March 27, 2014
Justice William Brennan is famous for, among many other things, his “rule of five” — i.e., without five votes, you can’t do anything at the United States Supreme Court. A modest corollary for California Supreme Court practice is that you can’t get your petition for review granted without four votes.
One counsel got a harsh, real life lesson in that rule yesterday when his petition for review came up one vote short of a grant. In Maral v. City of Live Oak, the court denied review, but Justices Kennard, Werdegar, and Liu all voted to take the case. (The Court of Appeal had upheld a city ordinance prohibiting the cultivation of marijuana for any purpose.)
It’s not very unusual for there to be one or two dissenters when the court denies a petition for review, but a 4-3 denial is rare. From our records, such a denial hasn’t happened in a civil case since October 2011 and, before yesterday, has happened in civil cases only four times since March 2008. (Two malicious prosecution actions, an insurance case, and an inverse condemnation matter.)
It’s hard to come so close to success.