Another Justice Liu separate statement on denial of review that will remain largely inaccessible

The Supreme Court today denied review in J.C. v. Superior Court, a juvenile dependency case.  Justice Goodwin Liu wrote a separate statement to accompany the denial order.  He, and other justices, have done that a few times (e.g., here) since he revived the long-dormant practice two years ago.

Unlike his past separate statements, Justice Liu’s statement in this case is not a dissent — no justice recorded a vote to grant review — but instead states, “Although I agree this case is not a proper vehicle for resolving the issues, lack of clarity in the statutory scheme has given rise to differing interpretations in the courts, and we may eventually have to intervene.”  He does say, however, that the issues involved “seem[ ] best resolved by the Legislature” because “[t]he statutory scheme is ambiguous, and the balance to be struck is fundamentally a policy decision.”  That’s consistent with Justice Liu’s concurring opinion in a different dependency case last month.

There is a problem with Justice Liu’s separate statement, but it’s not its substance.  Rather, because the Court of Appeal’s J.C. opinion is unpublished, access to Justice Liu’s separate statement will be limited.

The Supreme Court’s policy is to append separate statements to the pertinent Court of Appeal opinion.  When the Court of Appeal opinion is published, the opinion and the separate statement are published in the official reports of the Court of Appeal.  (See, e.g., Vergara v. State (2016) 246 Cal.App.4th 619, 652.)  When the Court of Appeal opinion is not published, however, the separate statement will be available only on the Supreme Court’s online docket (see, e.g., here), the opinion linked to on the Court of Appeal docket (see, e.g., here), and also maybe in a computer research database (see, e.g., People v. Cruz-Santos (Nov. 18, 2015, A139860) 2015 WL 7282040, at *18).

All Supreme Court separate statements should be published in the official reports, regardless of the publication status of the Court of Appeal opinion.  This could be accomplished by publishing those statements in the Supreme Court official reports, something we’ve advocated before.