January 31, 2012
Presumably everyone reading this blog knows that the Supreme Court has the power to grant review on its own motion even when no petition for review has been filed. But did you know that the court can exercise that same power even when a petition for review has been filed? California Rules of Court, rule 8.512(c)(2) allows the court to deny the petition but then “order review on its own motion.” It might want to do that when the petitioner seeks review on an issue that doesn’t interest the court, and the court wants to review a different issue not raised in the petition.
But what about the timing of the court’s use of its power to grant “sua sponte” review? When the court wants to exercise its power to deny a petition but grant “sua sponte” review, it may do so “within 60 days after the last petition for review is filed.” (Cal. Rules of Court, rule 8.512(b)(1), (c)(2).) But here’s the rub. If the Supreme Court denies a petition for review before the 60-day period is up, can it then use the remainder of the 60-day period to decide whether to grant “sua sponte” review?
Read literally, the rule seems to say “yes”—which might mislead amicus curiae into believing they can use the full 60 days to urge the court to exercise that power. But the Supreme Court’s actual practice is always to order review on its own motion at the same time it denies a pending petition. In fact, that practice may be necessary to avoid a conflict with rule 8.272, which requires the Court of Appeal clerk to issue a remittitur “immediately after the Supreme Court denies review.” If the Supreme Court ever denied a petition for review but then later granted review on its own motion, the remittitur presumably would already have been issued, resulting in the world spinning out of control. To avoid such a clash between rules, and for consistency with the Supreme Court’s actual practice, the Judicial Council may need to revise rule 8.512(c)(2) to clarify that when the Supreme Court denies a petition for review, it must order any review on its own motion at the same time that it denies the petition.
And just what is the connection between spumoni ice cream and sua sponte review? Not much except that they sound like they should go together, and the title got you reading all the way to the end to find out, didn’t it?