June 1, 2016

Published Court of Appeal opinions will no longer be automatically depublished by the grant of Supreme Court review

The Supreme Court today announced adoption of rule changes that will end the automatic depublication of published Court of Appeal opinions when the Supreme Court grants review.  The changes, which were subject to extended comment and consideration periods, take effect on July 1.

The current, soon-to-be-replaced system provides that a published Court of Appeal opinion is depublished — and thus no longer citeable — when the Supreme Court grants review in the case, but allows the court to order the opinion published again at any time after review is granted.

Under the new rule, a published Court of Appeal opinion will remain published pending review unless the Supreme Court affirmatively orders the opinion depublished.  Because it is published, the opinion will be citeable while the Supreme Court decides whether it was correct or not.  But the new rule also specifically addresses the precedential effect of the opinion.

The Supreme Court opted for the so-called “Alternative B” regarding precedential effect.  Thus, while the case is on review, unless the Supreme Court orders otherwise, a published Court of Appeal opinion will have “no binding or precedential effect, and may be cited for potentially persuasive value only.”  That means superior courts throughout the state can, but will not be required to, follow the law stated in the opinion.

Alternative B was the better choice.  Under the other alternative — having the opinion remain binding precedent pending review — if the Supreme Court ends up reversing the Court of Appeal, superior courts would be making flawed rulings in the interim under the compulsion of the still-published (and binding) Court of Appeal opinion.

Of course, Alternative B can cause problems if the opinion under review creates a conflict with an earlier, unreviewed published opinion and the Supreme Court ultimately decides to disapprove the earlier case law.  In that situation, the superior courts will have necessarily been following the law stated in the opinion that is later disapproved.  As the new rule’s comment states, “when a decision that is pending review conflicts with another published Court of Appeal decision that is not under review, only that other published decision will continue to have binding or precedential effect on the superior court.”

The rule will further provide that, once the Supreme Court issues its decision, and unless the court orders otherwise, the Court of Appeal opinion again becomes “citable and has binding or precedential effect,” but only “to the extent it is [not] inconsistent with the decision of the Supreme Court or is disapproved by that court.”  This will revive the Court of Appeal opinion’s impact on those issues it decided that were not reviewed by the Supreme Court.

The new rule also requires that, when citing an opinion pending review, the citation “note the grant of review and any subsequent action by the Supreme Court.”

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