September 26, 2011

Please continue to hold

Rule 8.512(d)(2) allows the Supreme Court to grant review in a case and then “order action in the matter deferred until the court disposes of another matter,” commonly known as a grant-and-hold order. Typically, a grant-and-hold case is one raising the same legal issue that is already before the court in “another matter,” called the lead case.

After the court “disposes” of the lead case, the court will normally dispose of the grant-and-hold case by either dismissing review (usually if the result in the Court of Appeal on the grant-and-hold case is consistent with the Supreme Court opinion in the lead case) or by transferring the grant-and-hold case back to the Court of Appeal for further handling in light of the opinion in the lead case. (Rule rule 8.528.)

So, once the lead case is decided, how long does it take the Supreme Court to dispose of the grant-and-holds? It’s not a particularly speedy process.

To begin with, the Supreme Court won’t dismiss or transfer a grant-and-hold case until the opinion in the lead case is final, which normally doesn’t happen until 30 days after the opinion is filed, but can be up to 90 days after the opinion, especially if a rehearing petition is filed. (Rules 8.532, 8.536.)

But even when the opinion in the lead case is final — and the court then issues a remittitur — a grant-and-hold case can still linger on the Supreme Court’s docket.

Looking at a number of grant-and-hold civil cases over the past two years shows a median four-week period between remittitur in the lead case and disposition of a grant-and-hold. The median case is Ameron International v. Insurance Company of the State of Pennsylvania. The remittitur issued on January 19, 2011 (two months after the Supreme Court filed its opinion, because a rehearing petition was filed) and the court dismissed review in the grant-and-hold case (Clarendon America Insurance v. Starnet Insurance) on February 16.

The outlier cases are Professional Engineers in California Government v. Schwarzenegger, an unusual fast-track case, where a grant-and-hold case was transferred back to the Court of Appeal the day after the remittitur in the lead case, and Cassel v. Superior Court, where 64 days elapsed between lead-case remittitur and a transfer order in the grant-and-hold case.

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