October 30, 2014

To have and un-hold

Every Supreme Court grant of review is not necessarily followed by briefing on the merits, an oral argument, and a written opinion.

One thing the court can do is grant review and send the case right back to the Court of Appeal for further action.  This grant-and-transfer option isn’t used often, but, when it is, it is most commonly after the Court of Appeal has summarily denied a writ petition.

The court can also grant review and defer further action in the case “until the court disposes of another matter.”  (Rule 8.512(d)(2).)  These grant-and-hold orders are typically made when the court has already granted review in another case — the lead case — raising the same or similar issue.  A grant-and-hold case normally sits at the court until the lead case is decided, at which time the grant-and-hold case is returned to the Court of Appeal for reconsideration or review in the case is dismissed.

Sometimes, however, the court will change its mind about a grant-and-hold order and decide it wants to issue an opinion in a held case.  That happened yesterday in People v. Franklin.  The court had granted review in June and deferred further action pending disposition of two other cases raising issues regarding Eighth Amendment concerns about long sentences for crimes committed by juveniles.  But, “[t]he court has now determined that it should also order briefing in [Franklin] on the following questions:  (1) Did defendant’s sentence of 50 years to life for a homicide committed when he was a juvenile violate the Eighth Amendment?  (2) Was the first issue rendered moot by the enactment of Penal Code section 3051?”

The court can also un-hold a case when there will no longer be a decision in the lead case.  This has happened in cases handled by our firm, for example in Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992.  Flowers was a grant-and-hold for a lead case that later settled before decision.  When we then asked the court to allow briefing in Flowers, the court agreed.  Ten months later, after full briefing and oral argument, the court issued its opinion.  The same un-hold after a lead case settlement happened more recently in Baltazar v. Forever 21, Inc., which is awaiting argument.

Leave a Reply