On Friday, the Judicial Council amended rule 8.66, effective immediately, to give the Council’s Chair — i.e., California’s Chief Justice — broader emergency authority to expand appellate time periods statewide.
To date, Chief Justice Tani Cantil-Sakauye had delegated to the six individual appellate districts the power to issue extension orders, leading to varying time periods throughout the state. A memorandum that circulated the rule proposal to Council members conceded that, “In implementing these orders, . . . the courts have become aware of shortcomings in the rule.”
So far, the Chief Justice has not issued any orders under the new rule that we’re aware of.
The amended rule allows the Chief Justice to issue tolling orders, not just extension orders as before. The circulating memorandum explains the significance: “Tolling stops or suspends the running of time; when the tolling period ends, the time starts running again. By contrast, extending time adds days to the end of a time period. Tolling gives courts flexibility and can be easier to apply.”
The amendment also fixes the part of the rule that had most inhibited statewide extension orders. The rule previously allowed a statewide extension of only 14 days with the possibility of just one additional 14-day order, as opposed to authorizing individual courts to issue 30-day extension orders with an additional 30-day extension. Now, the Chief Justice can issue a statewide 30-day tolling or extension order with an unlimited number of 30-day renewals.
Under the new rule, the Chief Justice can “[t]oll for up to 30 days or extend by no more than 30 days any time periods specified by these rules.” (“These rules” means the appellate rules in Title 8 of the California Rules of Court. (See rule 8.1.)) She can also “renew an order . . . for additional periods not to exceed 30 days per renewal.”
The circulating memorandum states that the Chief Justice “may authorize that the revisions to be effected by the amended rule apply retroactively to orders already in effect, including insofar as those prior orders applied to deadlines before the rule was amended.”
Rule 8.66 used to provide for extensions of “the time to do any act required or permitted under these rules.” This wording possibly left untouched certain court time periods that didn’t require or permit an act, such as those measuring when a Court of Appeal or Supreme Court opinion becomes final. (See here and here.) The gap is filled by now permitting tolling or extensions of “any time periods specified by these rules.” And, indeed, an Advisory Committee Comment to the amended rule says, “The tolling and extension of time authorized under this rule include and apply to all rules of court that govern finality in both the Supreme Court and the Courts of Appeal.”
Tolling or extending all finality rules could create new uncertainties, however. Certain Court of Appeal and Supreme Court decisions and orders are final on filing, such as denials of supersedeas and original writ petitions, and denials of Supreme Court petitions for review. If an order tolls or extends those “finalities,” can parties file rehearing petitions or reconsideration motions that were otherwise barred? We suppose the Chief Justice could make clear in any tolling or extension order that those particular finality rules are unchanged.
The memorandum also explained that no public comments were sought in advance of adopting the rule 8.66 amendment “[d]ue to the urgent situation created by the COVID-19 pandemic and the need for the appellate courts to adapt quickly and continue to provide necessary service.” But the chairs of various Judicial Council committees “recommend circulating an invitation to comment shortly after the amended rule takes effect.”
The Council approval of the rule amendment was unanimous, except for the Chief Justice’s apparent abstention.
