Thirteen months ago, a Supreme Court rules change meant that granting review in a case no longer automatically depublishes the case’s Court of Appeal opinion (rule 8.1105(e)(1)(B)), but, pending review, the opinion loses its precedential effect (rule 8.1115(e)(1) [opinion “has no binding or precedential effect, and may be cited for potentially persuasive value only”].)
The rule also provides that the loss of precedential effect might be only temporary. After a Supreme Court decision, unless the court orders otherwise, “a published opinion
of a Court of Appeal in the matter, and any published opinion of a Court of Appeal in a matter in which the Supreme Court has ordered review and deferred action pending the decision, is citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.” (Rule 8.1115(e)(2).)
In most cases, application of the post-review rule should be straightforward. For example, a published Court of Appeal opinion in a grant-and-hold case that is consistent with the Supreme Court’s decision two months ago in the lead opinion has likely been resurrected to precedential status.
Some cases might get a bit tricky, however. Take today’s decision in People v. Valencia. The Supreme Court notes that its opinion “effectively overrules the majority decision” in a grant-and-hold case, but the court “assum[es], without deciding,” the accuracy of the majority decision on a subsidiary point. So, apparently, although the Court of Appeal majority decision’s holding is no longer of value, lower courts and counsel will be able to cite the decision’s subsidiary point as precedent with the notation, “overruled on other grounds in People v. Valencia.” Unless, of course, the Supreme Court affirmatively orders the Court of Appeal opinion depublished, which it still can do. In any event, it’s a good reminder that, under the new rules, the impact of a Court of Appeal’s opinion — and of different parts of the opinion — in a review-granted case can change.
Is the new rule retroactive? In the past, under the old rules, the grant of review rendered the Court of Appeal opinion uncitable, and it remained that way unless the Supreme Court changed its status. The new rule reverses that. But how does that affect pre-rule change cases? If a pre-rule change order granting review did not explicitly state that the appellate court opinion was no longer citable, and/or the ultimate order following review did not explicitly state that the appellate court opinion was not citable, are these old opinions now citable binding precedent? I ask this question because the issue actually came up for me recently in the course of some research (which didn’t pan out, so I didn’t have to resolve it), so I assume it will be a recurring issue in the future.