement in the attached opinion.

Remember that the reader has to exist sufficiently motivated to get beyond this section. If there is some unusual or interesting pertinent matter, effort to nowadays information technology in a way which volition keep the reader'southward interest going. In all cases where a statement is included, try to make information technology as interesting and articulate and concise as possible. Yous want to provide something that the staff attorney tin can put into his or her memorandum and to make the attorney desire to exercise so. If at all possible, information technology should move right along.

On the other paw, your case may exist i with compelling procedural or outcome facts which form a story from which the issues presented naturally arise. The context may demonstrate the importance of review, or it may be necessary to grasp the issues. If you are lucky, the statements may relate a situation with an obvious miscarriage of justice. While the Supreme Court does not sit down to correct case specific errors, the reader is human and may be moved in a close case to put the thing on the A rather than the B list.

Practise Proffer:

1. As a reality check, look at the style in which the Courtroom of Entreatment treated the facts. If you spark the interest of the reader and Court, information technology is non unlikely that they will wait to the opinion to run across how the court's opinion viewed the situation.
2. When reading Supreme Court opinions, particularly in the area of involvement, take a moment to see how it dealt with the facts.
3. Consider your overall space and objective and enquire whether the facts might more than finer be incorporated into the argument or an introductory function of the argument in which y'all will make the pitch to exist heard.

Discussion proving the case for examination - Argument

If the reader gets this far, now is the fourth dimension to set the hook firmly. The reader may have arrived straight from the Tabular array of Contents, not stopping at "Problems Presented" or whatever "Summary of Relevant Facts" or even at the "Necessity for Review" portion. Your well-crafted heading will have informed the reader of your issue and hopefully of its importance in a summary fashion. You can very briefly summarize your previous summary of the summary of the facts needed for context, but become to the point of why this instance should be one of the iv% of the cases where review will be granted.

At times it is difficult to restrain oneself, only remember the objective here is to get review, not win the case on the merits. If you lot go review, then you will file your brief on the merits. The Court of Appeal volition take sent its record, and the reader can make reference to that if demand be, although you cannot incorporate your lower courtroom briefing. What yous are trying to do is become onto the A list and demonstrate that the Courtroom of Appeal decision (not that of the trial court) should be reviewed.

On the other hand, you tin at this indicate expand somewhat on the upshot and how it appears in your case, and why your before conclusion that the Courtroom of Entreatment opinion should exist reviewed is not merely viable but compelling. The reader who may not be well acquainted with the more cabalistic bug tin can at this point accept some very brief education on the subject. The viability of your position and the claim may be one and the same in many respects, and in that case you may even debate the merits more than you lot would in other cases.

You may have a very well-known area of the law and not need to go into it broadly. If so, don't. Make sure your result is clear, show how it was brought to the court beingness reviewed and how that courtroom dealt with it, why the methodology or basis or whatever y'all desire reviewed was wrong, and particularly why that is of import to a policy making court. If other cases are going to exist affected, say so, and if necessary explain. If there is some impact on the administration of the law or constitutional problem or disharmonize or whatever, say and so and why that is a real and present reason why the court should take your case out of more a thousand others.

Simply, remember, you want your statement read and preferably presented past the memorandum as something for the justices to discuss. It must be "brusque enough" but too information technology must have the footing to generate a word among the justices and a certain confidence that the outcome they want to reach is there.

Besides, if yous desire to be adventurous, a certain corporeality of leeway may be permitted. If in doubtfulness, check with the project regarding your imaginative idea. Some examples might include citing police review articles or technical or professional person journals in not-legal areas or citing major magazines or newspapers as illustrations of the problems or interest in the event yous want heard.

