In today’s Daily Journal [subscription], appellate lawyer Myron Moskovitz writes that the Supreme Court should have dumped a case in which it had granted review — McGill v. Citibank, N.A. — instead of deciding an issue that he says wasn’t the reason for agreeing to hear the case. In his article, “Can you DIG it, California Supreme Court?” (“DIG” standing for “dismissed, improvidently granted”), he says the court rules “seem to allow a DIG.” (Original emphasis.) They definitely do. The reason why requires a little DIGging into rule history.
Until about 15 years ago, former rule 29.4(c) specifically allowed the Supreme Court to dismiss review when review had been “improvidently” granted. In fact, that seemed to be the only ground for dismissing review. When the Appellate Rules Project Task Force revised the rules, the Task Force members (I was one) thought the dismissal rule needed changing — most dismissals are for reasons other than the court making a mistake, e.g., because of settlement or other events causing mootness, so why should the court need to sound like it’s confessing error when in fact it did nothing wrong? Rule 8.528(b)(1) thus now broadly provides, “The Supreme Court may dismiss review.”
Here is the original 2003 Advisory Committee Comment to the revised rule, which was then rule 29.3:
The former rule purported to limit Supreme Court dismissals of review to cases in which the court had “improvidently” granted review. In practice, however, the court may dismiss review for a variety of other reasons. For example, after the court decides a “lead” case, its current practice is to dismiss review in any pending companion case (i.e., a “grant and hold” matter under revised rule 28.2(c)) that appears correctly decided in light of the lead case and presents no additional issue requiring resolution by the Supreme Court or the Court of Appeal. The Supreme Court may also dismiss review when a supervening event renders the case moot for any reason, e.g., when the parties reach a settlement, when a party seeking personal relief dies, or when the court orders review to construe a statute that is then repealed before the court can act. Reflecting this practice, the Supreme Court now dismisses review–even in the rare case in which the grant of review was arguably “improvident”–by an order that says simply, “Pursuant to rule 29.4(c) [now 29.3(b)], California Rules of Court, the above-entitled review is DISMISSED . . . ” Revised subdivision (b) follows this practice by deleting as misleading the former reference to “improvident” grants of review. It is not a substantive change.
By the way, the Supreme Court does still occasionally dismiss review as improvidently granted. It did so just three months ago.
