Appellate lawyers regularly (and often successfully) seek additional time from the appellate courts, usually for filing briefs (rule 8.212), and sometimes for such things as designating the appellate record (rule 8.121) or dismissing an appeal after a settlement (rule 8.244). But what about rehearing petitions?
The Supreme Court today granted the defendant’s request for an extra 6 days to petition for rehearing in People v. Masters, after the court last month affirmed the death sentence in that case. Can the court do that? Probably, but the rules are not entirely clear.
The Supreme Court rehearing rule (rule 8.536) provides, “Before the Supreme Court decision is final and for good cause, the Chief Justice may relieve a party from a failure to file a timely petition or answer.” That suggests that you can get relief after the fact, but not a prospective extension. However, the rehearing rule doesn’t include an express prohibition of an extension, and that omission is likely determinative, for two reasons. Generally, rule 8.60 allows the Chief Justice to extend time “to do any act required or permitted under these rules” and the general rule applies “[e]xcept as these rules provide otherwise.” The rehearing rule does not “provide otherwise,” at least not directly. Additionally, the rehearing rule is in contrast to the petition-for-review rule (rule 8.500), which does specifically “provide otherwise”; it says, “The time to file a petition for review may not be extended, but the Chief Justice may relieve a party from a failure to file a timely petition for review if the time for the court to order review on its own motion has not expired” (emphasis added). (By the way, sometimes you can get that relief.)
The same reasoning supports allowing the Court of Appeal to extend the time to file a rehearing petition. Like the Supreme Court rule, the Court of Appeal rehearing rule (rule 8.268) provides, “Before the decision is final and for good cause, the presiding justice may relieve a party from a failure to file a timely petition or answer,” but does not specifically prohibit an extension. As a practical matter, however, it might not make sense to ask for extra time in the Court of Appeal. An extension would squeeze the Court of Appeal because that court’s time to rule on a rehearing petition is much tighter than the Supreme Court’s: while the Supreme Court can — and routinely does — extend its time to rule by 60 days (rule 8.532), the Court of Appeal doesn’t have that luxury.
