This week, we’re taking a close look at the reversal rates of the various Districts and Divisions of the Court of Appeal in civil cases. As always, we’re defining “criminal” cases in the data as criminal prosecutions, quasi-criminal actions (habeas corpus), juvenile and mental health cases that arise out of alleged criminal activity, and attorney disciplinary cases. Civil cases are everything else.
Before we begin, it’s important to note that notwithstanding the fact that intermediate appellate reversal rates are probably the analytic data point most widely quoted in the media, it’s also subject to misconstruction when – as often happens – someone suggests that a high reversal rate necessarily reflects badly on an appellate court. For every one of the courts we’re about to review, anywhere from ninety to ninety-five percent of the petitions for review from their cases were denied by the Supreme Court. Cases which the Supreme Court takes aren’t a random grouping; quite the contrary. So it’s equally valid to say that of all a lower court’s cases that someone tries to take to the Supreme Court, the “true” reversal rate is nearly always in the single digits.
But first, let’s look at a composite number. Between 1990 and the end of 2017, the Supreme Court decided 1,223 civil cases. In Table 646 below, we report the overall reversal rate for every District and, in San Francisco, Los Angeles and San Diego, every Division. The District reversed most often in civil cases was, by a narrow margin, Division Four of the First – 72%. One other District was over 70% (the Sixth), nine courts were in the sixties, five in the fifties, and two were in the forties – Division One of the Fourth at 49.43%, and Division Three of the First at 48.72%.
Now we turn to the year-by-year numbers for the individual courts. The problem with this exercise the way it’s usually done is one gets large swings in the data which in fact are random (the nature of the cases that happened to come ripe for decision in a particular year) or a function of a low caseload from that court in that year (one year the Supreme Court reverses three of four, the next two of four – a minimal difference but a 25% swing if you focus on one year numbers. So, we’re using three year floating averages. Thus, the reversal rate shown in the Table below labelled “1992” is for all the cases from Division One of the First District decided in 1990, 1991 and 1992. For the next year, we drop 1990 and add the data for 1993, and so on.
Between 1990 and 2017, 53.49% of the civil cases from Division One of the First District were reversed in whole or in part. For most of the 1990s, the yearly rate was right around the long-term average, leaving aside a one-year spike in 1993. Beginning in 1999, far fewer cases were being reversed – 25% in 1999, 20% in 2000 and 25% in 2001. After several more years around average, the rate abruptly increased beginning in 2007 to 66.67%, 100% in 2008 and 80% in 2009. In 2009, 2013 and 2014, the Court heard only one case from Division One, and all three were affirmed (the high reversal rate for 2009 comes from 2008 and 2007 cases in the three-year average). The Court heard no cases from Division One in 2011 or 2012. The Court decided one case per year from Division One in 2015, 2016 and 2017, reversing in whole or in part in each.
Division Two of the First District was right in the middle of the pack, with 60.78% of its civil decisions reversed in whole or in part. In about half of the 90s, the court’s three-year average was relatively close to that number, only diverging significantly in 1992 (77.78%) and 1995-96 (28.57% and 37.5%, respectively). The rate was still at trend in 2000 (63.64%) and 2001 (66.67%), before having three straight good years in 2002-2004.
From 2006 to 2009, Division Two’s civil reversal rate was unusually high – 80% in 2006 and 100% for each year 2007-2009. The rate dropped gradually after that, to 75% in 2010, 60% in 2011 and 50% in 2012. Since 2010, the Court has decided only four civil cases from Division Two – one each in 2012, 2013, 2016 and 2017 – and affirmed them all.
As we mentioned above, only 48.72% of the 39 civil cases the Court has heard from Division Three of the First District since 1990 have been reversed in whole or in part. The yearly average was almost exactly that from 1990 to 1995 before dipping each of the next three years – 37.5% in 1996, 28.57% in 1997, 16.67% in 1998. After a three-year return to trend, the rate dipped again for two years at 25% before reaching 100% in 2005 and 66.67% in 2006. The Court heard only one civil case from Division Three in 2012-2014. Beginning in 2015, the Court has heard three civil cases from Division Three, reversing in whole or in part in all three.
That brings us to Division Four of the First District, which had an overall civil reversal rate of 72%. The court had a tough four year stretch in the early 90s, with a three-year rate of 100% in 1993, 1994 and 1995, 90.91% in 1996 and 90% in 1997. After dropping well below trend for three years, bottoming out at 33.33% in 2000, the reversal rate returned to 100% in 2001 and 2001. After a few years around the 72% trend rate, Division Four had another three good years, with a rate of 33.33% in 2009, 50% in 2010 and 57.14% in 2011. But since 2013, the Court has decided five civil cases from Division Four, reversing in whole or in part in all five.
The twenty-eight year reversal rate in civil cases for Division Five of the First District is 60.98%. For most of the years between 1990 and 1998, the court was well above that – 100% in 1992, 71.43% in 1995, 85.71% in 1996 and 1997 and 75% in 1998. After a three year dip from 1999 to 2001, when the Supreme Court heard only three civil cases from Division Five, the reversal rate peaked again at 80% in 2003 and 85.71% in 2004. Aside from a final dip from 2006-2008 (36.36%, 30% and 42.86%, respectively) and brief peaks in 2013 and 2017, when the court’s reversal rate reached 100%, the yearly rates have been fairly close to the long-term trend every year.
We turn next to southern California’s Second District. For the entire period, the Court has decided 73 cases arising from Division One of the Second, and reversed in whole or in part in 68.49%. After starting out at 80% reversal for the years 1990-1992, the court was generally close to its long-term average from 1993 to 2002. The rate jumped to 87.5% in 2003 and was 80% in 2007, but dropped well below average from 2008 to 2010 (40%, 33.33%, 33.33%, respectively). The court’s reversal rate jumped again above average in 2016, when it was 80%, and 2017, when it rose slightly to 81.82%.
Between 1990 and 2017, the Court decided 41 civil cases from Division Two of the Second District, reversing in whole or in part in 56.09% of them. The Court’s reversal rate was quite high for the first half of the nineties – 100% in 1992 and 80% in 1993 and 1994 – before dropping to 33.33% in 1995. The rate was remarkably stable between 1996 and 2006, rising well beyond the trend number only in 2000 (75%). The Supreme Court has heard only nine civil cases from Division Two since 2009, and none at all in 2009, 2011, 2012 and 2015.
The Supreme Court decided eighty-eight civil cases from Division Three of the Second District (more than double the number from Division Two), affirming in 56.82%. The rate had a two-year spike in 1993 and 1994 (77.7% and 87.5%, respectively) before dropping to 25% in 1996 and 33.33% in 1997. After several years around the long-term trend, the rate dropped to 46.15% in 2005 and 36.36% in 2006. There was another increase a few years later: the rate was 75% in 2008, 81.82% in 2009, 70% in 2011 and 71.43% in 2013, before a two-year correction to 42.86% in 2014 and 2015. Last year, 54.55% of the Division Three civil cases decided by the Court were reversed in whole or in part.
The Court decided sixty-two civil cases from Division Four of the Second District between 1990 and 2017, reversing in whole or in part in 67.74% of them. The court’s reversal rate was well below that for the first half of the nineties – fifty percent in 1992 and 1993, zero in 1994, forty percent in 1995 and fifty percent in 1996. By 2002, the rate had risen to 80%, and hit 88.89% the following year. The rate was high between 2010 and 2013 – 100% in 2010 and 2011, 83.33% in 2012 and 85.71% in 2013. Since that time, Division Four’s reversal rate has been fairly close to its twenty-eight year trend each year.
Join us next time as we address the reversal rate in the rest of the state.