The U.S. Supreme Court has been in the news lately for making consequential rulings quickly, and without full briefing or oral argument, in cases on what critics call the court’s “shadow docket.”  (See here.)  But the California Supreme Court has had its own shadow docket over the years, too.

The court itself has said that, for an appellate opinion to have even just law-of-the-case effect (binding only in a single lawsuit), let alone law-of-the-state impact, a legal issue should be given “full plenary review” including “the opportunity for oral argument . . . and a written opinion.”  (Kowis v. Howard (1992) 3 Cal.4th 888, 897, 899.)  However, we’ll periodically discuss some of the court’s decisions, which, although maybe not as momentous as the high Court’s rulings, were nonetheless also made without the usual full process.

Let’s start with some early ones.

At the beginning of the last century, California shadow docket decisions resulted from the Supreme Court’s regular practice — long since discontinued — of appending short opinions to the end of Court of Appeal decisions that the Supreme Court had decided not to review.

It started just after the Courts of Appeal were created.  In one case, the Supreme Court said that parts of an appellate opinion concurred in by only two of the three justices “do not constitute ‘the law of the case’ for further proceedings.”  (Turner v. Fidelity Loan Concern (1905) 2 Cal.App. 122, 141.)  In another, the court said its declining to hear the case should “not . . . be understood as approving [a particular] portion of the opinion of the district court of appeal.”  (People v. Bunkers (1905) 2 Cal.App. 197, 210.)

Of particular note is Millsap v. Alderson (1923) 63 Cal.App. 518.  The appellate court had conceded that its opinion “may not be in entire agreement with” another Court of Appeal decision.  (Id. at p. 531.)  Instead of taking the case to resolve a conflict in the case law, however, the Supreme Court simply issued a very brief opinion on its denial of a hearing to expressly disapprove the earlier decision without explanation.  (Id. at p. 532.)

The Supreme Court no longer tacks on opinions to the ends of review-denied appellate opinions (individual justices will occasionally issue separate statements, however (see here)), but shadow docket decisions have continued into recent times by other means.  We’ll discuss some of those in the future.