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INTERNAL OPERATING PRACTICES AND PROCEDURES OF
THE CALIFORNIA SUPREME COURT (Revised 1995)
The following internal operating practices and procedures are observed by the California Supreme Court in the performance of its duties.
[Note: Various provisions of the California Constitution, Codes, and Rules of Court, as well as numerous provisions of the decisional law, have a bearing on how the court functions. The court's internal operating practices and procedures should be considered in that context. These practices and procedures may be amended from time to time, as needed, to facilitate the court's ability to discharge its duties.]
I. ACTING CHIEF JUSTICE
An Acting Chief Justice performs the functions of the Chief Justice when the Chief Justice is absent or unable to participate in a matter. The Chief Justice selects on a rotation basis an associate justice to serve as Acting Chief Justice.
II. TRANSFER OF CASES
A. All transfers to the Supreme Court of a cause in a Court of Appeal pursuant to article VI, section 12 of the California Constitution are accomplished by order of the Chief Justice made on a vote of four justices assenting thereto.
B. Unless otherwise ordered by the Chief Justice, all applications for writs of mandate and/or prohibition that have not previously been filed with the proper Court of Appeal are transferred to such court.
C. The Supreme Court exercises exclusive jurisdiction over all matters relating to review of Public Utility Commission cases (Cal. Rules of Court, rule 58) and State Bar proceedings (id., rule 952 et seq.).
A. Unless otherwise directed by the Chief Justice, regular conferences are held each Wednesday, excluding the Wednesday of regular calendar sessions and the first Wednesday of July and August.
B. Special conferences may be called by the Chief Justice whenever deemed necessary or desirable.
C. Four justices constitute a quorum for any regular or special conference.
D. A judge assigned by the Chief Justice to assist the court, or to act in the place of a regular member of the court who is disqualified or otherwise unable to act, may be counted to obtain a quorum for a conference. A regular member of the court, present at a conference, who is not participating in a particular matter is not counted in determining a quorum for that matter.
E. A justice who has ascertained that he or she will not be present at a conference or will not be participating in a particular matter will notify the Chief Justice or the Calendar Coordinator, as specified by sections XI(C) and XII(A). The absent justice may leave his or her votes on any given conference matter, and may be counted to constitute a quorum for each such conference matter.
IV. CONFERENCE MEMORANDA
A. Unless otherwise directed by the Chief Justice, a conference memorandum is prepared for each petition requiring conference consideration or action.
B. Upon the filing of a petition, motion, or application, the Calendar Coordinator, under the direction of the Chief Justice, assigns it a conference date and refers it to one of the central staffs or a member of the court for preparation of a conference memorandum as follows:
1. Petitions in or derived from criminal cases, to the criminal central staff.
2. Applications for writs of habeas corpus arising out of criminal proceedings, to the criminal central staff.
3. Petitions for review of State Bar proceedings pursuant to rule 952 et seq. of the California Rules of Court and applications to the Supreme Court pursuant to article V, section 8 of the California Constitution for a recommendation regarding the granting of a pardon or commutation to a person twice convicted of a felony, to the criminal central staff.
4. Petitions in civil cases, to the civil central staff.
5. All other petitions and applications, including overflow petitions that cannot be handled by the existing central staffs, to the six associate justices and the Chief Justice in rotation so that, at the end of a given period of time, each justice will have been assigned an equal number of petitions. Petitions for rehearing after decision in the Supreme Court are referred to a justice, other than the author, who concurred in the majority opinion.
C. The recommendation set forth in a conference memorandum will generally be one of the following: (1) "Grant," (2) "Grant and Hold," (3) "Grant and Transfer," (4) "Deny," (5) "Submitted," (6) "Denial Submitted," and (7) "Deny and Depublish." The designation "submitted" is used when the author believes the case warrants special discussion. The designation "denial submitted" is used when the author believes the petition should be denied, but nevertheless believes some ground exists that could arguably justify a grant, or an issue is raised that otherwise warrants discussion by the court.
D. Any justice, before or after a vote is taken, may request that a case be put over to a subsequent conference within the jurisdictional time limit for further study, preparation of a supplemental memorandum, or both. The time within which action thereon must be taken will be extended pursuant to rules 24 and 28 of the California Rules of Court if necessary.
E. In any case in which the petition, application, or motion is denied, a justice may request recordation in the court minutes of his or her vote to grant.
F. When a justice is unavailable or disqualified to participate in a vote on a petition for review or other matter, the Chief Justice may assign a pro tempore justice to participate in the vote on the petition or matter. The assigned justice is furnished all pertinent petitions, motions, applications, answers, memoranda, and other material.