The obvious or a summary - Determination

There can be different styles for the Conclusion. Selection may depend on the individual case. Some may experience that an extremely brief summary is useful so that the reader who turns in that location start to see what is requested gets the benefit or then that the reader has the more than complex reasons for granting review neatly summarized in a page, or two at the very most, for the memorandum. In other instances, the additional comment may be eliminated in favor of a simple asking that review be granted

Word Count Certificate

As of January ane, 2003, the petition must contain a Word Count Document. (Rule viii.504(d)(1).) The Supreme Court clerk will wait for information technology inserted subsequently the Conclusion and before the copy of the appellate stance. The discussion count maximum is 8,400 words; do not count covers, tables, proof of service, or the appellate stance.

Problems to Avoid

Land your case, not your anger

This has already been mentioned, simply it is repeated here because it is one of the most hard things to do after some particularly egregious action by the Courtroom of Appeal. The cooling off period and use of a more removed reviewer are highly recommended.

Say why you should be heard, not a briefing of the claim (usually)

This is also a repetition, but it is useless to but show that the Courtroom of Appeal did not correctly determine the instance if there is no reason compatible with the function of the Supreme Court. In view of the number of petitions vying for review and the small percentage which can exist granted, this is no time to exist retiring most the actual objective of a petition for review.

Remember nearly your customer's best interest, not your own glory

Do yous really want review? Sometimes you lot may have a particularly interesting issue of first impression, but you accept too already garnered your customer relief. 1 example of such a example is People five. Hendrix (1997) 16 Cal.4th 508, where the Attorney Full general was successful in an unpublished decision upholding the Three Strikes sentencing of the appellant on the issue of whether the consecutive sentences were proper. The Attorney General, who has considerations which the individual appellant does not take, sought review because the 5th District ended consecutive sentencing was not mandatory as it also ended the trial judge understood. The net result was that the Supreme Courtroom concluded that the Iii Strikes law was structured in a fashion in which the trial court did accept discretion, and it therefore remanded non only for the purpose of permitting the trial court to exercise discretion to strike (as the Fifth District had on a limited remand) simply as well for the purpose of exercising its discretion every bit to how the sentences should be run. While this may exist well-and-good for an institutional party such equally the Attorney General, the bottom line was that by petitioning, the favorable result achieved in the Court of Appeal was reversed and the application of the constabulary existence protested became the standard3.

WHEN Not TO PETITION

A petition for review should not exist filed in the following instances:

1. There are no federal issues and the Court of Appeal simply applies well-established unassailable law. A petition in this instance will get onto the B list with no reason to save it. This is the bones "not-review" instance.
2. The non-review case where in that location are federal issues which will clearly be adamant against the petitioner anyway based upon the state decisions and Anti-Terrorist deed.
3. The case where in that location is a gamble of losing a gain in the Court of Entreatment balanced merely by a very speculative chance of some minor further gain (e.g., reversing agile counts in the Court of Appeal in an uncertain area but petitioning for three days of credit based upon a waiver event).

Of course, the fact you lot may make bad law is not a practiced reason to abandon petitioning when it is in the customer'due south interest with a reasonable possibility you might prevail.

In whatsoever example where there is a counterbalanced gamble that obtaining review might result in harm to the client, the client should be fully advised (if possible) and given the opportunity to brand an informed election of whether to stop or petition.

In any case where a petition is not going to exist filed, this should be known in most cases immediately later the opinion is reviewed, and the customer should be sent the record and instructions on how to file a petition and the time limits. The client should also be advised of whatsoever risks of adverse consequences. The client ideally should be advised of his writ remedies, if any, likewise.

These are not "rules" and then much as "guidelines" since there may be other reasons for filing a petition. All the same, frivolous unreasoned petitions should be avoided.

LAST DITCH Attempt ALTERNATIVES

There are some alternatives which can be considered. A request for depublication, a petition seeking grant-and-hold (run across a sample in either Word or WordPerfect), a petition seeking a grant-and-retransfer (especially where the Courtroom of Appeal gave no reasons for its decision or there is some controlling case the stance ignored for the Supreme Court to transfer "in light of"). The grant-and-hold option presupposes the presence of a atomic number 82 case already before the Supreme Courtroom, and it also presupposes that the Court has non already reached what appears to be an adverse consensus. Depublication is likely to be granted where the case is not review fabric but leaving it published is probable to build an increasing trunk of likely error and other intermediate appellate court corrections are not likely or would exist ineffective.

