The California Supreme Court has a procedural tool at its disposal that most other state supreme courts don’t seem to have. The state constitution and the rules of court give the Supreme Court the power to “depublish” a Court of Appeal opinion; the opinion is wiped off the books and loses all precedential value, even though the Supreme Court never considers the case on the merits. During the tenure of Chief Justice Ronald M. George depublication of Court of Appeal decisions has been used less and less frequently to manage the development of California law. As the Judicial Council of California’s recent Court Statistics Report shows, the number of cases depublished fell from highs of 111 opinions per year in fiscal years 1989-1990 and 1991-1992 (during the tenure of Chief Justice Malcolm M. Lucas), to just 13 decisions in 2008-2009. And the Supreme Court’s own press release regarding fiscal year 2009-2010 reveals that, in that period, “an all time low of only four Court of Appeal opinions were ordered depublished by the Supreme Court.”
Nonetheless, the Supreme Court justices and their staff have told us they do consider depublication as an alternative to granting a petition for review, even if no one has requested depublication. The Court’s actions in last week’s conference confirm that continues to be the case. There, in one conference, the Court ordered two decisions depublished. Is this an anomaly? Or, with the imminent departure of Chief Justice George, does it signal the Court’s increasing willingness to employ depublication in appropriate cases? Only time will tell. Stay tuned to our weekly conference reports to see what happens.