G. Conference memoranda are delivered by the author to the Calendar Coordinator for reproduction and distribution to the justices no later than the Tuesday of the week before the conference.
V. CALENDAR SESSIONS
Unless otherwise ordered by the court, regular sessions of the court are held each year, on a day or days as determined by the Chief Justice, as follows: at Los Angeles during the months of January, April, June, and October; at San Francisco during the months of February, May, September, and December; and at Sacramento during the months of March and November. No regular session is held during July and August.
Unless otherwise ordered by the Chief Justice, the court convenes at 9:00 a.m. Special sessions are held by order of the Chief Justice or by order on a vote of four justices assenting thereto.
VI. CALENDARS AND CALENDAR MEMORANDA
A. The purpose of the calendar memorandum is to present the facts and legal issues, and to propose a resolution of the legal issues.
B. At the request of the justice preparing a calendar memorandum, or on direction of the Chief Justice, or on the affirmative vote of a majority of the court, the Clerk's Office will request counsel for the parties to be prepared to argue and to submit additional briefs on any points that are deemed omitted or inadequately covered by the briefs or in which the court is particularly interested.
C. In assigning cases for the preparation of calendar memoranda, the Chief Justice takes into account the following considerations, but may depart from these considerations for the purpose of equalizing the workload of the justices or expediting the work of the court:
1. The case is assigned to one of the justices who voted for review. If a case involves substantially the same issues as one already assigned for preparation of a calendar memorandum, it may be assigned to the justice who has the similar case. Preference in case assignments may be given to a justice who authored the conference memorandum or supplemental conference memorandum on which the petition was granted, unless other factors, such as equalization of workload, suggest a different assignment.
2. Granted petitions in other matters and State Bar proceedings originally referred to the central staffs are generally assigned to the justices in such a manner as to equalize each justice's allotment of cases.
3. Appeals in cases in which the death penalty has been imposed are assigned in rotation as they are filed.
4. When a rehearing has been granted and a supplemental calendar memorandum is needed, the matter will ordinarily be assigned to the justice who prepared the prior opinion if it appears that he or she can present the views of the majority. Otherwise, the case will be assigned to a justice who is able to do so.
D. The court's general procedures for circulation of calendar memoranda, etc., are as follows:
1. The justice to whom a case is assigned prepares and circulates a calendar memorandum within a prescribed time after the filing of the last brief. When the calendar memorandum circulates, the Calendar Coordinator distributes copies of the briefs to each justice. The record remains with the Calendar Coordinator, to be borrowed as needed by a justice or his or her staff.
2. Within a prescribed time after the calendar memorandum circulates, each justice states his or her preliminary response to the calendar memorandum (i.e., that he or she concurs, concurs with reservations, is doubtful, or does not concur). Each justice also indicates whether he or she intends to write a separate concurring or dissenting calendar memorandum in the case. If it appears from the preliminary responses that all the justices concur in the original calendar memorandum, the Chief Justice places the case on a pre-argument conference ( VI(D)4, post). If it appears from the preliminary responses that a majority of the justices will probably not concur in the original calendar memorandum or a modified version of that memorandum, the Chief Justice places the matter on a conference for discussion or reassigns the case.
3. Each justice who wishes to write a concurring or dissenting calendar memorandum does so and circulates that memorandum within a prescribed time after the original calendar memorandum circulates. Soon after any concurring or dissenting calendar memorandum circulates, each justice either confirms his or her agreement with the original calendar memorandum or indicates his or her agreement with the concurring or dissenting calendar memorandum. If the original calendar memorandum thereby loses its tentative majority, the Chief Justice places the matter on a conference for discussion or reassigns the case.
4. The Chief Justice convenes a pre-argument conference at least once each month. The purpose of the conference is to identify those cases that appear ready for oral argument. The Chief Justice constructs the calendars from those cases.
The Chief Justice places on the agenda of the conference any case in which all concurring or dissenting calendar memoranda have circulated and the "majority" calendar memorandum has been approved by at least four justices or is likely to be approved by four justices at the conference. The Chief Justice also includes on the agenda any case in which discussion could facilitate resolution of the issues.
A. A cause is submitted when the court has heard oral argument or has approved a waiver of argument and the time has passed for filing all briefs and papers, including any supplementary brief permitted by the court.
B. Submission may be vacated only by an order of the Chief Justice stating in detail the reasons therefor. The order shall provide for prompt resubmission of the cause.
VIII. ASSIGNMENTS FOR PREPARATION OF OPINIONS
A. After argument the Chief Justice convenes a conference to determine whether the calendar memorandum continues to represent the views of a majority of the justices. In the light of that discussion, the Chief Justice assigns the case for opinion.
