November 14, 2010

California Supreme Court publication order is not an expression of the court’s opinion

Some commentators are probably making too big a deal of last week’s Supreme Court order publishing a Third District opinion about Proposition 25, the recently approved initiative that allows the Legislature to adopt a budget by a majority, instead of a 2/3, vote.

The pre-election opinion concerned the ballot title and summary prepared by the Attorney General. In its opinion, the Court of Appeal stated that the initiative would not “allow the Legislature to circumvent the existing constitutional requirement of a two-thirds vote to raise taxes.” The initiative opponents liked that holding, but were disappointed that the court didn’t publish the opinion. Under rule 8.1120 of the California Rules of Court, they asked the court to order the opinion published.

Because the court had ordered its opinion final immediately, it had no jurisdiction to grant the request. So, as required by rule 8.1120(b)(1), the court forwarded to the Supreme Court the request and the court’s recommendation for ruling on the request. The court recommended granting the request, which is what the Supreme Court did.

One commentator suggested that the Supreme Court’s publication order could “put to rest” the “fears of opponents” that Proposition 25 would allow taxes to be raised by majority vote. Another commentator made similar remarks. That overstates things.

Although the opinion may now be cited as precedent and is binding on all Superior Courts, an issue of this importance would likely be decided by the Supreme Court and we don’t know how that court would rule on the issue. As rule 8.1120(d) says, “A Supreme Court order to publish is not an expression of the court’s opinion of the correctness of the result of the decision or of any law stated in the opinion.”

In fact, probably the only reason the Supreme Court ordered the opinion published is because that’s what the Court of Appeal recommended. If the Court of Appeal had recommended denying the publication request, the opinion almost certainly would have stayed out of the official reports.

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