When an appellate decision is published, it is binding on all Superior Courts throughout the state, and citable in all the appellate courts. But sometimes, the Supreme Court of California decides that a published case should not be. And when it exercises its power under California Rules of Court, rule 8.1125(c), that appellate decision—previously part of binding decisional law of the state—disappears.
For many years, Court of Appeal Presiding Justice has criticized this practice. And in his recent Daily Journal column, he does so again. Justice Gilbert does not urge abolition of rule 8.1125(c), only that, when the Court exercises it—undermining the hard work he and his colleagues put in to creating publish-quality work—it say why:
If the Supreme Court depublishes a case, tell us why . . . all of us, the bar, litigants, and (gulp) the justices. The court rule tell us depublishing is not a criticism of the decision or any law stated in the opinion. [Rule 8.1125(d) (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”).] So what gives? We live in an age of openness. If I went astray, I would like to know why. It would help me be a better justice. I can handle it . . . I guess.
Attorney and Supreme Court observer David Ettinger writes that, years ago, that is exactly what the Supreme Court did: “when it denied review (it was called “hearing” back then), [the Court] would sometimes append short statements to the Court of Appeal opinion in the case it was not going to hear. (The shadow docket . . . of California’s Supreme Court.)”
But Ettinger points to an interesting objection to that practice. Here is Ettinger again: “A problem with that practice — and with Justice Gilbert’s proposal — is that the Supreme Court is in effect issuing a decision of law without briefing (by the parties or any interested amicus curiae) or oral argument in that court.”
That is a valid point. But here is a counter: When the Court enters an order depublishing an opinion, that, too, is a legally significant exercise of judicial power—and done without notice or opportunity to object. The power to declare that a decision that was, but a moment ago, was the law, now is not the law, is significant. And whatever power the Court is wielding when it does that, that power would be more limited—not enlarged—if the Court obliged itself to explain its actions.
So put me firmly in the PJ Gilbert camp. If the Supreme Court is going to depublish, please explain.
Well, depub is itself legally significant. In a negative sense: it doesn't confirm any proposition, but removes it. Telling attorneys and the courts that what a moment ago was law is now not law is. So whatever power the Court is wielding when it does that, that power is limited—not enlarged—when the Court obliges to explain itself.