B. The Chief Justice assigns the cases for preparation of opinions in the following manner:
1. If a majority of the justices agree with the disposition suggested in the calendar memorandum, ordinarily the case is assigned to the author of that memorandum.
2. If a majority of the justices disagree with the disposition reached in the memorandum, the case is reassigned to one of the majority.
3. When a case is argued on rehearing, it ordinarily remains with the justice who prepared the prior opinion or the supplemental calendar memorandum if it appears that he or she can express the majority view. If he or she does not agree with the majority view, the case is reassigned to a justice who is a member of the majority.
4. In making assignments pursuant to these guidelines, the Chief Justice takes several considerations into account, including the following: (a) the fair distribution of work among the members of the court; (b) the likelihood that a justice can express the view of the majority of the court in a particular case; (c) the amount of work he or she has done on that case or on the issues involved; and (d) the status of the unfiled cases theretofore assigned to him or her.
C. Every reasonable effort is made by the justices to agree on the substance of opinions, and whenever possible, dissents or special concurrences on minor matters are avoided. When a justice discovers that he or she objects to something in a proposed opinion, he or she will call it to the author's attention. In addition, the objecting justice may prepare and circulate a memorandum setting forth his or her concerns and suggestions for the purpose of giving the author an opportunity to conform to any proposed changes and to remove or meet the objections raised.
D. Unless otherwise ordered by the Chief Justice, all opinions in State Bar and Commission on Judicial Performance cases and all memorandum opinions are issued "By the Court." All other opinions identify the author and the concurring justices unless the author desires to have the opinion appear "By the Court" and a majority of the court agree.
E. The rules of the California Style Manual are consulted in the preparation of opinions as well as conference and calendar memoranda.
IX. CIRCULATION OF OPINIONS
Within a prescribed time after submission, the justice to whom the case is assigned circulates the proposed majority opinion. Within a prescribed time after the proposed majority opinion circulates, all concurring or dissenting opinions circulate. If the author of the proposed majority opinion wishes to respond by change or by memorandum to any concurring or dissenting opinion, he or she does so promptly after that opinion circulates. The author of the concurring or dissenting opinion thereafter has a prescribed time in which to respond.
All opinions are cite-checked and proofread before circulating. Only copies of an opinion circulate; the original remains in the Calendar Coordination Office, where any justice may sign it.
X. FILING OF OPINIONS
Opinion(s) are completed in time for reproduction and filing on a normal opinion-filing day. Unless good cause to vacate submission appears, the opinion(s) are filed on or before the 90th day after submission.
XI. ABSENCE OF JUSTICES
A. If an opinion bears the signatures of four justices, it may be filed as provided above in section X, even though one or more of the signers are absent from the state and regardless of whether the absentee justice is the author of the opinion.
B. When a justice votes to issue a writ or order to show cause, or to grant review or rehearing, and then leaves the state prior to the making of the order, the case may be assigned to him or her if, under these procedures, it would normally be so assigned if he or she were present.
C. As soon as a justice knows that he or she will not be attending a conference of the court, he or she will notify the Chief Justice. Any justice may leave his or her votes on any given conference matter.
XII. DISQUALIFICATION OF JUSTICES
A. As soon as a justice discovers that he or she is disqualified in any case or, although not technically disqualified, deems it advisable not to participate, he or she will notify the Calendar Coordinator.
B. When it is known after a case is granted but before argument that a justice for any reason is unable to participate in a matter, the Chief Justice will assign on a rotation basis a judge to assist the court in place of the nonparticipating justice.
C. If an assigned justice has participated in the decision of a case before this court, that justice will also participate in any further proceedings--including requests for modification, petitions for rehearing, and rehearings--until such time as the decision has become final. This procedure is to be followed unless the original assignment was necessitated by the absence of a regular justice of this court, in which event a regular justice, if able to do so, will participate in lieu of the assigned justice in the consideration of any petition for rehearing and, if rehearing is granted, in any subsequent proceeding.
XIII. APPLICATIONS FOR RECOMMENDATIONS FOR EXECUTIVE CLEMENCY, HABEAS CORPUS, AND STAYS
A. An application for a recommendation for executive clemency is treated as a court proceeding. Such applications are filed by the Clerk's Office and given a file number. A memorandum is then circulated among the justices and a notation made by each on an accompanying voting sheet reflecting his or her recommendation.
Such applications will be denied unless four or more justices vote to recommend that clemency be granted. The Chief Justice will inform the Governor by letter of the court's recommendation. Pursuant to the provisions of Penal Code section 4852, the Clerk will transmit the record to the office of the Governor, should the court's recommendation be favorable to the applicant. Otherwise, the documents will remain in the files of the court.
