Changing the Court for a Changing California

As California confronts transformation in its judicial system, with consolidation of Superior and Municipal courts and the state assuming financial responsibility for most of California’s newly consolidated trial court cost, imperatives exist for reexamining the California Supreme Court.

Not since 1904 and establishment of the District Court of Appeal as an intermediate appellate court between the Superior Court and the state Supreme Court have so many judicial changes occurred. While California’s population, its criminal and civil actions, its lawyer enrollment and litigant numbers have soared, the Supreme Court remains untouched, even unperturbed.

California’s 1880 census showed 864,964 residents; today it’s nearly 33 million. Yet our state Supreme Court has the same number of justices--7--as in 1880. While every consolidated trial court decision is appealable as a matter of right to the California Court of Appeal, our Supreme Court entertains only those cases from the Court of Appeal which, in its unlimited discretion, it wants to entertain.

The state Supreme Court thus accepts few cases and only those necessary to secure uniformity of decision among differing District Court of Appeal rulings or to settle important questions of law. The Supreme Court’s sole appellate jurisdiction lies with death sentence cases. Otherwise, the Court of Appeal, with six districts and three-justice panels, possess all appellate jurisdiction.

Until 1966, the Supreme Court, consisting of a chief justice and six justices, could be divided into two divisions to consider petitions for review. Since 1966, petitions for review have increased exponentially but the percentage of the reviewed cases has declined. For example, in 1986, 3,498 petitions for review were filed; in 1997, 5,163 petitions for review were filed, an increase of almost 48%. Whereas in 1986, 7% of petitions for review were granted, by 1997 only 4% of all petitions for review were granted.

Jurists have commented on the incongruity of trying to dispense the ultimate in justice with but seven justices. The court’s most venerated member, Justice Stanley Mosk, former Superior Court judge and attorney general, 15 years ago proposed division into a Supreme Court for Criminal Appeals and a Supreme Court for Civil Appeals with seven justices on each, appointed by the governor and confirmed by the Commission on Judicial Appointments, consisting of the chief justice, the attorney general and the senior presiding justice of the Court of Appeal.

I introduced Senate Constitutional Amendment 31 to effectuate Mosk’s logical proposal. A Senate Public Safety Committee hearing led to an alternative, namely, reestablishment of two divisions of the Supreme Court, each with seven justices and a chief justice at the apex assigning justices and petitions for review to each division. As amended, SCA 31 was approved on a 5-2 vote by the committee June 9. It awaits action by the Senate Judiciary Committee.

Meanwhile, legal pundits abound, criticizing either version of SCA 31 and showing the same opaque qualities that characterize the California Judicial Council and State Bar of California, an organism nearly extinct from its own imperviousness. Boalt School of Jurisprudence Professor Stephen Barnett recommends that death penalty cases be appealed first to the Court of Appeal, rather than directly to the Supreme Court. Others suggest adding two justice to the Supreme Court, reasoning that additional justices would enable authentic consideration of petitions for review.

I agree, however, with Mosk’s stringent observations about the logic of establishing a California Supreme Court for civil cases and a separate Supreme Court for criminal cases. Growth of the workload can’t be denied. California’s population has outstripped its judicial capacity. The shibboleth that justice delayed is justice denied is more than a truism.

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Taxpayers rightfully expect a more efficient system of resolving death penalty cases and civil suits involving significant points of law. While entrenched justices find reasons not to improve, a private justice system (arbitration) pervades California, saving neither time nor expense. Special judicial interests must be overcome and taxpayers must be afforded the justice system for which they pay hundreds of million of dollars annually. Rapidity and thoroughness of Supreme Court action on petitions for review must be enhanced.