There have been four straight grants of review at the California Supreme Court’s six conferences so far this year out of the hundreds of petitions filed. That’s hardly surprising, because the court’s grant rate hovers around 1%.

But it’s a reminder of the high court’s low productivity. 

The justices deal with the state’s most complex policy issues. They decide questions of life and death. Smart and thoughtful, they resolve conflicts among lower appellate courts. 

Benjamin G. Shatz, who leads the West Coast appellate practice at Duane Morris LLP, said the high court’s reduced output is well known, and so is that of its federal counterpart. “The appellate bar has definitely noticed—with consternation—a decrease in cases being taken by the high courts, both the U.S. Supreme Court and the California Supreme Court.” 

Shatz added, “Courts with discretionary review power seem to have narrowed the opening for review without explanation. It seems unlikely that there are fewer splits in the intermediate appellate courts or that major cases are somehow less important now than they were in the distant and not-so-distant past. So, this seems to boil down to an inexplicable extreme pickiness in selecting cases for review.”

When lower courts’ opposing opinions aren’t reconciled, confusion results, Shatz observed. “Allowing splits to remain unresolved is frustrating, and by definition the development of the law has slowed.”

Those contradictory views long have lingered without high court attention, Shatz said, adding, “Well, this issue has been split for over 20 years! And it was almost decided recently, but then the chance was lost when the case before the Supreme Court settled.”  

Even though it settled, the justices had the authority to decide the issue anyway, Shatz noted. 

He gave another example, observing that California appellate courts are currently split on whether a good faith settlement determination under Code of Civil Procedure Section 877.6 can be appealed directly or if a writ petition is the exclusive remedy. 

Might the Supreme Court start hearing more cases? “Practitioners continue to wait and hope that perhaps an uptick returns and stabilizes,” Shatz said.

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