California Appellate Courts and Time from Briefing to Decision — When will Oral Argument take place? When will the Court of Appeal file its Opinion?
These are questions clients ask their attorneys, and the attorneys ask me. These questions are not so easy to answer. It depends on the Court, the court’s case load and the complexity of the issues in the appeal in question.
It’s a process that takes time. After the appeal is fully briefed, the court will issue a Notice regarding oral argument. The First Appellate District’s Notice indicates that if the Notice is not returned within 10 days by either party stating argument is requested, the oral argument will be deemed waived. The First Appellate District Court of Appeal is the only court to include the Notice on the court’s website. “When will this Notice be issued?” is the better question.
There may be significant delay to the Court issuing the Notice regarding oral argument. California Judges must issue an opinion or decision within 90 days from the date the matter is submitted. Under Government Code Section 68210, “No Judge of a court of record shall receive his salary unless he shall make and subscribe before an officer entitled to administer oaths, an affidavit stating that no cause before him remains pending and undetermined for 90 days after it has been submitted for decision.” (Also, Article 6, Section 19, Calif. State Constitution.)
There is a tendency to delay the issuance of an oral argument Notice to allow for the Justices and staff attorneys to review, research and draft tentative memoranda and tentative decisions. I have been informed by counsel that the setting of an oral argument in the Third Appellate District can be as long as 18 months from conclusion of briefing.
If no oral argument occurs, the appeal is deemed submitted on the day the last brief is filed, including any supplemental briefing that may have been ordered by the court. A decision on the appeal without oral argument would be due within 90 days of the date submitted. The delay in issuing the oral argument notice causes the date the appeal is “submitted” to be delayed.
The law review article Opinions First—Argument Afterwards Daniel J. Bussel 61 UCLA L. Rev. 1194, 1115 (2014) describes the internal Operating Procedure of the California Supreme Court as allowing the “the court to take as long as it wants to decide a case by manipulating the date of argument rather than the date of submission.”
Let’s focus on the California Supreme Court’s Internal Practices. The Courts of Appeal seem to be modeling their practices after the high court’s.
California Supreme Court. In cases that are accepted for review on the merits, time is needed to proceed with the court’s review and decision-making process. The court’s website says that the time it takes to set a matter for oral argument “typically occurs several months to a year after all briefs have been filed.” (FAQ. When is oral argument scheduled?). Although it could take considerably longer if the case has complex issues.
When briefing is complete, the Chief Justice assigns one Justice to prepare the calendar memorandum. This is circulated to all Justices, and the other Justices respond with their preliminary response memoranda which indicate whether they tentatively concur or dissent, and they may raise additional issues or points of concern. These are discussed at weekly pre-calendar meetings. This process is continued until a majority of the Justices concur in the new or revised calendar memorandum. Then the Chief Justice assigns the matter to oral argument.
Time is needed to proceed the court’s review and decision-making process. After oral argument, the matter is further discussed at the court’s private conference, and a tentative vote is taken. When a majority of the Justices agree with the recommendations of the Justice that prepared the pre-calendar memorandum, the Justice that wrote the memorandum prepares a proposed majority opinion. This is circulated again, and other Justices may write concurring or dissenting opinions, or the proposed majority opinion may be modified to address consenting or dissenting opinion points.
Obviously the time to a final decision from close of briefing will vary by appellate district and the volume of cases pending. For information and the practice of the court your case is pending in, check the Internal Operation Procedures on the Practices and Procedures page of the district court website.
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