Extraordinary Relief

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Contents

Overview

The vast majority of the time, the legislative branch passes generally applicable laws, the executive branch signs the laws passed by the legislature, trial courts interpret cases arising under those laws, and unhappy litigants are permitted one appeal before a higher court which examines the trial court proceedings to see if mistakes of law or gross mistakes in fact finding were present.

This entry summaries what happens in the very small percentage of cases where this doesn't happen, and instead some form of "extraordinary relief" intervenes.

Types of Extraordinary Relief

Every branch of government has some form of extraordinary relief available to it.

Executive Branch Extraordinary Relief (Thousands Per Year)

Presidents and Governors can pardon crimes, or commute criminal sentences.

The President typically pardons dozens to hundreds of people per year. State Governors pardon about 2,000 people per year.

Judical Branch Extraordinary Relief

Decisions of initial appeals by appellate courts can be appealled in the state court system to a state supeme court and the U.S. Supreme Court. Decisions of initial appeals by apellate courts can be appealled in the federal court system to "en banc" review of the initial appellate panel's decision and by the U.S. Supreme Court. Federal courts can also provide Habeas Corpus review of state criminal convictions.

State Supreme Courts (Thousands Per Year)

The availability of relief in a state supreme court varies widely from state to state. In Delaware, the District of Columbia,Maine, Montana, Nevada, New Hampshire, North Dakota, Rhode Island, South Dakota, Vermont, West Virginia and Wyoming, every case appealled goes to the state supreme court and the relief is not extraordinary at all.

In many larger states, state supreme court relief is quite rare. In California and Texas, less than 1% of cases appealled to the intermediate court of appeals are further reviewed by the State Supreme Court. In Illinois, it is close to 10%, and in Colorado, the figure is about 4%. Hawaii's Supreme Court handles more cases than its intermediate appellate court.

Habeas Corpus Review (Ca. 200 successful cases per year)

In federal court at the trial level, about 63% of Habeas Corpus petitions, which review state criminal convictions for constitutional violations, fail on proceedural grounds or because no legal reason for release is stated (57% of the total, i.e. 90% of petitions dismissed, are dismissed because not all state remedies have been exhausted), about 35% are denied on the merits, and about 2% are either granted or remanded to a state court for further consideration. At the trial level a typical federal habeas corpus petition which is dismissed is ruled on in 9 months, while a typical habeus corpus petition considered on the merits is ruled on in 16 months. A large percentage of habeas corpus petitons (probably in excess of 40%) are appealled. At the Court of Appeals level about two-thirds of prisoner petitions are denied on procedural grounds and about 15% of those cases considered on the merits produce some relief (i.e. relief is provided at the appellate level in somewhat less than 2% of all cases originally filed in the trial court). While no figures are available, it is safe to guess that at the very least, almost all of the procedural dismissals involved unrepresented prisoners, implying a much higher dismissal rate for "pro se" parties than for parties represented by attorneys.

En Banc Review (94 cases per year)

Appealling parties may ask the entire Court of Appeals in a circuit to second guess the decision of an individual panel (or in the 9th Circuit, a much larger panel of the court rather than the entire court). This is called an "en banc" review of a decision. Thus, a case can be appealled from a trial court to a three judge panel of the Court of Appeals, and then receive "en banc" review, and then go to the U.S. Supreme Court. En banc review, like U.S. Supreme Court review of a Court of Appeals decision, is discretionary and rarely granted. Typically, one would see en banc review either in a case of great political moment (such as the Newdow, Pledge of Allegiance case in the 9th circuit), when a very conservative panel makes a decision in a very liberal circuit (or visa versa), when there is a persausive dissenting opinion in the case, or when there is a conflict between two panels dealing with the same issue at about the same time on a single circuit. In 2002 in the 9th Circuit, for example, 801 published opinions were issued out of the thousands of cases that came before the court, of which about 40 were considered for en banc review, and 18 received en banc review (which in the 9th Circuit is actually a large panel of the court rather than the entire court). This was just 2% of cases heard on the merits. En banc review is less frequent in absolute numbers, since the overall caseload is smaller, in other circuits. In 1999, a fairly typical year, only 94 cases in the entire federal system receive en banc review, which makes this level of review similar in frequency to, if not less common than, U.S. Supreme Court review. The vast majority of Court of Appeals cases (probably more than 90% nationwide) are never even considered for en banc review. Less than one case in a thousand filed in a U.S. Court of Appeals is reversed in en banc review or in review by the U.S. Supreme Court.

U.S. Supreme Court Review (150 cases per year)

Because the Supreme Court — except in rare instances — does not have to take cases, the majority of federal cases which are appealled are decided in the Court of Appeals. For example, in 2002, the U.S. Courts of Appeal decided 27,758 cases on the merits, while the U.S. Supreme Court decided only 150 cases on the merits, only a little more than two-thirds of which were from U.S. Courts of Appeal (thus more than 99.5% of U.S. Court of Appeals rulings were the final word on the issues decided), despite the fact that 9,406 applications to have cases heard (from both U.S. Courts of Appeal and state courts, with a little more than two-thirds of which coming from U.S. Courts of Appeal) were received. This is why it is extremely important to have good judges at this level, not just in the Supreme Court. Likewise, in a typical state in a typical year, only about one appeal from a state supreme court is decided by the U.S. Supreme Court on the merits. More than 99% of U.S. Court of Appeals and State Supreme Court cases are not reviewed by the U.S. Supreme Court on the merits.

Legislative Branch Extraordinary Relief

The legislative branch can pass "private bills" that grant a particular form of relief to a particular person.

Congressional Private Bills (Under 100 cases per year)

The Terri Schiavo case is the most famous example of this, but Congress passes a couple of dozen private bills each year, many of which deal with immigrantion cases.

State Private Bills

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