May 24, 2011
The Supreme Court has the power to order a Court of Appeal opinion depublished. (Cal. Rules of Court, rule 8.1105(e)(2) [“The Supreme Court may order that an opinion certified for publication is not to be published . . .”].) It is clear that a depublished appellate decision cannot be cited as precedent. (Cal. Rules of Court, rule 8.1115(a).) But what is the effect of the Court’s denial of a request for depublication? By denying depublication, does the Court signal its agreement with the Court of Appeal’s decision, which will remain citable? Or, is the Court merely allowing the issue to percolate so that the Court can address it later, perhaps after the law develops more fully in the Courts of Appeal?
The Rules of Court provide that an order directing publication or depublication “is not an expression of the court’s opinion of the correctness of the result of the decision or of any law stated in the opinion.” (Cal. Rules of Court, rules 8.1120(d), 8.1125(d).) This language seems to leave little room for debate: by ordering publication or depublication, the Court takes no position on the issues presented in the Court of Appeal opinion.
Those who would take a contrary view might point out that the rules address only the grant, and not the denial, of a depublication request. They can also point to past instances where courts and commentators—including Justice Kennard—have found meaning in the Court’s actions on depublication requests. (People v. Dee (1990) 222 Cal.App.3d 760, 765 [“to insist that [orders regarding depublication] . . . are without significance would be to perpetuate a myth”]; cf. People v. Saunders (1993) 5 Cal.4th 580, 608 (dis. opn. by Kennard, J.) [“This court’s denials of review and orders of depublication in numerous cases . . . cannot simply be dismissed as meaningless”]; Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 443, fn. 2 [noting Supreme Court’s denial of request for depublication, followed a month later by depublication of contrary decision]; Grodin, The Depublication Practice of the California Supreme Court (1984) 72 Cal.L.Rev. 514, 514-515 [opinions are depublished because the Supreme Court “consider[s] the opinion to be wrong in some significant way”].)
But most of those statements were made in the late 1980’s and early 1990’s, when the Court depublished a great many decisions. Now the Court orders almost no decisions depublished. Indeed, as we discussed in an earlier post, the number of cases depublished has fallen from highs of 111 opinions per year in fiscal years 1989-1990 and 1991-1992 (during the tenure of Chief Justice Malcolm M. Lucas), to just four opinions depublished in fiscal year 2009-2010. So, because almost all depublication requests today are denied, it seems fair to say that the Supreme Court’s views on a particular issue cannot be gleaned from its denial of a depublication request.