September 30, 2013

Perish, then publish? [UPDATED]

The Supreme Court did something very unusual last week.  In 420 Caregivers v. City of Los Angeles — a grant-and-hold medical marijuana case — the court ordered the Court of Appeal’s opinion published after it dismissed review in the case.

publish or perishWhen the Supreme Court grants review, a default effect is that a published Court of Appeal opinion in the case is depublished.    (Cal. Rules of Court, rule 8.1105(b), (e)(1).)  But the Supreme Court can override the default.  Subdivision (e)(2) of rule 8.1105 allows the court to order a Court of Appeal opinion published after the court has granted review in the case.  (See also rule 8.528(b)(3).)

The court has employed this particular default override sparingly.  In fact, our research found only one prior instance of its use, and that was over 25 years ago — Wickline v. State of California (1987) 741 P.2d 613.  (I seem to remember that this type of publication order happened at least once besides Wickline, but I can’t recall the case name.  Anybody out there have a better memory?)

What might make the 420 Caregivers publication order unprecedented is its timing.  In Wickline, the court ordered publication at the same time that it dismissed review.  In 420 Caregivers, the publication order came almost two months after dismissal of review.

An order dismissing review is final on filing.  Normally, the parties can do nothing further in the Supreme Court in the case and the court itself is fully done with it.  So, why did the court even entertain, let alone grant, a publication request after dismissing review?  As the court explained in its order, rule 8.1105(e)(2) provides that the court can order publication “at any time after granting review.”  (Our emphasis.)  (We won’t even get into how the publication request itself was considered appropriate when rule 8.1120(a) requires those requests to be submitted to the Court of Appeal and within 20 days after the filing of the Court of Appeal’s opinion.  The penumbra of rule 8.1105(e)(2)?)

Literally, the rule gives the Supreme Court the power to do what it did in 420 Caregivers.  “At any time” means what it says.  However, somehow I doubt the rule’s drafters envisioned a publication order so late in the game.  Under this precedent, the court could conceivably be filing requests to publish Court of Appeal opinions in cases that perished — by dismissal of review — 10 years earlier.

[UPDATE:  I obviously should have sent an email around the firm before posting.  Horvitz & Levy attorneys have identified these additional cases in which the court dismissed review and ordered publication:  New v. Kroeger (2009) 90 Cal.Rptr.3d 701 and Central Coast Baptist Ass’n v. First Baptist Church of Las Lomas (2009) 90 Cal.Rptr.3d 701 [both cases were grant-and-holds for the same lead case and in both Justice Kennard dissented from the publication order]; People v. Boysen (2008) 80 Cal.Rptr.3d 628; San Francisco Design Center Associates v. Portman Companies (1996) 911 P.2d 1373.

In all of these cases, unlike in 420 Caregivers, dismissal of review and publication occurred contemporaneously.]

2 Responses to “Perish, then publish? [UPDATED]”

  1. Here’s another case, People v. Chung, where the CSC granted a request to publish after it dismissed review.

    In both Chung and 420 Caregivers, the request to publish was made within 20 days of the dismissal order. (Cf. Cal. Rules of Court, rule 8.1120(a)(3).).

  2. Thanks, Larry, for pointing out the Chung case. That one is additionally interesting because it was the Court of Appeal that made the publication request.

    Also, I’ve since found a number of other cases in which the Supreme Court ordered publication at the same time as it dismissed review. Besides the cases mentioned above, I saw two in 2006, one in 2003, one in 2000, and nine between 1995 and 2000.

    So far, however, 420 Caregivers — and now Chung — are the only ones I’ve seen where the publication order came after review had already been dismissed.

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