March 14, 2017

Unusual un-hold and re-hold orders

There are many grant-and-hold cases on the Supreme Court’s docket, particularly in criminal matters since a 2015 change in internal court procedure.  Most of these cases are disposed of summarily, in light of a decision in another Supreme Court case.  Occasionally, however, the court will un-hold a grant-and-hold, and order briefing, hear oral argument, and issue an opinion.  (E.g., here and here.)

The court un-held another case last month.  But, uncommonly, the briefing order in that case — People v. Guerrero — came only one week after the grant of review.  It’s possible the court, running up against a deadline to act on the petition for review, wanted to grant review but needed a little extra time to determine what issue it would decide.

More unusual was a hold order issued last week in People v. Enriquez.  First, it was actually a re-hold order, because the case originally was a grant-and-hold and had been un-held in November 2015.  Second, the re-hold order came just before the case was to be argued on the March calendar.  Unique circumstances led to this procedure.  Enriquez was one of three consolidated cases.  Five days before the argument, the court was informed that Enriquez’s counsel had “suffered an injury that will interfere with her ability to present oral argument as scheduled.”  Counsel for a defendant in one of the other consolidated cases stepped up and agreed to argue the matter instead.  Enriquez’s counsel asked that the argument be continued, but, although her injury is probably sufficient cause for a continuance, the court instead severed Enriquez from the other two cases, re-docketed Enriquez under a separate case number, heard argument in the still-consolidated two other cases, and ordered Enriquez held pending a decision in the two cases.  The court probably doesn’t expect to see something like that happen again.

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