Yesterday was the first Supreme Court conference since the effective date of the new rule that ended the automatic depublication of published Court of Appeal opinions when the Supreme Court grants review. At the conference, the court granted review of 4 published Court of Appeal opinions, all of which now remain citeable.
There are some caveats, however. First, because of the grants of review, the opinions (except for one, perhaps (see below)) no longer have “binding or precedential effect, and may be cited for potentially persuasive value only.” (Rule 8.1115(e)(1).) Second, “Any citation to the Court of Appeal opinion must also note the grant of review and any subsequent action by the Supreme Court.” (Ibid.; see also rule 8.1105(e)(1)(B) [“any such Court of Appeal opinion, whether officially published in hard copy or electronically, must be accompanied by a prominent notation advising that review by the Supreme Court has been granted”].)
Here is the very first batch of published opinions that are staying on the books despite the grant of review: People v. Gonzalez, People v. Davis, People v. Johnston, and People v. Valdez.
Valdez presents an interesting situation regarding the new rule. The Supreme Court there denied the petition for review, but granted review on its own motion at the Court of Appeal’s request, and transferred the case back to the Court of Appeal with directions to vacate its decision and to reconsider the cause, including the People’s motion to abate the proceedings in light of the defendant’s death. Under the new rule, the grant of review doesn’t depublish the Court of Appeal’s opinion, but the opinion’s precedential effect is unclear.
Rule 8.1115(e) describes the precedential effect only of opinions (1) “[p]ending review and filing of the Supreme Court’s opinion” and (2) “[a]fter decision on review by the Supreme Court,” but neither provision applies in Valdez because there will be no Supreme Court opinion and there has been no Supreme Court decision (see rule 8.528(d) [“After ordering review, the Supreme Court may transfer the cause to a Court of Appeal without decision but with instructions to conduct such proceedings as the Supreme Court orders” (emphasis added)]). Also, the Supreme Court can’t use in Valdez its power under the new rule 8.1115(e)(3) to order that an opinion is not citable or to specify the precedential effect of an opinion, because that power applies only to “an opinion covered by (1) or (2),” and the Valdez opinion is not one of those.
The only way for the court to eliminate the uncertainty whether superior courts are bound by the Valdez opinion might be to depublish the opinion on its own motion under rules 8.1105(e)(2) and 8.1125(c)(2). That would be an ironic disposition for one of the first opinions covered by the new anti-automatic-depublication rule.