When nearly 92% of all original proceedings in the California Court of Appeal are dismissed without written opinion (for fiscal year 2005-2006, the latest year for which statistics are provided in the 2007 Judicial Council report), it would be nice if the Court of Appeal would, in any given case, explain why that particular case made it past summary dismissal to review on the merits. Too frequently, a writ opinion is silent on this question.
I can’t offer empirical evidence, but my observation is that the Ninth Circuit addresses this issue explicitly much more consistently in its writ opinions. This is probably because its decisions usually evaluate the Bauman factors, as we are reminded by Douglas v. United States District Court for the Central District of California, case no. 06-75424 (July 18, 2007):
Because a writ of mandamus is an extraordinary remedy, we have developed five factors that cabin our power to grant the writ:
1. “The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires.”
2. “The petitioner will be damaged or prejudiced in a way not correctable on appeal.”
3. “The district court’s order is clearly erroneous as a matter of law.”
4. “The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules.”
5. “The district court’s order raises new and important problems, or issues of law of first impression.”
Bauman v. U.S. Dist. Court, 557 F.2d 650, 654–55 (9th Cir. 1977).
I wish the California Court of Appeal was as methodical. It would make for a much better developed body of law on when the court will exercise its discretion to review a writ petition on the merits.