April 24, 2013

Orders of depublication appear to be on the rise, but what does it mean?

More than two years ago, we posed the question whether the transition from former Chief Justice Ronald M. George to Chief Justice Tani Cantil-Sakauye would be accompanied by an increase in the number of Court of Appeal opinions depublished by the Supreme Court. (For background on the practice of depublication, see former Justice Joseph R. Grodin’s excellent law review article.) We noted then that the number of depublished opinions had fallen from highs of 111 per year in fiscal years 1989-1990 and 1991-1992 (during the tenure of Chief Justice Malcolm M. Lucas) to an all-time low of just four opinions depublished in fiscal 2009-2010.

The answer to our question appears to be yes, depublication has enjoyed a modest but noticeable return to favor under the current Chief. The number of depublication orders certainly has not approached triple digits, as it did 20-odd years ago. But the number increased significantly once the Chief took office at the beginning of 2011, and has continued to increase since then. Ten opinions were depublished in fiscal 2011 (July 2010 to June 2011)—a 150 percent increase over the previous fiscal year’s all-time low. Fourteen opinions were depublished in fiscal 2012 (July 2011 to June 2012), which is a further 40 percent increase over the previous fiscal year. And with more than two months still to go in fiscal 2013 (July 2012 to June 2013), the Court has already ordered 15 cases depublished, one more than it ordered depublished in all of the previous fiscal year.

So what might be the significance of this upward trend in the number of depubs? Well, when the number was at rock bottom, we could say pretty definitively that the denial of a depub request indicated little about what the Supreme Court actually thought of the Court of Appeal’s opinion, a point we noted here. But the increase in depubs suggests that the Court does sometimes order appellate opinions depublished to signal its disagreement with them. We made that point here, when discussing the recent depublication of three similar wage-and-hour decisions, all from the Second District, Division Eight.

Another question potentially raised by the increase in depubs is whether an order of depublication is fair to the litigants in the particular case. After all, assuming arguendo that a grant of depublication indicates disagreement with some aspect of the Court of Appeal’s opinion—and it may not (see our linked posts above)—then in a sense those litigants’ dispute may have been adjudicated under an incorrect rule of law. Sure, the Court of Appeal opinion will have been depublished, but it still binds the parties and the change of publication status is typically cold comfort to the losing litigant.

Therefore, in cases where the Court is considering depublication of an opinion it views as erroneous, one might conclude that, in the alternative, the Court could correct the error by employing its power to grant review and transfer the matter back to the Court of Appeal for further proceedings in light of whatever authority the Supreme Court views to be most relevant. As we noted here, the Court issued a similar grant-and-transfer order this month in Smith v. State of California, S208714, a case in which there was no appellate opinion but in which the Court of Appeal had denied a pro per appellant’s motion to recall the remittitur following the dismissal of his appeal.

However, the Court has been reluctant to employ its grant and transfer power to correct substantive errors, and generally has limited its use to matters of appellate procedure. For jurisprudential reasons, and considerations of judicial economy, the Court might well be reluctant to expand its use of the power in this way. For example, the Court might feel the Courts of Appeal would be overburdened by such a practice. The Court might also feel that, when it comes to thorny substantive issues, the grant and transfer procedure does not permit the Court to provide the Court of Appeal with sufficient guidance. Finally, the Court might be reluctant to expand its grant and transfer powers to correct substantive errors because the Court’s role is not mere error correction (except in death penalty cases), but rather maintaining the uniformity of state law—a mission fulfilled by the judicious use of depublication. The Court might be concerned that using its grant and transfer power regularly to correct error could swamp its resources and distract it from its unique mission.

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