The Supreme Court this afternoon denied rehearing in Berkeley Hillside Preservation v. City of Berkeley. The denial of a rehearing petition is usually the most mundane of events; the outcome of such a petition is traditionally as suspenseful as a Turkmenistan election. But, when a petition to rehear a case with a non-unanimous opinion is ruled on by newly appointed justices who have replaced justices who were in the majority, things can get interesting. We’ve been calling those petitions “transition” rehearing petitions.
There were five transition rehearing petitions this year. One was granted — in People v. Grimes — when new Justices Mariano-Florentino Cuéllar and Leondra Kruger voted with dissenting Justices Kathryn Werdegar and Goodwin Liu. Two others were just barely denied (here and here) — in Johnson v. California Department of Justice and People v. Johnson; in both, Cuéllar joined dissenters Werdegar and Liu in wanting rehearing, but Kruger did not. In Berkeley Hillside, as in People v. Mosley (here), only Werdegar and Liu, but neither Cuéllar nor Kruger, voted for rehearing.
The Berkeley Hillside petition might have been a closer call than it appears, however. The court normally rules on rehearing petitions at its regular Wednesday conferences. Last Wednesday was the court’s last conference before expiration of the court’s time to rule this Friday (there was no conference today because the court is hearing arguments this week), but, at that conference, the court ruled on the People v. Johnson petition, but not on the one in Berkeley Hillside. The wait until almost the last minute on Berkeley Hillside and not ruling at a regular conference could be a sign of some uncertainty on how to rule, including possible discussions about whether to modify the court’s opinion.
Now that the transition rehearing petitions have all been decided, it will probably be quite some time before anyone is holding his or her breath waiting for a ruling on a Supreme Court rehearing petition.
[Update: After this post was published, the court’s website was updated to show that the court did in fact modify its opinion. The modification will likely soon be available here.]