If done right, your petition for review will normally have a different focus than your Court of Appeal brief had, or than your Supreme Court brief on the merits will have (if you’re skilled and lucky enough to have one of the very few petitions that are granted). Generally, the emphasis of the petition for review should be selling the Supreme Court on the importance of the issue(s) instead of trying to convince the court how the issue(s) should be resolved. You’ve cogently explained that the Court of Appeal decided your appeal incorrectly? Nice. However, that alone and $1 will probably get you only a cup of coffee, not review.
Petition for review writers can look to the Ninth Circuit for inspiration. When the federal Court of Appeals asks the Supreme Court to answer a state law question, it — like a litigant petitioning for review — needs to convince the Supreme Court that the court’s limited time will be well spent answering the question. We don’t know if the Ninth Circuit’s latest requests will be favorably received, but they did hit the right notes. Besides playing the comity card, the Court of Appeals’ sales pitch in one was that “no controlling California precedent answers any of the certified questions” and that the questions “are of extreme importance to tens of thousands of employees in California.” In the other, the Ninth Circuit said decision of the issue “could transform the terrain of California trust law.”
Erin Coe today writes on Law360.com [subscription] about what makes a good petition for review in “5 Ways To Get Your Calif. Petition For Review Granted.”
Sometimes a successful petition for review will involve a little, shall we say, puffing. Maybe the petition will overstate just a bit the uncertainty in the law and tell the Supreme Court that only its guidance can save the lower courts and the bar from hopeless chaos. Then, once review is granted, the opening brief on the merits will explain to the court that there’s obviously only one way to resolve the issue and that no rational being could possibly believe otherwise.
However, there are other times when the disconnect between the petition for review and the merits briefing is not so much puffing as it is bait-and-switch. For example, a litigant might get the court’s attention with a review-worthy issue, but then, in its brief on the merits, argue for reversing the Court of Appeal based on a different and much less important ground. People v. Mosley, decided last week, might fall into that latter category.
The Attorney General’s petition for review in Mosley asked the Supreme Court to decide one issue: because requiring a defendant to register as a sex offender can include a residency restriction, did the federal constitution mandate that a jury — instead of a judge — find the facts necessary to require registration? (The Court of Appeal had held that it did and struck the defendant’s sex offender registration requirement.) After the Supreme Court granted review, however, the Attorney General’s brief on the merits, in addition to advocating for a negative answer to the constitutional question raised in the petition for review, also argued that the court didn’t even need to answer the question — the Attorney General asserted that, as a matter of statute, the defendant in the case was not subject to the residency restriction in the first place. The statutory argument would moot the constitutional question, because the possibility of a residency restriction was the only reason the defendant could assert a right to a jury trial regarding registration.
The case ended well for the Attorney General. The Supreme Court decided the constitutional question and did so in the way the Attorney General wanted, and it declined to resolve the “threshold issue of statutory construction” (much to the annoyance of dissenting Justices Goodwin Liu and Kathryn Werdegar, who criticized the majority’s “highly unorthodox” choice to “avoid[ ] an issue of statutory interpretation in order to resolve the case on constitutional grounds”).
Would the Supreme Court have granted review in the case if the Attorney General had in the petition for review made the statutory argument, which, if correct, would moot the constitutional issue that ended up getting the case through the Supreme Court’s door? Maybe, but the chances for review would have been lower because the court might have preferred to wait for a case that better presented the constitutional issue.
