Rule 8.1105(e)(1) provides that a published Court of Appeal opinion becomes depublished — and thus no longer citeable as precedent — when the Supreme Court grants review in the case.  After granting review, the Supreme Court can order the opinion published again, a power it only occasionally uses.   At least that’s how things work now.

Under a proposal that the Supreme Court released today, the default rule would be the opposite, that is, unless the Supreme Court orders otherwise, a published Court of Appeal opinion would stay published after review is granted, albeit “accompanied by a prominent notation” warning that review has been granted.  According to the proposal, this would put California in line with other American jurisdictions.  The proposal also recounts the 35+-year history of attempts to change the current rule.

In addition to changing the automatic depublication rule, the proposal includes two alternatives concerning the precedential effect of a published Court of Appeal opinion pending Supreme Court review.

Under one alternative, absent a conflict in the case law, a Court of Appeal opinion would remain binding precedent on all California superior courts while the case is pending review in the Supreme Court, which can be a period as long as three years.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“Decisions of every division of the District Courts of Appeal are binding . . . upon all the superior courts of this state”].)  If the Supreme Court ended up reversing the Court of Appeal, superior court decisions made in the interim based on the still-published Court of Appeal opinion would be vulnerable to reversal on appeal.

Under the second alternative, a published Court of Appeal opinion that the Supreme Court is reviewing would have “no binding or precedential effect” and could “be cited for persuasive value only.”

Finally, the proposal would add a provision stating the effect of the published Court of Appeal opinion after the Supreme Court’s decision in the case.  The Court of Appeal opinion would have precedential effect to the extent it was not inconsistent with the Supreme Court’s opinion, including the discussion of any issue that the Supreme Court did not reach.

The rule proposal comes directly from the Supreme Court, not, as with most rule changes, from the Judicial Council.  This is because the state constitution gives to the Supreme Court the exclusive authority to decide which of its opinions and those of the Court of Appeal are to be published.  While the proposal comes with the caveat that it has not been approved by the Supreme Court and is not intended to represent the court’s views, the court probably wouldn’t circulate it for public comment without at least tentatively being willing to adopt it.  If you want to try to talk the court out of (or into) making the proposed change, or want to weigh in on which precedential-effect alternative is best, you have until September 25 to submit a comment.