MARIBEL M. v. Superior Court

— Effective January 1, 1998, the Judicial Council promulgated amendments to California Rules of Court, rule 39. IB (rule 39.IB) which, absent undefined “exceptional circumstances,” purport to compel appellate courts to decide such petitions “on the merits by written opinion” after “issu[ance] of an Order to Show Cause or an Alternative Writ.” We conclude these amendments are unconstitutional as inconsistent with statute. (See Cal. Const., art. VI, § 6.)

Petitioner seeks review of an order of respondent superior court directing that a selection and implementation hearing be held pursuant to Welfare and Institutions Code section 366.26 to consider a permanent plan for petitioner’s minor child. (All further statutory references to sections of an undesignated code are to the Welfare and Institutions Code.)

In 1989, the Legislature amended section 366.26 to provide that an order setting a selection and implementation hearing “is not an appealable order, but may be the subject of review by extraordinary writ.” (§ 366.26, former subd. (k), as amended by Stats. 1989, ch. 913, § 17, p. 3169.) The Supreme Court construed the amendment to mean the order setting such a hearing,…