December 7, 2011

Supreme Court accepts post-oral argument briefing in Brinker

Last Friday, the Court took the unusual move of accepting an amicus brief filed after oral argument. As discussed in this article by Kate Moser in The Recorder, nearly a month after the closely watched oral argument in Brinker Restaurant Corp. v. Superior Court, S166350, the Court granted the California Employment Law Council’s (CELC) application to file an amicus brief to address a question regarding prospective-only application of the imminent decision—a question not previously briefed by the parties, but raised by Justice Marvin Baxter at oral argument.

Citing unnamed appellate lawyers as sources, Moser notes that “[i]t’s rare for the high court to allow additional amicus briefs after the justices have heard the case.” Our research shows it is rare, but not unheard of. We found several cases in which the Court has either invited post-argument briefing from the parties or accepted a party’s application to submit additional briefing. (In re S.B. (2004) 32 Cal.4th 1287, 1296, fn. 3 [granting request for judicial notice of statute’s legislative history filed after argument]; People v. Frazer (1999) 21 Cal.4th 737, 775, fn. 32 [Court requested supplemental post-argument briefing regarding a statute’s constitutionality]; People v. Phillips (1985) 41 Cal.3d 29, 66, fn. 17 [after oral argument, the parties were invited to submit supplemental briefing regarding application of statute]; People v. Shaw (1984) 35 Cal.3d 535, 538 [concluding, based on post-oral argument supplemental briefing, that petitioner was denied his right to effective counsel at a probation hearing]; Knoll v. Davidson (1974) 12 Cal.3d 335, 346, fn. 9 [Court requested supplemental briefing regarding application of a decision handed down after oral argument].)

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