We’ve discussed how a change in the Supreme Court’s membership can sometimes lead to a rehearing in, and a change in the result of, a case that is first decided prior to new justices joining the court. In response to yesterday’s post about the possibility of such a rehearing in People v. Grimes, Judge Helen Williams of the Santa Clara County Superior Court left a comment with a good question: “why wouldn’t the same court decide that issue [i.e., whether to rehear a case] as decided the case in the first instance instead of the court as newly constituted?”
The short answer appears to be, because that’s the way the Supreme Court does things. The state constitution, statutes, and court rules do not seem to cover the issue. Rather, the answer lies in case law and the Supreme Court’s Internal Operating Practices and Procedures.
The case law goes back over 70 years, to Metropolitan Water Dist. v. Adams (1942) 19 Cal.2d 463. There, a Court of Appeal justice — sitting by assignment in place of an absent Supreme Court justice — joined a 4-3 majority. When a rehearing petition was filed, the previously absent Supreme Court justice voted with the 3-justice minority to grant rehearing. The party who had prevailed in the opinion was not happy and moved to set aside the rehearing order. The court denied the motion, concluding, “The assignment, always temporary, of a justice of the District Court of Appeal to the Supreme Court, does not and can not deprive a regularly constituted member of the Supreme Court of his constitutional functions, when he is able, ready and willing to act and no disqualification exists.” (Id. at p. 470.) The court also said, “The parties, of course, have the constitutional right to a judgment herein by a duly constituted court, but they have no right, constitutional or otherwise, to a decision by any particular judge or group of judges.” (Id. at p. 474.)
The court’s Internal Operating Practices and Procedures are very clear about the rehearing process for a court in transition. Section XIII. C. says, “If an assigned justice has participated in the decision of a case before this court, that justice will also participate in any further proceedings — including requests for modification, petitions for rehearing, and rehearings — until such time as the decision has become final. This procedure is to be followed unless the original assignment was necessitated by the absence of a regular justice of this court, in which event a regular justice, if able to do so, will participate in lieu of the assigned justice in the consideration of any petition for rehearing and, if rehearing is granted, in any subsequent proceeding.” Section D. directly covers the situation presented by the Grimes rehearing petition, “If a justice retires before a case in which he or she has heard oral argument is final, he or she may be assigned to continue to participate in the case. When a permanent replacement justice appointed to fill the vacancy created by the retirement of that justice has taken the oath of office, and the opinion has been filed, any petition for rehearing will be acted on by the permanent replacement justice.”
Apparently, not all courts do things California’s way. (See Lowe v. City of Eugene (1969) 254 Or. 518, 537-538 [459 P.2d 222, 223] [discussing two lines of precedent].)) But other courts’ contrary procedures made no difference to the Metropolitan Water Dist. court. The United States Supreme Court’s rule was dismissed as “one of judicial policy [that] works no compulsion on courts of other jurisdictions to adopt it, and involves no fundamental rights,” and other states’ procedures “likewise reflect policies in state practice with which we are not here concerned, at least to the extent that they should be adopted in preference to a practice in this state under which the courts and litigants have proceeded with apparent general satisfaction.” (Metropolitan Water Dist., supra, 19 Cal.2d at p. 475.)