Last week, we analyzed the conventional wisdom that the California Supreme Court doesn’t review unanimous decisions from the Court of Appeal. This week, we review a related question. The conventional wisdom is that the Court doesn’t review unpublished decisions – but is it true?

We report the data for civil cases in Table 86 below, divided between non-unanimous and unanimous decisions. We see that in fact, it is not at all uncommon for the Court to review unpublished decisions. Between 2000 and 2013, unpublished Court of Appeal decisions never amounted to less than 11% of the Court’s docket, and they were generally significantly more. In 2000, 44% of the Court’s non-unanimous decisions arose from unpublished decisions below to 29.17% of the unanimous decisions. The share fell significantly among non-unanimous decisions the next year to 23.81%, but it jumped eight points on the unanimous side – 37.04%. In 2002, only 20.69% of unanimously decided cases arose from unpublished decisions, but the fraction on non-unanimous cases was back up again, to 42.11%. By 2004, fully 52.63% of the non-unanimous civil decisions arose from unpublished Court of Appeal decisions, and just short of a quarter of the unanimous decisions (24.24%) did.

The numbers dipped somewhat between 2006 and 2009, with 14.29%, 27.27%, 11.11% and 28.57% of the non-unanimous decisions arising from unpubs, and 27.5%, 18.18%, 12.9% and 18.92% of the unanimous decisions being unpublished below. But in 2010, exactly one-third of the Court’s non-unanimous civil decisions were unpublished below, and 27.27% of the Court’s unanimous decisions were. The numbers were almost identical in 2011, and the share of non-unanimous decisions spiked in 2013 – 57.14% of the Court’s non-unanimous civil decisions arose from unpublished cases, while 24% of the unanimous ones did. The following year, the unpublished share of non-unanimous cases dropped to zero (the share of unanimous decisions remained flat at 25%). Last year, unpublished decisions rebounded to about one-quarter of the Court’s non-unanimous decisions. Among the unanimous decisions, 10.71% were unpublished below.

Click here for table.

Join us back here tomorrow as we review the share of unpublished Court of Appeal decisions on the California Supreme Court’s criminal docket.