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
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
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
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
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
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
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
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
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
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
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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