Rule 8.1120 allows the Supreme Court, on request, to order an unpublished opinion to be published. The court doesn’t do that often, because it will invariably grant a request only if recommended by the court that authored the opinion and because such a recommendation will be made only when the authoring court has lost jurisdiction to itself order publication. (See, e.g., here.)
This week, the court granted a publication request on the authoring court’s recommendation. That’s not a big deal, except for the fact that the authoring court was a superior court appellate division. (The case is U.S. Financial, L.P. v. McLitus, an unlawful detainer action, and the newly published opinion is here.) To our knowledge, publication requests usually (always?) have concerned Court of Appeal opinions.
We’ve previously questioned whether the state constitution authorizes the Supreme Court to depublish appellate division opinions, even though a statute and rule allow it. The same uncertainty hangs over a publication order.
The constitution’s article VI, section 14 says, “The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate” (emphasis added), but it doesn’t mention appellate division opinions. It’s not a question whether the Supreme Court should have publication authority over appellate division opinions (I can think of no reason why not), but whether it actually has that power.