Unpublished opinion review blues

MOSKOVITZ ON APPEALS

Note: I'm not the only one on our Team with appellate experience. My associate attorney, Chris Hu, was a research attorney for a 9th Circuit judge, and then served as research attorney for a California Supreme Court justice. Here are a few tips from Chris.

Imagine you just lost an appeal in the California Court of Appeal. Your client wants you to petition the Cal Supremes for review. Like most Court of Appeal opinions, yours is unpublished. What do you do?

Start by taking a hard look at whether to file a petition at all. In the most recent year for which data are available, the California Supreme Court granted only 6 percent of petitions filed in civil cases -- a pretty low number. But your chance of getting review is even worse than that, because the 6 percent figure includes "grant and hold" and "grant and transfer" cases, which typically do not entail full review of the case. (Cases may be granted and held when they involve an issue already pending before the Supreme Court. Grant and transfers send the case straight back to the Court of Appeal, usually with instructions to reconsider in light of a recent change in the law.)

Looking only at full grants in civil cases, the overall grant rate is a mere 3 percent. For unpublished opinions, the grant rate is almost certainly lower than that. Roughly 85 percent of Court of Appeal opinions in civil cases are unpublished. Yet over the past two years, review of unpublished opinions made up only about 10 percent of the Supreme Court's civil docket -- meaning such cases are significantly underrepresented, even among the tiny fraction of petitions the high court grants.

That's not surprising, as the Supreme Court typically grants review only when necessary to "secure uniformity of decision or to settle an important question of law." (Cal. Rules of Court, Rule 8.500(b)(1).) An unpublished opinion can't create a conflict in the law, because it cannot be cited as precedent. And if the Court of Appeal chose not to publish its opinion, that suggests the case doesn't involve an unsettled legal question.

Still, the Supreme Court does grant review of a tiny handful of unpublished opinions every year. How do you know whether your case has a shot at being one of the lucky few? And if you do seek review, how do you increase your chances of success?

To explore those questions, I identified every instance in 2016 and 2017 in which the Supreme Court granted full review of an unpublished civil opinion. (I chose this time span to avoid discussing any cases that were pending while I was clerking on the Supreme Court.) By my count, there were only six such cases. I then looked at the petitions for review in these cases. They shared a common theme: all explained to the Supreme Court, either expressly or implicitly, why the case was worthy of review despite resulting in an unpublished opinion. From the successful petitions, I distilled three questions to consider:

1. Is there a procedural reason why other cases involving your issue are unlikely to result in published opinions?

Three of the six successful petitions involved questions of appellate jurisdiction. An order dismissing an appeal for lack of jurisdiction is unlikely to be published, yet it implicates the Supreme Court's interest in the fair, efficient operation of the appellate courts.

Another successful petition involved an issue of California law that is frequently litigated in federal court. By noting that fact, the petition showed why the Supreme Court shouldn't wait for a published opinion: if the issue is seldom litigated in state court, a better "vehicle" for review may not be forthcoming.

So in these cases, review of your unpublished opinion might be the Supreme Court's only chance to deal with the issue.

2. Does the opinion in your case follow one side of an existing split?

Sometimes, a split of authority is so entrenched that the Court of Appeal simply picks one side of the split, resolving the case in an unpublished opinion because it is not adding any new analysis.

Other times, as in one of the cases I reviewed, the Court of Appeal refuses to acknowledge that the case implicates a split, and it decides the case in an unpublished opinion because it believes itself to be bound by precedent.

Either way, you may be able to use lack of publication in your favor. It can show that the split is a "mature" one that is ready for Supreme Court review.

3. Is there an absence of published authority on an important issue, leading to divergent results?

When there are divergent results in the lower courts, but no binding authority on point, the Supreme Court may choose to let the issue "percolate" until there are published decisions fleshing out the legal analysis.

Occasionally, though, a petition can show why the Supreme Court needs to intervene now. One petition in my study grabbed the reader's attention by describing the statewide urgency of the issue -- public entity liability for sewage backup. The petition then discussed unpublished Court of Appeal opinions reaching sharply divergent holdings on that issue. (This is an exception to the usual ban on citing unpublished opinions.) Had the Court of Appeal simply misapplied existing law, the Supreme Court may not have stepped in, but the petitioner was able to make persuasive use of the absence of binding authority.

Emphasizing one of these themes -- or articulating a different reason why lack of publication should not count against you -- is no guarantee that your petition will be granted.

But without any such explanation, your chances are probably closer to zero than the overall average of 3 percent.

Although Chris clerked for a justice on the California Supreme Court in 2014-2015, the views expressed here are solely those of the author. This article does not purport to reflect the views of the California Supreme Court or any of its justices, and is based entirely on information available to the public.