Yesterday, the Supreme Court issued an unusual grant-and-hold order, waiting to act until after the Court of Appeal decides a different case.
Under rule 8.512(d)(2), the court can grant review of a Court of Appeal decision and defer all action in the case “until the court disposes of another matter or pending further order of the court.” A grant-and-hold order is typically made when the Supreme Court has already granted review in another case — the lead case — raising the same or a similar issue. The grant-and-hold case then normally sits at the court until the lead case is decided, at which time the grant-and-hold case is returned to the Court of Appeal for reconsideration or the Supreme Court dismisses review.
The grant-and-hold order in the high-profile public-pension case of Marin Association of Public Employees v. Marin County Employees’ Retirement Association, however, is anything but typical. Instead of deferring further action until the Supreme Court “disposes of another matter,” the court said the case would stay on the shelf pending a decision by the Court of Appeal in a different pension case — Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Association — or “pending further order of the court.”
Alameda County will be decided by a different division of the First District Court of Appeal than the one that decided Marin Association. Under a recent rule change, the Alameda County opinion can cite the Court of Appeal’s Marin Association opinion despite review having been granted. The Supreme Court might thus be interested in seeing the Alameda County court’s critique of the Marin Association opinion.
Once the Alameda County case is decided (oral argument has not been scheduled yet, but the case has been fully briefed for 10 months), the Supreme Court is likely to grant review there, too. It could then un-hold Marin Association and make it the lead case, it could make Alameda County the lead case and continue to hold Marin Association, or it could order briefing and argument in both cases. In any event, the justices of the Alameda County court will certainly be aware that the Supreme Court is keeping its eyes on them.