Circumspection should be exercised in trying to mix a request for review with some lesser culling. Reasonable minds can differ. The Court is plain enlightened of its options, simply it may not consider them. On the other hand, to remind it of a way to dispose of the trouble without actually granting a chance at relief is a shaky proffer and may bear witness a lack of conviction in whether review is appropriate.

1 . "We granted review in this example to determine whether conviction of involuntary manslaughter based on "an unlawful human activity, non amounting to felony" (Pen. Code, 192, subd. (b)), i.e., a killing resulting from the committee of a misdemeanor offense committed with general criminal intent, requires a further showing that the predicate misdemeanor was dangerous under the circumstances of its commission. The Courtroom of Entreatment beneath read our recent decision in People 5. Wells (1996) 12 Cal.quaternary 979 [l Cal.Rptr.2d 699, 911 P.second 1374] (Wells) equally impliedly property that in cases not involving criminal negligence, conviction of involuntary manslaughter past "an unlawful act, not amounting to felony" (sec. 192, subd. (b)) requires just that commission of the predicate misdemeanor law-breaking with general criminal intent exist shown. As will be explained, the Courtroom of Appeal erred in approval the trial courtroom's erroneous pedagogy on the nature of the elements of involuntary manslaughter."

two . "[Chiliad]alice is non at consequence upon a charge of voluntary manslaughter; indeed, a manslaughter charge concedes the absence of the murder element of malice. Hence, a conviction of voluntary manslaughter is supported by proof and findings, as here, that the homicide was unlawful and intentional. There is no additional need for the prosecution to establish that malice was lacking past reason of provocation or a belief in the need for cocky-defense. Malice is not at issue upon a charge of voluntary manslaughter; indeed, a manslaughter charge concedes the absence of the murder chemical element of malice. Hence, a conviction of voluntary manslaughter is supported past proof and findings, as here, that the homicide was unlawful and intentional. There is no additional demand for the prosecution to establish that malice was lacking past reason of provocation or a conventionalities in the demand for self-defense."

iii . The Hendrix case likewise contains another lesson. The Court of Appeal chaser for Mr. Hendrix had accomplished a victory regarding getting the case remanded. He was and then faced with a situation in which he could put that victory at take chances by petitioning in regard to the confidence and by petitioning in regard to the refusal to remand for a determination of the consecutive or concurrent sentencing, the very issue on which the Attorney General petitioned. Since the chances of review were minimal on the merits of the convictions and there was a remand where in many respects the client would be able to make the same arguments every bit he might on sequent terms, plus the difficulty of overturning the Courtroom of Entreatment decision that the trial courtroom knew of its discretion, he took his benefits and did not petition. Due to health problems, he sought to be relieved when the Supreme Court granted review. Replacement counsel was appointed afterward the fourth dimension to file a petition for review had run and after the time to file an respond had run. The Supreme Court foreclosed numerous problems that replacement counsel attempted to raise both as ancillary to the effect granted and as burnout/confidence problems because despite the unlimited order granting review at that place had been no timely petition or endeavour to raise these in the respond. While original appellate counsel was rightly concerned that responding to the Attorney General's petition might provide it the appearance of greater importance, generally speaking the very fact that the Attorney Full general would chose to petition already conveys that fact, and not petitioning could take resulted in a failure to exhaust. Bold the problems were such that they would not have garnered a review on the appellant'southward petition, nothing would have been lost, and perhaps the additional problems might have caused a denial of review in the case.

Dorsum TO Tiptop

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Source: https://www.capcentral.org/procedures/petitions/p_review/pr_basics_prep.asp

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