The Supreme Court is uncharacteristically divided today in its last two opinions of the term. And one of them has better than average odds of being reheard — the average is very close to zero — if Governor Newsom appoints a replacement soon for Justice Ming Chin, whose last day on the court is today.
There’s a 4-3 decision in Reilly v. Marin Housing Authority. Justice Ming Chin authors the majority opinion, with concurrences by Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Joshua Groban. Chief Justice Tani Cantil-Sakauye writes the dissent for herself and Justices Carol Corrigan and Leondra Kruger.
The court split 5-2 in United Auburn Indian Community of the Auburn Rancheria v. Newsom. The opinion is by Justice Cuéllar and is signed by Justices Chin, Corrigan, and Kruger, and pro tem Fourth District, Division Three, Court of Appeal Justice Richard Fybel. The Chief Justice again authors the dissent and is joined by Justice Liu.
Rehearings are exceptionally rare, but the Reilly case presents the conditions that increase the chances a bit. If Justice Chin’s replacement is on the court while a rehearing petition is pending (two months ago, Governor Newsom’s office said to expect an appointment “in the next few months”), it would be the new justice and not Chin who decides whether to revisit the opinion. (See here.) Because Chin is in the majority, the new justice voting with today’s three dissenters would require a rehearing. (If a new justice has not yet been seated when a ruling on a rehearing petition is due, it’s unclear whether Chin or a Court of Appeal justice would be appointed as a pro tem to vote — the court’s Internal Operating Practices and Procedures provide that a justice in his position “may be assigned to continue to participate in the case.” (Emphasis added.))
We’ve been calling these “transition rehearings.” There was one of them when Justices Cuéllar and Kruger joined the court (see here and here), but there could have been four others (see here). There were no transition rehearing opportunities when Justice Groban was appointed. (See here.)
Summaries of the Reilly and United Auburn Indian Community opinions are coming later.