March 30, 2015

Supreme Court keeps an eye out for cases in which to grant review on its own motion

The Supreme Court last week granted review on its own motion in Maas v. Superior Court, which raises the issue whether Code of Civil Procedure section 170.6 permits a peremptory challenge to be asserted, before an order to show cause has issued, against a judge who is assigned to assess a petition for writ of habeas corpus.

Review on the court’s own motion (rule 8.512(c)) is uncommon.  When it does occur, it’s often because the court is asked to take that action by somebody who couldn’t file a petition for review.  For example, in In re L. H., the Court of Appeal asked the Supreme Court to grant review on its own motion and send the case back after the Court of Appeal had dismissed an appeal for failure to file an opening brief and the appellant’s counsel didn’t protest the dismissal until the Court of Appeal had already lost jurisdiction and the time had expired to petition for review.  The Supreme Court obliged.

In Maas, however, the Supreme Court granted review and is keeping the case for decision, and nobody seemed to have asked for review of the Court of Appeal’s published decision.

So, how did Maas get on the Supreme Court’s radar screen?  We don’t know. 101209-N-2943B-001 The Supreme Court won’t comment on specific cases, but a response to an inquiry explained that the court receives information about cases from a variety of sources.  And one of those sources is the court’s staff attorneys, whose responsibilities include reviewing the advance sheets and bringing to the court’s attention matters that it might want to act upon on its own motion.

We didn’t realize that was part of Supreme Court staff’s job description.  Nor can we tell if that was the catalyst for the court’s action in Maas, nor what it is about the Maas case that interests the court.  However, our reading of the Court of Appeal’s opinion and the Supreme Court’s statement of the issue presented indicates the Supreme Court might reverse the Court of Appeal and rule for the Attorney General on a ground the Attorney General apparently hasn’t argued yet.  Shades of People v. Grimes?

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