B. When a defendant in a criminal case files a petition for review after denial without opinion by the Court of Appeal of a petition for prohibition or mandate attacking a Penal Code section 995 or section 1538.5 ruling, the matter will be placed on the agenda of a regular conference and not accelerated. Absent extraordinary circumstances, no order staying the trial will issue. If the case goes to trial and the matter becomes moot before the regular conference, the memorandum need only so state, and the petition may then be denied as moot without the necessity of considering its merits.
When the Court of Appeal has denied such a writ petition with opinion, a request to stay the trial pending action by the Supreme Court on the petition for review will be granted when necessary to prevent the matter from becoming moot.
C. When a misdemeanor conviction has become final on appeal or a final contempt order has been filed by a trial court and the defendant or contemnor files a petition for review following denial of a timely habeas corpus or certiorari petition by a Court of Appeal, or files a timely original petition, a stay of execution of the judgment or order will issue pending determination of the petition. The Chief Justice may condition the stay on the filing of a bond or on the continuation of an appeal bond, if any, if he or she deems it appropriate to do so. If the petition appears to lack merit, however, expedited consideration will be given to deny the petition in preference to releasing an incarcerated petitioner.
D. Pending disposition of a petition for writ of habeas corpus to review an order permitting extradition, the Chief Justice may stay extradition on behalf of the court. If the petition appears to lack merit, however, expedited consideration will be given to deny the petition in preference to staying the proceedings.
E. In cases not covered by subdivisions (B) and (C) of this section, and when not precluded by subdivision (G) of this section, the Chief Justice may, in his or her discretion, grant applications for stays of judicial proceedings or orders pending regular conference consideration of the matters involved.
F. Except as provided in subdivisions (B) through (E) of this section and except in emergencies, petitions for habeas corpus, applications for stays of judicial proceedings or orders, and applications for stays of execution are to be resolved at the weekly case conference.
G. Stays governed by special provisions of statutes or rules of court will be issued only in compliance with such provisions. (See, e.g., Pub. Util. Code, 1761-1766; Cal. Rules of Court, rule 49.)
H. Applications to stay actions by public agencies or private parties pending consideration of petitions for writs of mandate (i.e., Emeryville-type stays [see People v. Emeryville (1968) 69 Cal.2d 533]) are to be resolved at the weekly case conference.
XIV. APPOINTMENT OF ATTORNEYS IN CRIMINAL CASES
A. In criminal matters, upon a verified or certified statement of indigency, the court, acting through the Clerk's Office, will appoint an attorney for a party in the following instances:
1. In a pending case in which the petition for review has been granted;
2. In a pending automatic appeal;
3. In an original proceeding in which an alternative writ or an order to show cause has been issued;
4. In capital cases in the following proceedings undertaken after the termination of the party's state appeal:
(a) Proceedings in this court for post-conviction review;
(b) Proceedings for appellate or other post-conviction review of state court judgments in the United States Supreme Court, subject however to the power of that court to appoint counsel therein; and
(c) Applications for executive clemency, and the conduct of sanity hearings when indicated.
B. The court's Automatic Appeals Monitor is responsible for recruiting, evaluating, and recommending the appointment of counsel on behalf of indigent appellants in capital appeals and related state habeas corpus proceedings.
C. Counsel in automatic appeals are compensated by one of two alternative methods: Under the "time and costs" method, counsel are compensated on an hourly basis and reimbursed for necessary expenses that were reasonably incurred. The court makes partial payments on counsel's fee claims while these claims are pending full review. Under the alternative optional "fixed fee and expenses" system, counsel are paid a fixed amount at regular stages of a case, according to a predetermined assessment of its difficulty.
D. Habeas corpus petitions in capital cases are governed by the timeliness and compensation standards set out in the "Supreme Court Policies Regarding Cases Arising From Judgments of Death." Counsel appointed in capital cases have the duty to investigate factual and legal grounds for the filing of a petition for a writ of habeas corpus, as delineated in those policies.
XV. COMMUNICATIONS FROM COUNSEL IN PENDING CASES
Whenever a matter is pending before the court, any communication to the court from counsel is to be addressed to the Clerk's Office, with copies to all counsel.
XVI. SUSPENSION OF PROCEDURES
Whenever exceptional or emergency conditions require speedy action, or whenever there is other good cause for special action regarding any matter, the operation of these procedures may be temporarily suspended by affirmative vote of four justices.
The Chief Justice may extend any applicable time limit (except that stated in section X) on written request by a justice stating good cause and the date by which he or she expects to comply.
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