Vedanta Society of Southern California v. California Quartet Ltd.

I. Introduction

Tie votes mean different things in different contexts. The fictitious spelunkers in Lon Fuller’s famous law review article, finding themselves trapped in a cave and resorting to cannibalism to stay alive for the requisite amount of time until a rescue party reached them, were sentenced to death for murder when the mythical five-person Supreme Court of Newgarth, reviewing the conviction of a lower court, tied two to two. The tie was the result of one justice on the five-person panel dithering to the point that he was unable to resolve his own doubts, and consequently withdrawing from the decision of the case. (See Fuller, The Case of the Speluncean Explorers (1949) 62 Harv. L.Rev. 616, 631, 645.) Fuller’s spelunkers’ case demonstrated the classic common law rule that a tie, in the context of an appeal from a lower court, leaves the decision being appealed from intact. His Justice Tatting in effect cast a vote to affirm by withdrawing from the case.

It is not quite that way in the statutory thicket that is California’s Environmental Quality Act (Pub. Resources Code, § 21000 et seq.), CEQA for short. Appeals in American jurisprudence typically do not…