Changing the Court for a Changing California

The state Senate Public Safety Committee recently approved an amendment to the California constitution, SCA 31, that would radically alter the structure of the California Supreme Court. Introduced by state Sen. Quentin Kopp, the amendment would increase the membership of the court from 7 to 15, establish two departments and authorize the court to sit in these departments or en banc.

Although I have the greatest respect for Kopp (I-San Francisco), I voted against the amendment and believe the measure would do serious harm to the high court. Although the measure was introduced to assist the court with its growing workload, and in particular with death penalty appeals, a closer look at the cause and type of increased filings demonstrates that more than doubling the size of the court will not alleviate the problem.

Indeed, the flawed structure contemplated by Senate Constitutional Amendment 31 would only aggravate the court’s inefficiency, provide a tremendous opportunity for appellate mischief and concentrate far too much power in the hands of a chief justice. It can truly be said of SCA 31 that the cure is worse than the disease.

The backlog of death penalty cases is a significant problem, but there is no evidence that a lack of Supreme Court justices is the predominant cause of delay. Rather, the delays are the result of multiyear waits for counsel (few attorneys are willing to handle these cases), and the lengthy time it takes to certify the record. Of 484 cases pending review in December 1997, only 19 were fully briefed and awaiting hearing.

Most of the increase in the court’s caseload--63% over the last 10 years--is attributable to the court’s non-capital docket. Before creation of the courts of appeal, it may have been desirable for the court to sit in two panels and, indeed, this was permitted by the California Constitution. With the present availability of numerous appellate courts, the vast majority of appeals no longer require Supreme Court review. Indeed, if the number of published (as opposed to unpublished) decisions coming out of the Courts of Appeal is any indication, few of these new petitions justify Supreme Court intervention to secure uniformity of decision or settle important questions of law.

Neither would more judges necessarily make the court more efficient. As U.S. Supreme Court Justice Charles Evans Hughes remarked in reaction to President Franklin D. Roosevelt’s court packing plan: “There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.” In addition, any litigant who was disappointed by a Supreme Court panel’s decision would almost certainly petition for a rehearing by the entire court en banc. Rather than diminishing the amount of appellate litigation, SCA 31 would encourage a further layer of review and discourage the finality of judgments. Two panels would also promote forum shopping and, where the panels articulated different standards, multiply confusion in the lower courts.

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Perhaps the most troubling aspect of SCA 31 is the truly colossal judicial power that would be vested in the chief justice. SCA 31 provides that the chief justice “shall assign seven associate justices to each department, and that assignment may be changed by the chief justice from time to time.” SCA 31 thus would give the chief justice the unprecedented power to stack two panels of justices in any manner he or she saw fit, reshuffle the deck if not satisfied with the outcome of a case or the balance of a panel and punish justices by their removal from a panel.

This power is extraordinary, and in the constitutional scheme would rival if not eclipse the power exercised by the governor over the executive branch or the speaker and Senate president over the legislative assemblies.

Given that the sitting governor at the time SCA 31 would take effect would be appointing a majority of the new court (and its chief justice), the governor’s power would be left without adequate check.

Reform at the highest level of our courts is overdue. Today the California Supreme Court decides only 100 cases per year with opinions, a third less than it did 25 years ago. Time from grant of hearing until decision is more than a year, and sometimes several years--far slower than the U.S. Supreme Court. But any reform must be the right reform.