Bigger Court Won’t Be Speedier

<i> Gerald F. Uelmen is a professor at Santa Clara University School of Law. He serves on the board of directors for the California Habeas Corpus Resource Center and offered testimony in opposition to the Senate bill</i>

In a rare appearance before a legislative committee in May, California Supreme Court Justice Stanley Mosk urged state senators to approve an amendment to the California Constitution to create two Supreme Courts--one for civil cases, the other for criminal appeals. This idea was first proposed by Mosk in an Op-Ed piece 15 years ago. The dissenters to this proposal, however, now include all six of Mosk’s colleagues on the court.

Nonetheless, Mosk made a convincing case that we need more justices to handle the Supreme Court’s workload. The Senate Committee on Public Safety approved a compromise that would retain a single Supreme Court with one chief justice but set up two divisions of seven justices each, both of which could hear both civil and criminal cases.

Ironically, the proposed relief would come at the same time that the court, under Chief Justice Ron George, is achieving greater productivity. Last year, the court decided 25% more cases than the previous year and granted hearings in 236 cases, the highest number in 10 years. At the same time, the court “depublished” (which prohibits citations used as precedents) only 53 Court of Appeal decisions, the lowest number in 20 years, thus encouraging lower courts to publish more precedents at their level.

What then motivates a move to expand the court? Ultimately, it’s the growing backlog of death penalty cases. There are now more than 300 undecided death appeals on the court’s docket, and new cases arrive at twice the rate the court is deciding them. The George Court has decided 14 death cases in each of the past two years, a sharp drop from the previous court average of 24 per year.


The problem is not a shortage of justices, however. It is a shortage of qualified defense lawyers. More than 150 of the 500 occupants of California’s death row still lack counsel to handle their appeals. George gave this problem his highest priority and succeeded in raising the rates paid to appointed counsel and persuading the Legislature to fund a new Habeas Corpus Resource Center to expedite the handling of habeas claims concurrently with direct appeals. These moves will help break the logjam, but neither will produce a flood of rulings soon. Currently, there are only 20 death cases that are ready to be argued during the coming year.

The proposal for two courts is based on an approach utilized only in Oklahoma and Texas. Neither of these states offer a model worthy of emulation. In Oklahoma, the Court of Criminal Appeals is the only court in the state with jurisdiction to hear criminal appeals, so it makes sense to divide civil and criminal cases. In California, the Supreme Court rides herd over 93 intermediate appeal justices, and it would inject great confusion into the system for these courts to have two Supreme Courts to look to for guidance and supervision.

The Texas Court of Criminal Appeals decides about 30 death penalty appeals each year, not a great gain over what the previous court managed. Texas lawyers frequently complain about the inconsistencies between the rulings of Texas’ two high courts, since much of the law they construe arises in both civil and criminal cases. A blue ribbon commission recommended consolidating the two courts 25 years ago, but the recommendation was defeated amid political wrangling.

More ominous, however, is the tragic politicalization of the Texas court over the death penalty issue. Candidates for the court have been elected on platforms promising to uphold more death judgments. The court currently affirms death appeals at a rate of 96%, the highest in America. The court is seen as less prestigious than the Texas Supreme Court, which hears civil appeals. Judges of the caliber of Mosk would not be motivated to seek appointment to a court fed a steady diet of death penalty cases.


The Senate committee’s compromise to expand the court to sit in two separate panels would turn Supreme Court review into what would amount to a lottery, with the outcome of many cases hinging on which panel was assigned to hear the case. Giving the chief justice the discretion to pick which panel hears a case would inevitably lead to accusations of political manipulation. Although the court could vote to have some cases heard by all 15 justices, this would create two classes of decisions, those rendered by panels, and those rendered by the full court. Having 15 justices sit en banc would be costly, unwieldy and inefficient.

A task force appointed by the chief justice will report later this year on recommendations to improve the structure and efficiency of California’s appellate courts. Most death penalty states are choking on the same systemic overload we face. The real challenge for all these states is to control the local prosecutors whose political grandstanding produces more death verdicts than the system can possibly digest.