The parties in a recent review-granted case submitted to the Supreme Court what the docket shows as a “[j]oint application for extension of time to file the opening brief on the merits, answer brief on the merits, reply brief on the merits, amicus briefs, and response to amicus briefs.” The joint application was denied two days later.
That news is a good prompt for a reminder to practitioners about a related Supreme Court rule. Rule 8.520(a)(5) provides, “The time to serve and file a brief may not be extended by stipulation but only by order of the Chief Justice under rule 8.60.” (Link added.)
In contrast to rule 8.520(a)(5), parties have the inalienable right in the Court of Appeal to timely stipulate to extensions of up to 60 days per brief. (Rule 8.212(b)(1)&(2).) In fact, the Supreme Court has supported this right . . . in the Court of Appeal. (See: Supreme Court strongly suggests Court of Appeal should comply with stipulated extension rule.)
The lack of a Supreme Court stipulation option shouldn’t be great cause for concern, however. The Chief Justice is typically fairly generous in granting rule 8.60 briefing extension applications. And, although you can’t stipulate to a Supreme Court briefing extension, you can still tell the court that your extension application is unopposed if your opposing party is agreeable.
A postscript about the case mentioned at the top of the post: the day after the joint extension application was denied, the defendants filed their opening brief on the merits.
