Appellate Insights

Under current rules, the California Supreme Court’s decision to review a published appellate opinion automatically “depublishes” that opinion while review is pending — making it non-citable. This approach causes problems.  It eliminates useful discussions of un-reviewed issues.  And when the reviewable conflict among districts arises from the issuance of a strong and likely-correct opinion — rejecting an earlier, weaker one — the rule eliminates the stronger opinion for the 2-3 years that the Supreme Court takes to review and affirm it.

But change is at hand.  The Supreme Court has revised its rules to halt automatic depublication, beginning with grants of review in July.  The opinion granted review will have no “binding or precedential effect” while the case is on review (unless the Supreme Court orders otherwise), but it “may be cited for potentially persuasive value . . .”  This means that starting next month:

•  Trial courts can – but need not – follow the law stated in an opinion granted review.
•  Parties can still argue the minimal persuasive value of the opinion granted review. This helps cushion a downside of the rule-change: survival of weak opinions destined for reversal.
•  Once the Supreme Court decides the case, the Court of Appeal opinion will regain its binding, precedential effect, to the extent it’s not inconsistent with the Supreme Court decision.

The practical message: California’s complex appellate system is about to gain another layer of nuance.  And the only way to secure depublication of an adverse opinion will be a successful request for that specific relief from the high court.