Justice Goodwin Liu’s separate statement last week, dissenting from the denial of review in a Miranda-rights case, is a reminder that the rule against citing or relying on unpublished opinions has exceptions besides those stated in the rule itself.

Rule 8.1115(a) provides generally that “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”  Subdivision (b) provides limited exceptions, for when an opinion is “relevant under the doctrines of law of the case, res judicata, or collateral estoppel” or is “relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.”

But the thou-shalt-not-cite rule has additional exceptions, ones that are unwritten but largely accepted.  (See here and here.)  For example, it is considered appropriate to tell the Supreme Court in a petition for review about unpublished opinions so as to demonstrate that there is a conflict in the lower courts about a question of law or that an issue is frequently recurring.  Courts will sometimes cite unpublished opinions for similar reasons.  That’s what Justice Liu did.

In his separate statement in People v. Valencia, Justice Liu cited nine unpublished opinions involving the same police practice that was challenged by the defendant in the Valencia case, and he said those cases “are just the tip of the iceberg.”  Citing the unpublished opinions is a reasonable way to show Valencia raises “an important question of law,” which is an express ground for Supreme Court review.  Nonetheless, rule 8.1115’s terms seem to prohibit those citations.

The unwritten exceptions are valid, at least from a policy standpoint.  However, because they are unwritten and apparently violate the letter of the rule, applications of the exceptions are a bit untoward.  We’ve suggested that the Supreme Court amend the rule to make its wording more consistent with its spirit and to remove any taint of impropriety from use of a now-unwritten exception.  The rule might be changed to say that unpublished opinions cannot be “cited or relied on as binding or persuasive precedent” (new language emphasized).

A rule revision might also deter stretching the unwritten exceptions to the breaking point, which does happen.  One Court of Appeal engaged in such a stretch recently.  The court stated its position, said its reasoning “was well articulated” in another court’s 2006 unpublished opinion (which it cited), and then quoted at length from the nonpub.  The court attempted to absolve itself of any rule violation by saying, “While we do not rely on the unpublished opinion as authority, we adopt as our own its reasoning.”  (Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, 161, fn. 11.)  That certainly seems to violate both the letter and the spirit of rule 8.1115.

Maybe having the rule specifically ban citing unpublished opinions “as persuasive precedent” would have prevented the violation.  But, even if not, the change would at least give legitimacy to well-founded unwritten exceptions to the current rule.