Legal Question in Appeals and Writs in California
Writ of Certiorari - Preservation of Error
It is understood that in civil cases constitutional challenges must be first raised at the trial court level and preserved through appeals courts and the state supreme court in order to be raised on appeal to the US Supreme Court.
Constitutional challenges were raised on appeal but not all were brought forth to the state supreme court to pare down the issues.
However, if the state supreme court denied review and the Petition for Writ or Certiorari is against the court of appeals, then should all issues raised at the court of appeals still be considered preserved?
3 Answers from Attorneys
Re: Writ of Certiorari - Preservation of Error
I have to supplement my prior answer, as the Supreme Court I referred to was the California court. In sum, because the issues which you state were "not brought forth" to the California court should still be included in the Cert Petition. However, the reason you narrowed issues down to seek review in the California Supreme Court is even more applicable when filing a Cert Petition. Use some creative writing and include everything in the Cert Petition within the parameters of the Rules.
Re: Writ of Certiorari - Preservation of Error
The Supreme Court has the authority to decide "any issues that are raised or fairly included in the petition [for review] or answer [thereto]." So it might be possible to argue all issues raised in the court of appeal.
This is a very specialized area and requires some in depth analysis, but don't think you are automatically barred because issues 1 through 6 were in the table of contents of the court of appeal brief, but only issues 3,4 and 5 were in the table of contents of the petition for review. "Fairly included" is like beauty, it is in the eye of the beholder.
Re: Writ of Certiorari - Preservation of Error
No. You have to give the state Supreme Court a chance to rule on the issue before you take it to the U.S. Supreme Court. Issues you raised in the Court of Appeal but left out of the petition for review were likely waived.
Paring down the issues in the state Supreme Court is usually a good idea, but not at the expense of waiving viable issues you hope to include in a cert petition.
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