With two narrow exceptions, rule 8.1115(a) states, “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.” “[M]ust not be cited or relied on by a court . . . in any other action” is broad and clear. However, as we’ve noted, litigants, Courts of Appeal, and the Supreme Court itself regularly violate the rule’s plain terms. And Supreme Court justices last month did it again — twice.

In Camacho v. Superior Court, concerning the right to a timely trial in involuntary commitment proceedings under the Sexually Violent Predator Act (see here), the court’s unanimous opinion cited a baker’s dozen of unpublished opinions (along with a number of published opinions) to support its statement that “[e]xtended delays — in some cases upwards of a decade — have not been uncommon.” (Typed opn. p. 14 & fn. 2.)

Similarly, in People v. Mumin, addressing the “kill zone” theory of attempted murder (see here), a two-justice concurring opinion included an appendix of kill-zone-instruction decisions by the Courts of Appeal filed after a four-year-old Supreme Court opinion. The concurrence said, “In nearly two-thirds of these cases (46 out of 70), the Court of Appeal found error involving the instruction, with 37 cases finding reversible error.” 58 of the 70 cited opinions are unpublished.

We’ve also written that unpublished-opinion citations like those in Camacho and Mumin are acceptable as a matter of policy and that rule 8.1115(a) should be revised to allow them, such as by only barring the citation of unpublished opinions “as binding or persuasive precedent.”

The Supreme Court, not the Judicial Council, is in charge of drafting and amending rule 8.1115 and the other rules regarding the publication of appellate opinions. It doesn’t look good when the court is violating the letter of one of its own rules. Rule 8.1115(a) should be changed to prevent Supreme Court justices — and others — from being scofflaws the next time they cite unpublished opinions for non-precedential reasons.


“Revisiting California’s No-Citation Rule”

Podcast about the no-citation rule

“Referencing” and “mentioning” unpublished opinions in petitions for review

Another citing of unpublished opinions that violates the rule but is accepted in practice

Another example of an unwritten exception to the rule against citing unpublished opinions, and why the rule should be revised

Questions about the Supreme Court declining to look at some unpublished opinions

“Using Unpublished Opinions In Calif. High Court Petitions”