August 28, 2015
We said a while ago that it is very unusual for the Supreme Court to use its authority to order republished a Court of Appeal opinion after the opinion has been automatically depublished by the grant of review. Just earlier this month, when the court exercised that power, we were still assuring that it really is a rarely used power. It now seems like we’ve been in denial. On Wednesday, the court again ordered a Court of Appeal opinion republished, seven weeks after it had dismissed review in the case, Hilton v. Superior Court.
The increase in republication orders might be a function of litigants only recently being aware that they could ask for such an action. In any event, republication is now clearly a viable option after review is dismissed in a case. Viable, that is, unless and until the court adopts a pending rule proposal, which would essentially render the post-review publication power a dead letter because the court’s grant of review would then no longer automatically depublish a Court of Appeal opinion in the first place.
There is an interesting aspect of the latest republication. The case was a grant-and-hold, waiting for the Supreme Court’s opinion in the lead case — People v. Ford. The now-republished Court of Appeal opinion, however, decides an issue that the Supreme Court did not reach in Ford, even though it looked like the court had granted review in Ford to resolve the issue. Has the Supreme Court, by its republication order, now endorsed the Hilton decision and thus resolved an issue without an opinion (sort of like the court did when, also on Wednesday, it denied a Ninth Circuit request for an answer to a state law question, but nonetheless cited a recent Court of Appeal opinion in its denial order)? Rule 8.1120(d) says you can’t read that message into the republication order, but it’s hard not to draw the inference.