When the Supreme Court orders an opinion depublished, the opinion disappears (or, as Presiding Justice Arthur Gilbert memorably put it, the opinion “never happened”); the opinion does not appear in the official reports and cannot be cited as precedent in other cases. A recent depublication request and the court’s handling of it raise questions about the practice that are not clearly covered by the rules.
In People v. Spriggs (2014) 224 Cal.App.4th 150, the Court of Appeal transferred a case from the appellate division of the superior court and reversed a conviction. (According to the Court of Appeal, and contrary to the appellate division’s opinion, the statute that prohibits the “using” of a cellphone “while driving” does not bar a driver from looking at a map on a cellphone.) No problem so far, but things then went unconventional.
The Court of Appeal asked the Supreme Court to depublish the appellate division’s opinion, which was published (215 Cal.App.4th Supp. 1). Was that a proper request? I’m not so sure, and not just because the request was filed a day after the 30-day deadline (Cal. Rules of Court, rule 8.1125(a)(4)) for depublication requests.
First, can a Court of Appeal be the one to request depublication? The rule provides that “[a]ny person” can make a request. Another rule generally defines ” ‘[p]erson’ ” as including “a corporation or other legal entity as well as a natural person.” OK, so maybe a court can be considered an “other legal entity” under that definition. But the more troublesome question is whether the Supreme Court can depublish an appellate division opinion, regardless of who is making the request.
The Supreme Court’s depublication authority comes from article VI, section 14, of the California constitution, which says, “The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person.” The Supreme Court can thus decide which of its own opinions and which Court of Appeal opinions are “appropriate” to publish. But the constitution does not appear to give the Supreme Court the power over publication of superior court appellate division opinions. The depublication rules seem to allow the Supreme Court to depublish an appellate division opinion (rule 8.1105, subds. (b) and (e)(2)), but the rules were specifically adopted under article VI, section 14, and the rules can’t be inconsistent with the constitution.
None of this bothered the Supreme Court, however. It ordered the appellate division opinion depublished. But then things got even weirder.
It turns out that the appellate division opinion — which was filed in March 2013 — had already been in the bound volumes of the official reports for about five months when the Supreme Court ordered it depublished. When the Reporter of Decision’s office pointed this out, the court last week vacated its depublication order.
Spriggs shows not only that the Supreme Court might depublish superior court appellate division opinions (even if its authority to do so isn’t clear), but that the Supreme Court can reconsider its depublication orders. Thus, questions of publication status can theoretically be left unresolved indefinitely. We learned that when the court last year ordered published a Court of Appeal opinion almost two months after it had dismissed review in the case. Now we also know that depublication orders can be vacated, although we don’t expect to see that happen again any time soon, if ever. It might be appropriate to amend the rules to specify some time limits for Supreme Court publication and depublication actions.
It should be such that when a court of appeal accepts transfer of a published appellate division case, that case is depublished automatically, pending the (published) opinion by the court of appeal, which will be authoritative rather than just persuasive. Witness this problem in People v. Harris, issued by the Riverside Appellate Division in April. 4/2 has accepted the case and will issue an opinion, presumably published because it’s an issue of first impression in California (overlay of implied consent vs. 4th Amendment protection for DUI blood draw). But we will still have the appellate division opinion on the books. Something wrong with that…..
Helen, the rule you propose makes a lot of sense. I’m just not sure it’s authorized by the state constitution. Article VI, section 14, is the source of the opinion-publication (and depublication) power and it mentions the opinions of only the Supreme Court and the courts of appeal, not the superior court appellate divisions. A statute (Gov. Code section 68902) and court rules (rules 8.887(c), 8.1105(b)) extend publication power to appellate division opinions, but are they constitutional? I’m not sure, although I definitely haven’t researched the question exhaustively.
Well, wow! At least he got his ticket dismissed and bail money back. Very small victory. I tried to fight mine because my hands were on the wheel and there is video showing this and I was still convicted. some people believe that you can’t even touch your phone at all while driving. $161, so what. But I wanted to fight it like Spriggs and make them eat it. Unfortunately, I became ill and had surgery, causing me to miss the deadline to get the brief in time. I tried to get another extension, but it was not allowed despite my illness. I could not find a lawyer to take the case – even though I would have gladly paid for it.
It’s unfortunate that most information commonly available to the average person does not state that this opinion was de-published. I have a background as a paralegal and it was a struggle to find this nugget. What now happens to the lower court’s opinion which affirmed the conviction now that the opinion which supplanted it is de-published?
Also, when I applied for something on the 31st day, I was told no and that I was late – why do they get to if the rest of us can’t? 30 days only means 30 days for those who are more equal than others…