February 7, 2011

Justice Moreno will not pro tem after his retirement

Former Chief Justice Ronald George has been serving as an appointed pro tem member of the Supreme Court so he can participate in opinions for cases in which he heard oral argument before his retirement. That is typically what retiring members of the court do. Not so for Justice Carlos Moreno.

According to Laura Ernde in today’s Daily Journal [subscription required] and Cheryl Miller last week in the Recorder [subscription required], Moreno’s retirement at the end of the month will be a complete one. Cases in which he has heard oral argument but that have not been decided before March 1, presumably including the cases to be argued tomorrow, will be decided by a six-member court.

The Daily Journal article reports speculation that Moreno’s decision not to participate as a pro tem justice may be the reason that the court last week ordered postponed tomorrow’s argument in Pooshs v. Philip Morris USA, Inc. : “In practice, the court doesn’t schedule oral argument until it has a tentative opinion agreed to by at least four of the seven justices. Faced with a potential 3-3 tie, the court might opt to wait.”

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