January 29, 2014

Supreme Court sets expedited briefing schedule . . . in the Court of Appeal

On Friday, Governor Brown and others asked the Supreme Court for writ review of superior court rulings that threaten California’s high-speed rail project.  The court today set an expedited briefing schedule for the writ petition.  However, the justices set that schedule not for proceedings in their court, but in the Third District Court of Appeal, to which the Supreme Court transferred the writ petition.

Writ petitions challenging superior court rulings are usually not first filed in the Supreme Court.  In fact, the rules of court provide that if a writ petition “could have been filed first in a lower court, it must explain why the reviewing court should issue the writ as an original matter.”  So, it’s not surprising that the Supreme Court would send this matter to the Court of Appeal, where the writ petition could have been initially filed.

It’s also not unheard of for the Supreme Court to set an expedited briefing schedule for a case.  What seems unusual is the Supreme Court setting a briefing schedule for the Court of Appeal.  (It must have happened; I just don’t know of a case.)

Also, the authority on which the Supreme Court relied in setting the expedited briefing schedule is puzzling.  The court cited a rule in the section of the Rules of Court that provides rules applicable to all courts, instead of a comparable rule in the part of the Rules applicable specifically to the Supreme Court and the Courts of Appeal.

Additionally, it’s unclear whether either rule gives a court the authority to set a briefing schedule in another court.  The rule cited by the Supreme Court (rule 1.10(c)) provides generally that “the court may extend or shorten the time within which a party must perform any act under the rules.”  The appellate court rule (rule 8.68) provides generally, “the Chief Justice or presiding justice may shorten the time to do any act required or permitted under these rules.”  It seems implied that “the court” or “the Chief Justice” or the “presiding justice” can only shorten time for things to be done in its/her/his own court.  Otherwise, the rules would seem to allow, for example, a Court of Appeal presiding justice to shorten the time for briefing in the Supreme Court.  On the other hand, who is going to challenge this application of the rules by the Supreme Court?

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