The grant of a rehearing petition is one of the rarest of rarities at the Supreme Court. But the conditions could be right for such an action in People v. Grimes, in which the Supreme Court today filed its opinion.
In Grimes, as discussed, the court affirmed a death penalty judgment. Nothing unusual there. What is unusual is that there was a bare 4-3 majority and one of the majority justices — Marvin Baxter — is retired as of today and will not rule on any rehearing petition that the defendant files. This afternoon, there will be two new justices joining the court and, if they both vote with Justices Kathryn Werdegar and Goodwin Liu, the two permanent members of the court who dissented (a pro tem — Court of Appeal Justice Laurie Zelon — also dissented; see disagreeable pro tems), the case will be reheard.
4-3 votes and the replacement of one or more of the majority justices is historically the recipe for rehearing. Two cases come to mind.
In American Academy of Pediatrics v. Lungren (1996) 51 Cal.Rptr.2d 201, the Supreme Court upheld the constitutionality of a law requiring unemancipated minors to obtain parental consent before undergoing an abortion. Half of the court’s majority — Chief Justice Malcolm Lucas and retired Justice Armand Arabian (sitting by assignment) — was then replaced by Justices Ming Chin and Janice Rogers Brown, who both voted with the three dissenters to rehear the case. On rehearing, the court struck down the law as violating the state constitutional right of privacy. (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307.) The court again divided 4-3, instead of 5-2, because Justice Brown concluded the law was constitutional even though she had voted for rehearing.
A second case, as mentioned before, was when the Supreme Court went from finding MICRA unconstitutional (American Bank and Trust Co. v. Community Hospital (1983) 190 Cal.Rptr. 371) to upholding the law (American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359), both by 4-3 votes, because Justice Joseph Grodin replaced a pro tem justice who voted with the majority in the first decision.
It’s happened before. The Rose Bird Court reversed a death penalty case on Jan. 2, 1987, on their way out the door. Chief Justice Lucas and Justice Panelli dissented. When the newly appointed Justices arrived days later, they granted a rehearing, then affirmed the death sentence. People v. Wade, 44 Cal.3d 975. Seven years later, the 9th Circuit granted habeas corpus and threw the death sentence out.