Earlier this week on the Illinois Supreme Court Review, we pointed out that one would expect that any question certified to the state Supreme Court would be a particularly difficult one, with a lot to be said on both sides. So, we asked – do certified question appeals tend to be decided at the Supreme Court by more closely divided courts? Far fewer cases get certified from the Seventh Circuit to the Illinois Supreme Court than are certified from the Ninth Circuit to the California Supreme Court, but the answer in Illinois was yes – there was some evidence that certified question appeals tended to be decided by more closely divided courts.
So what does the California data show?
We report the data in Table 263 below. Surprisingly, it suggests that the Court does not find certified question appeals any more contentious than the rest of its civil caseload. Twenty-seven of its certified question appeals – fully 71.1% of the whole – have been decided unanimously. Another 10.5% have been decided with only one dissenter. Only one in five of the Court’s certified question appeals – 7 of 38 – have been decided by anything one could fairly call a closely divided court: two cases had two dissenters, and five were decided 4-3.
So do the certified question appeals attract more amicus interest than the rest of the Court’s civil docket? One might expect that cases sufficiently important to get certified over to the state Supreme Court would attract an unusually high level of amicus involvement.
And one would be wrong. Certified question appeals over the past twenty-three years have, if anything, attracted less amicus interest than the rest of the Court’s civil docket.
We reviewed the numbers for the civil docket as a whole here and here. From about 1994 to roughly 2002, appellants and respondents fairly consistently averaged between one and two amici apiece. But in the years since, the numbers have been drifting up. Since about 2010, amicus briefs have generally averaged between two and three per case, while briefs supporting respondents have averaged between 1.5 and 2. But certified question appeals have attracked only an average of 1.26 briefs for plaintiffs, and 1.74 for defendants.
Lastly, we looked at the issue of lag time – how long, after the Supreme Court agrees to accept a certified case, does the Court take to schedule oral argument and make a decision? The data demonstrates that once the Court agrees to accept a certified case, the case is treated similarly to the rest of the Court’s civil docket. For the entire period, an average of 505.235 days passed between acceptance and argument – roughly 16 months and 2-3 weeks. But the data is quite variable. The standard deviation in the lag time number is very big: 157.796. This means that 68.27% of the past certified question appeals were argued between 347.4 and 663 days after the grant order was filed.
Join us back here next Thursday as we turn our attention to a new topic in our ongoing investigation.