A while back, we wrote: “It is often said that the Supreme Court is not an error-correction court, meaning the court’s policy is to not use its discretionary review authority simply to fix a mistaken Court of Appeal decision. Instead, the court will normally opt to hear a case only ‘[w]hen necessary to secure uniformity of decision or to settle an important question of law.’ (Rule 8.500(b)(1).)” “Normally” is a key word there.
Sometimes there are cases the court hears that don’t fall into any of the rule 8.500(b) categories for when “[t]he Supreme Court may order review of a Court of Appeal decision.” Former Chief Justice Tani Cantil-Sakauye, speaking to a bar group (see here and here), discussed one such type of case that will occasionally get the court’s attention and send the justices on “rescue missions.”
Here’s what she said (video here):
“While we certainly will grant review on cases where there are serious conflicts in the law or something is of such substantial state interest that we need to jump in now, the Supreme Court has from time to time been known to get involved in what we call ‘rescue missions.’ [I]t just looks like something went wrong and one of the justices around the table would like to try [to] take a crack at it. The chief justice assigns cases and, so, when a justice raises his or her hand for a rescue mission, they get it. Sometimes the result doesn’t change, but at least we can change the language and at least we can do a little bit more explanation to help understand what might seem to be an unjust result.”
I’ve heard them called “save cases,” but I like the term “rescue missions” better.
What’s an example of a rescue mission? If I had to guess, I’d say the pending In re Hernandez case could be one. And it is a guess because Hernandez involves an issue of law I’m not an expert on.
In Hernandez, the court granted review of an opinion that seems very fact-specific and that doesn’t appear to involve the resolution of any new legal issue, which is probably why the opinion is unpublished (see rule 8.1105(c) for publication standards). Moreover, this is the third time the court has granted review in the case; the earlier two times were grant-and-hold orders, followed by remands for reconsideration in light of, first, a 2021 Supreme Court decision and, then, in light of a 2023 decision. It’s almost as if the Supreme Court is saying to the Court of Appeal, “we gave you two chances to reach the right result after your initial opinion and now, even though our two earlier opinions stated all the law we thought necessary for us to state in this area [although it’s possible the second decision — People v. Espinoza (2023) 14 Cal.5th 311 (see here) — was itself a rescue mission], we’re out of grant-and-hold options, so we’re going to rescue the defendant ourselves.” More about the Hernandez case here.
“Rescue missions” are an unwritten addition to the rule specifying when the court “may order review.” The court has observed other unwritten rule supplements, too. (See: Another example of an unwritten exception to the rule against citing unpublished opinions, and why the rule should be revised.)
