Unlike the U.S. Supreme Court, California’s Supreme Court has a deadline for ruling on petitions for review.  Under rule 8.512(b), “The court may order review within 60 days after the last petition for review is filed.”  But the rule allows the court to give itself extra time — “Before the 60-day period or any extension expires, the court may order one or more extensions to a date not later than 90 days after the last petition is filed.”  Finally, the rule says, “If the court does not rule on the petition within the time allowed . . ., the petition is deemed denied.”  (See here about how the court works up a petition for review.)

It’s not unusual for the court to use extended time to rule on a petition.  (See here.)  When it does so, however, the court will occasionally — and inadvertently — not enter the necessary extension order within the 60-day period.  That happened recently in Mallano v. Chiang, the judicial pay case in which six newbie superior court judges subbed in for an entirely recused Supreme Court, and denied the petition for review 84 days after the petition’s filing.

In Mallano, the court (before recusal) sought to remedy the oversight by entering an extension order nunc pro tunc to a time within the initial 60 days.  I questioned whether the belated order might cause a jurisdictional problem.  Unbeknownst to me, in a procedurally similar case seven years ago, the court rejected a jurisdictional challenge and validated the nunc pro tunc procedure.

In Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 529, fn. 5, the court explained, “Concluding we needed more time, we put the matter over to a later petitions conference.  The act of putting the matter over necessarily included our extending time for review.  However, the clerk inadvertently failed to enter an order reflecting that act.  Under the circumstances, the nunc pro tunc order merely caused the record to show something that was actually done but that was mistakenly not entered in the record at the time the act was done.”

I’m not sure Pineda is right.  Rule 8.512 requires an extension “order” within the original 60-day period.  The court internally deciding to “put the matter over,” without announcing it to the public or the parties, does not seem equivalent to making an “order.”

Regardless, here’s a suggestion.  Instead of having to resort to the nunc pro tunc artifice in the rare situation when an extension order is not timely entered, why not just amend rule 8.512 to scrap the extension-order requirement altogether and simply give the court 90 days to rule on the petition?  There would certainly be nothing to prevent the court from ruling earlier than that.  And, in those cases where the court “puts over” a petition to a time beyond the current 60-day period, it would no longer have to worry about the ministerial task of entering an extension order.