A few weeks back, the Supreme Court released for public comment a rule proposal to keep review-granted Court of Appeal opinions from being automatically depublished, which is what happens now. We noted that the Supreme Court can override the current default depublication rule by affirmatively ordering a review-granted opinion published at any time after granting review, but we said it is a power the court only occasionally uses.
Well, funny story — the very same day the court issued the rule change proposal, it also ordered published a Court of Appeal opinion in a case in which review had been granted and held, and then dismissed after a decision in the lead case.
But the publication order was unusual not just because it was the exercise of a rarely used power (really, it is), but also because the order made editorial amendments to a footnote in the Court of Appeal opinion. The Court of Appeal noted the Supreme Court had before it another similar case (the case that the Court of Appeal opinion would end up being a grant-and-hold for), gave the citation for the (depublished) Court of Appeal opinion in the case, and stated the issue the Supreme Court was going to decide. The publication order removed the citation and statement of the issue, and it also added a reporter’s note giving the citation for the now-decided Supreme Court opinion in the lead case.
Some have questioned whether the Supreme Court has the authority to change the text in a Court of Appeal opinion, even non-substantively. But I think the court does have that power. Article VI, section 14, of the state constitution vests in the Supreme Court the power over publication of Court of Appeal opinions. Further, in Government Code section 68902, the Legislature has stated that the official reports of appellate opinions “shall be published under the general supervision of the Supreme Court.” That’s good enough for me.