It's Time to Replace Summary Depublication by the California Supreme Court With Something Better

JurisdictionCalifornia,United States
AuthorBy J. Anthony Kline and Jerome B. Falk, Jr.
CitationVol. 29 No. 2
Publication year2016
It's Time to Replace Summary Depublication by the California Supreme Court with Something Better

By J. Anthony Kline and Jerome B. Falk, Jr.

Until recently, appellate opinions certified for publication were automatically depublished when the California Supreme Court granted a petition for review. Despite numerous recommendations and requests starting in the late 1970s to eliminate this unusual practice, the Supreme Court had repeatedly refused to do so. It therefore took many by surprise when, several months ago, the Supreme Court invited public comment on a proposal to eliminate automatic depublication upon the grant of review. On June 1, 2016, the court adopted a proposal to abandon the practice. This is a significant improvement — but it corrects only one part of the problem caused by depublication of Court of Appeal opinions.

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The Supreme Court retains the power to summarily depublish an opinion selectively even though it meets the requirements for publication under Rule of Court 8.1105 (c)(1)(9), regardless whether review was sought. This practice has been criticized even more strongly than the policy of automatic depublication upon the grant of a petition for review, which the Court has just abandoned.

When the Supreme Court depublishes a Court of Appeal opinion, it gives no reason. The entire process is opaque. The Court may order depublication regardless of whether a party has filed a petition for review or whether the Court has received a request to depublish. Depublication orders do not disclose the identity of any entity or individual who sought depublication, or the subject of the depublished opinion, and this information is not easily available.

The Supreme Court may order depublication on its own motion, and when it does so the parties and the public are excluded from the process, as the Court has no duty to provide timely prior notice that it is considering such action to the parties to the case, the rendering court, or the public. Nor do the rules impose any limit on the period within which the Supreme Court may depublish an opinion. In fact, it depublished an opinion (In re Calderon (2010) 109 Cal.Rptr.3d 229) after it had been cited in 35 published and unpublished opinions of state and federal courts.

Although an order to depublish an opinion contains no statement of reasons or explanation, it has significant precedential effect. In California, trial courts must adhere to a published Court of Appeal opinion unless there is conflicting appellate authority, in which event the trial court must make a choice between the conflicting precedents. Depublication of an opinion that decides an issue of first impression eliminates a binding precedent. Conversely, where the depublished opinion was in conflict with an earlier decision, the depublication order has the effect of making the earlier opinion a controlling precedent. In short, depublication orders "make law." But they don't say why.

As has been said, "announcing an outcome without giving a reason is consistent with the exercise of authority, because it indicates that neither discussion nor objection will be tolerated." "Giving reasons," on the other hand, is "a way of showing respect for the subject, and a way of opening a conversation rather than forestalling one." (Schauer, Giving Reasons (1995) 47 Stan. L.Rev. 633, 658.) The time required to provide reasons may also "reduce excess haste and thus produce better decisions" and "drive out illegitimate reasons when they are the only plausible explanation for particular outcomes." (Id. at p. 657)

Summary depublication reflects the reality that the Supreme Court presides over an enormous judicial system. California Courts of Appeal now annually produce about 10,000 opinions (about 1,000 are published). The Supreme Court receives roughly 5,500 petitions for review and 3,000 habeas corpus petitions. It also must hear direct appeals in death penalty cases. And it grants discretionary review, and will in due course decide, a discrete number of additional cases.

That is a heavy load. Depublication allows the Court to "delete" opinions it deems problematic without devoting scarce resources to full-blown review and preparation of a comprehensive opinion.

Summary depublication has drawn considerable criticism and few defenders. Indeed, the only significant figure to have defended summary depublication is former Justice Joseph Grodin — and he has now changed his view. In favorably commenting on the proposed rule eliminating automatic depublication on the grant of review, Justice Grodin added that "[o]ver time he had come to believe that on balance arguments in support of the practice are in most situations outweighed by other considerations" and that the Court should reevaluate summary depublication to consider whether "the goal of avoiding doctrinal mischief might well be achieved by other and better means." This article proposes "other and better means."

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Problems with Summary Depublication

A depublication order leaves in its wake a frustrated litigant who prevailed on appeal, an even more frustrated litigant who lost in the Court of Appeal and who must now live with an adverse decision that the Supreme Court seemingly disapproved, present or future litigants who had hoped to cite the Court of Appeal as precedent, and a baffled trio of appellate justices. None will know why an opinion that met the criteria for publication was cast into oblivion. Nor does a depublication order have much corrective effect, as the Court of Appeal is usually left in the dark about how it misinterpreted precedent or otherwise erred.

As Bernard Witkin pointed out in 1977 in his Manual of Appellate Opinions, summary depublication often operates as a form of substantive judicial review that silently influences the development of the law. Because it achieves this without articulated judicial reasoning, the practice undermines the function of the courts. The shaping of law by appellate courts centers on the relationship between the publication of judicial opinions and the doctrine of stare decisis. Unexplained summary depublication interferes with the development of law in an open and orderly manner.

The opacity of the depublication process is striking. The secretiveness results primarily from the facts that persons affected by, or otherwise interested in, an opinion but not parties to the case ordinarily lack notice that the decision is the subject of a request for depublication that can be opposed, and there is little or no public notice the Supreme Court is considering depublishing an opinion. Secrecy also results from the fact that the Supreme Court's Internal Operating Practices and Procedures shed no light on the process. They do not reveal whether a letter request to depublish is "a petition, motion, or application" requiring a "conference memorandum" and discussion by the Court at a regularly scheduled "conference." It is impossible to know how much attention a request for publication receives or whether any internal written analysis is ever prepared or discussed at Court conferences. This invisibility facilitates sweeping controversial issues under the rug and one-sided "judicial lobbying" for depublication by special interests.

No compelling reason warrants use of an opaque process to achieve unexplained judicial decisionmaking. The Supreme Court appears to justify the practice on two related assumptions: first, that depublication orders need not be "in writing with reasons stated," as would otherwise be required by the California Constitution (art. VI, § 14), because they do not...

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